No. 81-393 INTHE SUPREME COURT OF THE STATE OF MONTANA 1982

INRE THE MARRIAGEOF EVELYN I. BAKER, Petitioner and Respondent,

-vsDEWEY F. BAKER, Respondent and Appellant.

Appeal from: DistrictCourtof theFourthJudicial District, Inand forthe County of Missoula, The Honorable James B. Wheelis, Judge presiding.

Counsel of Record: For Appellant: Recht and Greef

## ,Hamilton, Montana

For Respondent: TerryWallace, Missoula, blontana

Submittedon Briefs: March 11, 1982 Decided: June 10, 1982

Filed: 

# J!J#1 0

## 1982

### Mr. ~ustice John Conway Harrison delivered the Opinion of theCourt. This 

### is an appeal from the judgment of the ilistrict Court of theFourth Judicial District, inand fortheCounty of Missoula, arisingoutof amarital dissolution. At the timeof their divorce, Evelyn and Dewey Baker entered intoa property agreement datedJune 27, 1988. This agreement was approved by the court and entered into the decreeof dissolutionon 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 separateobligationsof the appellant husband. Obligations incurred sincethatdateby theparties individuallywere 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 tohave reasonablevisitationrights and certain periods of timeduring the summer and holidays; in addition, the appellant husband was tomake arrangements with thewife 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 conveyanceof theapartment toprovide an income tothewife of at least $1,000 per month. This was 

### set up so in theevent the gross rents received from such apartments did not exceed $1,BB0 for any one month, the respondent wife would notifythehusband of suchdeficitand he was tomake up the difference in

### a cashpayment within fifteendays. Pursuant totheproperty agreement the appellanthusband agreed to deposit in the Farmers StateBank inVictor, 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 thisaccount atany 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 atany 

### timethe 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 thanmaking 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 appellanthusband. The inkwas hardlydryon thetrialjudge'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 toprevent the appellanthusband from exercising hisvisitation rights and petitioned theDistrict Court for a hearing



### on arrearages and support payments and numerous otherproblems shewas having asa resultof having custody of the children. Hearings were held on the wife's motion to enforce the decree on May 15, 1981and 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 alterationor 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 staythe execution and enforcement of the order, and to modify the support provisions of the original order. Itwould appear that the appellanthusband, realizing that themotions 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 appellanthusband 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 thathearing

was included on thisappeal. On August 13, 1981, the court did enter findings of fact and conclusions of law pursuant to the request of the husband inhisJune 29, 1981, motion. Five issues arepresented for consideration: 1. Whether the order dated June 18, 1981, should be vacated and reversed for failure to include findingsof fact and conclusions of law.

### 2. Whether the change of visitation ordered by the supplemental decree dated May 15, 1981, was supported by findingsof factorby 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 theorder 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 thevisitationprivilegesof the husband be changed. We are not involved with an appeal from ajudgment following trial. The last sentenceof Rule 52(a),M.R.Civ.P., disposesof the issue, stating: 

### "Findingsof fact and conclusions of law are unnecessary on decisions of motions under Rules 12or 56 or any other motion except as provided inRule 41(b).I' 

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

### is not applicable here. As

### a result, we conclude thatunder Rule 52(a) findings of fact and conclusionsof law were not required under the rules. Issue two involves the change of visitation by the appellant husband. As 

### in somany caseswhere theword "reasonable" visitation rights are put into the decree, the interpretation of the word "reasonable" is 

### left to twounreasonable 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 liveby. The evidence submitted at the hearings clearly shows that the husband abused hisprivileges under thevisitation rights 

### set forth in the original decree. The trial court merely clarified those rights by permitting both parties to have alternativeweekend visitations and setting a specific forty-day summer visitation. 

### In addition, thecourt provided for themanner inwhich the appellant husband was toarrange visitations. These restrictions and clarifications were warranted by the evidence presented to the court, and there is clearlyno abuse of 

### itsdiscretion. The third issue 

### is directed to arrearages which the appellant husband argues are not supported by the evidence. We find this

### a frivolous issuebecause the appellant admits that the $2,369.27 arrived at by the District Court was agreed upon atthe 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 littleattention on appeal. The court had sufficient evidence before it asto the amount due on June 15, 1981, and the amount in arrearage. There 

### is ample evidence for the court's findingsand conclusions, and

we find no abuse of discretion. The next issue is directed at the requirement that appellant pay for propertymanagement feesfor the apartment complex deeded to the respondent. The four-plex apartmentconlplex involved here 

### is within several blocks of the University of Montana and 

### is described asbeing among themost rentable type of property inMissoula. 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. Asone of his witnesses, appellant had a real estate agent familiar with the rentals inMissoula testify. Histestimony was to the effect that for a ratherminor fee, approximately 5%, he could manage the property and successfullykeep 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 thismatter. 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 astomake the termsunconscionable. 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 thatdue tovacancies and other economic factors, the rental income fellshortof thatanticipated. The property agreement here was writtenby appellant and 

### is silenton what thewife was todo if thehusband owed her child support when the escrow account was established. 

### In this instance, the escrow account was not established imri~ediatelyafter 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 asprovided by the decree was a continuing obligationduring the period in which thevarious 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 theminor 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 inanyof theDistrict Court's actionsherein, the trialcourt is affirmed. Respondent is awarded costson appeal.We

### concur: