No. 81-393 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

IN RE THE MARRIAGE OF 

EVELYN I. BAKER, 

Petitioner and Respondent, 

-vsDEWEY F. BAKER, 

Respondent and Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

In and for the County of Missoula, The Honorable 

James B. Wheelis, Judge presiding. 

Counsel of Record: 

For Appellant: 

Recht and Greef , Hamilton, Montana 

For Respondent : 

Terry Wallace, Missoula, blontana 

Submitted on Briefs: March 11, 1982 

Decided: June 10, 1982 

Filed : J!J# 1 0 1982 
Mr. ~ustice John Conway Harrison delivered the Opinion of 

the Court. 

This is an appeal from the judgment of the ilistrict 

Court of the Fourth Judicial District, in and for the County 

of Missoula, arising out of a marital dissolution. 

At the time of their divorce, Evelyn and Dewey Baker 

entered into a property agreement dated June 27, 1988. This 

agreement was approved by the court and entered into the 

decree of dissolution on that same date. Under the terms of 

the property agreement, among other provisions, the parties 

agreed that all family obligations of the parties incurred 

by them prior to August 7, 1979, were to be the sole and 

separate obligations of the appellant husband. Obligations 

incurred since that date by the parties individually were to 

be the separate obligations of the party who incurred the 

obligations. 

The parties agreed that the wife would have full 

custody and control of the five minor children, that the 

husband was to have reasonable visitation rights and certain 

periods of time during the summer and holidays; in addition, 

the appellant husband was to make arrangements with the wife 

prior to these visitations. The husband was to pay all 

medical and dental bills. 

The husband was to convey to the wife an apartment 

complex owned by the parties in Missoula, Montana, the 

income from which was to be used by her as and for the 

obligation of the husband to pay support, maintenance and 

care and education of the parties' minor children. The 

appellant husband further agreed with regard to the 

conveyance of the apartment to provide an income to the wife 

of at least $1,000 per month. This was set up so in the 
event the gross rents received from such apartments did not 

exceed $1,BB0 for any one month, the respondent wife would 

notify the husband of such deficit and he was to make up the 

difference in a cash payment within fifteen days. 

Pursuant to the property agreement the appellant husband agreed to deposit in the Farmers State Bank in Victor, 

Montana, the sum of $1,000 and to maintain that account in 

the name of the respondent wife, and to further maintain a 

balance in the account of $1,000. With regard to this 

agreement it was understood that the respondent could draw 

upon this account at any time the gross rents received from 

the apartments were less than $1,000 for any one given 

month. In the event that the wife drew on the account, the 

husband had the obligation to return the account to its 

$1,008 balance within the fifteen-day period. In addition, 

the agreement provided that at any time the respondent wife 

drew upon the account, when the gross rents received from 

the apartments were equal to or exceeded $1,000, or drew 

upon the account for the reason other than making up for the 

reduction in the gross rents received from the apartments, 

for any given month, the account in the Farmers State Bank 

would be closed and all proceeds therein returned to the 

appellant husband. 

The ink was hardly dry on the trial judge's signature 

to the dissolution agreement before the parties were once 

again back in court. On February 13, 1981, the respondent 

wife petitioned the District Court for a restraining order 

to prevent the appellant husband from exercising his visitation rights and petitioned the District Court for a hearing 

on arrearages and support payments and numerous other 
problems she was having as a result of having custody of the 

children. 

Hearings were held on the wife's motion to enforce 

the decree on May 15, 1981 and May 22, 1981, in the Ravalli 

County Courthouse. Following these hearings the court, on 

June 18, 1981, entered an order based upon the evidence of 

the hearings. Within less than two weeks, the appellant 

husband filed motions for a new trial and for alteration or 

amendment of the order of the District Court, both pursuant 

to Rule 59, M.R.Civ.P. The husband further moved to set 

aside the order because there were no findings of fact or 

conclusions of law, to stay the execution and enforcement of 

the order, and to modify the support provisions of the 

original order. 

It would appear that the appellant husband, realizing 

that the motions for a new trial and for amendments were not 

timely, on July 22, 1981, filed a notice of appeal. Thereafter, on November 4, 1981, the appellant husband moved for 

a stay of execution. That motion was denied after a brief 

hearing, and the appellant husband then moved the court to 

reestablish visitation with his children. That motion was 

heard on December 21, 1981, and a transcript of that hearing 

was included on this appeal. 

On August 13, 1981, the court did enter findings of 

fact and conclusions of law pursuant to the request of the 

husband in his June 29, 1981, motion. 

Five issues are presented for consideration: 

1. Whether the order dated June 18, 1981, should be 

vacated and reversed for failure to include findings of fact 

and conclusions of law. 
2. Whether the change of visitation ordered by the 

supplemental decree dated May 15, 1981, was supported by 

findings of fact or by evidence. 

3. Whether the order of the court establishing the 

appellant's arrearages in the amount of $2,849 is supported 

by the evidence. 

