No. 84-302 IN THE SUPREME COURTOF THE STATEOF MONTANA 1985

MARJORIE L. ROBINSON,ANNA M. SCHRADE and MARJORIE L. ROBINSON on behalf ofAMY J. SCHRADE, aminor, PlaintiffsandAppellants,

RICHARD L. SCHRADE, Defendantand Respondent.

APPEAL FROM: District Court of the Nineteenth Judicial District, Inandfor the County of Lincoln, TheHonorable Robert

### M. Holter, Judgepresiding.

COUNSEL OF RECORD:

ForAppellants: Sverdrup & Spencer; Scott B. Spencer,Libby,Montana

For Respondent: L. Charles Evans, Libby,Montana

Submittedon Briefs: Feb. 8, 1985 Decided: April 2, 1985'

Filed: 

### '385

ClerkMr. Justice Frank E. Morrison, Jr. delivered the Opinion of the Court. This is an appeal from the judgmentofDistrict Courtof the Nineteenth Judicial District in the County of Linco1.n modifying a written contract by a subsequentoral agreement. On June 9, 1983 Marjorie L. Robin.sonbrought an action to enforce the terms of a written agreement entered into by Robinson and her divorced spouse,Richard L. Schra.deonApril 24, 1969. After a non-jury trial Judge Robert M. Holter entered a judgment in favor of Schrade holding that the written contractwasmodified by a subsequentoral agreement. Robinson appeals. We affirm. The marriage of Robinson and Schrade was dissolved 

### by decree on January 17, 1969. Robinson was granted custody of their two children and Schrade was ordered to pay $125 per child permonth. Therewasno division ofmaritalproperty. Robinson lived in the familyhouse and made the monthly $130 mortgagepayments. On April 24, 1969 Robinson and Schrade signed an agreement prepared by Schrade's attorney wherein the parties agreed to attempt to sell their house for aminimum price of $20,000 with the net proceeds to be placed in a savings account for the college education of their children. The April agreement also provided that if Robinson vacated the house prior to its sale, Schrade's child support obligation would be reduced to $50 per child per month since Schrade would be responsible for the house payment. The parties intended to submit the April agreement for court approval. They did not. After investing $3,400 in improvements, the parties were unable to selltheir house. F.obinson moved out of the family residence when she remarried on August 23, 1969. This occurred while Schrade

was vacationing with tlieir children. Upon returning home from their vacation, Schrade found Robinson preparing toremove furnishings and other items of personal property. Schrade protested Robinson's actions since no property settlement agreementhad been negotiatedbetween them. Robinson agreed to Schrade's proposed settlementby which he received the house in return for Robinson taking any furnishing she wished and receiving title to the family car. On August 28, 1969 Robinson signed a quitclaimdeed to her interest in the house and Schrade transferred title to the car to Robinson. Robinson took the personal property she desired without interferenceby Schrade. On September 1, 1969 Robinsonmoved to Idaho where shehas resideduntil the timeof this action. A petition for modification wasprepared September,1969 seeking only to modify the child support provisions of the Decree. The petition made no reference to the sale of the house or any educational fund. Thepetition was never signed by the parties orpresented to the court. After Robinson and the childrenmoved to Idaho,Schrade continued his support obligations. His payments remained current. He paid medical, dental and optical bills. He contributed to his oldest daughter's tuition and expenses related toher cosmetology school. Since her move to Idaho over thirteen years ago, Robinson never questioned Schradewith regard to the sale of the house or the establishment of a savings account for the higher education of their dauqhters. The oldest daughter testified that during her visits with her father at their family residence she never discussed his plans to sell the house or set up educational funds. Richard never sold the house. An educational savings account was never opened. In June, 1983,Robinson and the two daughters initiated the action against Schrade to enforce the April 1969 agreement and force Schrade to sell the family home and remit all proceeds to them for educationalpurposes. Presiding without a jury, the trial judge found that the oral arrangementexecuted in August 1969 modified the written agreement of April 1969. Robinson appeals. The following issues arepresented: 1. Whether substantial credible evidence supports the trial court's findings and conclusions that the written contract was modified by a subsequent executed oral agreement. Respondent creates a second issue: 2. Whether defendant-respondentIs failure to call his former attorney as a witness at trial required the court to presume that such testimony would have been adverse to him. The trial court did not address this supplementary issue. We find this question unessential to resolution of the dispute. Like the lower court, we discuss only the dispositive first issue. The appellate standard for review is clear. The findings of the trial court are presumed to be correct if supported by substantialevidence. Montana Farm ServiceCo. v. Marquart & Roth (1978), 176 Mont. 357, 578 P.2d 315, 316. The trial court found that Robinson accepted Schradels oral agreementwhich provided that she would take the family car and any furnishing she wanted in exchange for Schrade receiving the family house. The trial judge found that the parties executed this oral agreementby endorsing the necessary documents. Robinson signed a quitclaim deed transferring her interest in the house to Schrade and took her desired items of personal property. Schrade transferred title to the family vehicle to Robinson. He resided in the family residence and assumed the indebtedness after Robinson vacated the house and moved to Idaho. The trial court held that Schrade paid medical, dental and optical bills. In addition to keeping his child support payments current, he assisted his oldest daughter in post-high school education.Substantial evidence supports all of these findings. Robinson testified that she signed the quitclaim deed, took her personalproperty and moved to Idaho never to communicate with Schrade about the sale of the house. Schrade's oldest daughter admitted thather father assisted her inher tuition and. expenses for cosmetology school. The record contains uncontroverted, credible evid.encewhich supports the trial court's judgement. A££inned.

We concur: -2' 

# rhie£Justice

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