4. Whether the order of the court compelling the 

appellant to pay management fees is supported by the law or 

the facts. 

5. Whether the order compelling a reestablishment of 

escrow account is an impermissible modification of the 

binding agreement of the parties. 

Here, the decree of dissolution of marriage was 

entered on July 14, 1988. By motion dated February 13, 1981, 

the wife sought to enforce the decree as to the payment of 

child support and real property taxes, and also sought that 

the visitation privileges of the husband be changed. We are 

not involved with an appeal from a judgment following trial. 

The last sentence of Rule 52(a), M.R.Civ.P., disposes of the 

issue, stating : 

"Findings of fact and conclusions of law are 

unnecessary on decisions of motions under 

Rules 12 or 56 or any other motion except as 

provided in Rule 41(b) .I' 

Rule 41(b) pertains to involuntary dismissal of actions and 

is not applicable here. As a result, we conclude that under 

Rule 52(a) findings of fact and conclusions of law were not 

required under the rules. 

Issue two involves the change of visitation by the 

appellant husband. As in so many cases where the word "reasonable" visitation rights are put into the decree, the 

interpretation of the word "reasonable" is left to two 
unreasonable parties. That is the situation here, and the 

District Court found it necessary to modify the decree to 

set forth a scheduled visitation that both parties could 

live by. 

The evidence submitted at the hearings clearly shows 

that the husband abused his privileges under the visitation 

rights set forth in the original decree. The trial court 

merely clarified those rights by permitting both parties to 

have alternative weekend visitations and setting a specific 

forty-day summer visitation. In addition, the court provided 

for the manner in which the appellant husband was to arrange 

visitations. These restrictions and clarifications were 

warranted by the evidence presented to the court, and there 

is clearly no abuse of its discretion. 

The third issue is directed to arrearages which the 

appellant husband argues are not supported by the evidence. 

We find this a frivolous issue because the appellant admits 

that the $2,369.27 arrived at by the District Court was 

agreed upon at the hearings after considerable evidence was 

placed before the court. Appellant takes issue with the 

fact that the trial court failed to give him credit of $150 

for a stove given to the wife at the time of dissolution. 

This type of pettiness deserves little attention on appeal. 

The court had sufficient evidence before it as to the amount 

due on June 15, 1981, and the amount in arrearage. There is 

ample evidence for the court's findings and conclusions, and 

we find no abuse of discretion. 

The next issue is directed at the requirement that 

appellant pay for property management fees for the apartment 

complex deeded to the respondent. The four-plex apartment 
conlplex involved here is within several blocks of the University of Montana and is described as being among the most 

rentable type of property in Missoula. Following the taking 

over of the complex by the wife, there was testimony to the 

effect that there were vacancies in the apartments. Therefore, the income from the property did not come up to expectations, and the arrearage complained of by the respondent 

wife occurred. 

The husband testified that this was very rentable 

property and there should have been people in the apartments 

throughout the time involved. In his view the vacancies 

occurred because of rnisrnanagement by respondent. As one of 

his witnesses, appellant had a real estate agent familiar 

with the rentals in Missoula testify. His testimony was to 

the effect that for a rather minor fee, approximately 5%, he 

could manage the property and successfully keep it full. 

As a result of this testimony, the court found that 

the property could earn more under professional management 

and, because of the evidence produced by the husband that 

this is what he wanted, the trial court directed that the 

property be managed by a competent real estate person in 

Missoula and that the husband pay for same. We find no 

merit to the appellant's contentions in this matter. 

The next issue is directed at the trial court's reestablishment of the escrow account set up in the property 

settlement agreement. Appellant argues that the court had 

no authority to modify the terms of the binding separation 

agreement unless it found that the welfare of the children 

was being affected or that a change of circumstances had 

occurred so substantial and continuing as to make the terms 
unconscionable. 

The child custody and property agreement provided 

that the escrow could be closed by the husband if the wife 

"draws on said account for a reason other than making up for 

such reduction in gross rents received from the apartments, 

for any given month . . . " The respondent wife testified 

that due to vacancies and other economic factors, the rental 

income fell short of that anticipated. 

The property agreement here was written by appellant 

and is silent on what the wife was to do if the husband owed 

her child support when the escrow account was established. 

In this instance, the escrow account was not established 

imri~ediately after the dissolution was granted but several 

months later because the parties were signing mutual deeds 

and transferring property. However, the necessity to care 

for the children as provided by the decree was a continuing 

obligation during the period in which the various deeds were 

being passed back and forth by the husband and wife and 

their attorneys. Under these circumstances, we find no 

breach by respondent of the agreement, by withdrawing money 

and using it for the support of the minor children. Therefore, the court did not abuse its discretion in directing 

the husband to reestablish the account and comply with the 

terms of the agreement. 

Finding no abuse of discretion in any of the District 

Court's actions herein, the trial court is affirmed. Respondent is awarded costs on appeal. 
We concur :