No. 84-302 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

MARJORIE L. ROBINSON, ANNA M. 

SCHRADE and MARJORIE L. ROBINSON 

on behalf of AMY J. SCHRADE, 

a minor, 

Plaintiffs and Appellants, 

RICHARD L. SCHRADE, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Nineteenth Judicial District, 

In andfor the County of Lincoln, 

The Honorable Robert M. Holter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

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

For Respondent: 

L. Charles Evans, Libby, Montana 

Submitted on Briefs: Feb. 8, 1985 

Decided: April 2, 1985' 

Filed: '385 

Clerk 
Mr. Justice Frank E. Morrison, Jr. delivered the Opinion of 

the Court. 

This is an appeal from the judgment of District Court of 

the Nineteenth Judicial District in the County of Linco1.n 

modifying a written contract by a subsequent oral agreement. 

On June 9, 1983 Marjorie L. Robin.son brought an action 

to enforce the terms of a written agreement entered into by 

Robinson and her divorced spouse, Richard L. Schra.de on April 

24, 1969. After a non-jury trial Judge Robert M. Holter 

entered a judgment in favor of Schrade holding that the 

written contract was modified by a subsequent oral 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 per month. There was no division of marital property. 

Robinson lived in the family house and made the monthly $130 

mortgage payments. 

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 a minimum 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 sell their 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 to 
remove furnishings and other items of personal property. 

Schrade protested Robinson's actions since no property settlement agreement had been negotiated between them. Robinson 

agreed to Schrade's proposed settlement by 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 quitclaim deed to her interest in the 

house and Schrade transferred title to the car to Robinson. 

Robinson took the personal property she desired without 

interference by Schrade. On September 1, 1969 Robinson moved 

to Idaho where she has resided until the time of this action. 

A petition for modification was prepared 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. The petition was never signed 

by the parties or presented to the court. 

After Robinson and the children moved 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 to her cosmetology school. 

Since her move to Idaho over thirteen years ago, 

Robinson never questioned Schrade with 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 educational purposes. Presiding without 

a jury, the trial judge found that the oral arrangement 
executed in August 1969 modified the written agreement of 

April 1969. Robinson appeals. 

The following issues are presented: 

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-respondent Is 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 substantial evidence. Montana Farm Service Co. v. 

Marquart & Roth (1978), 176 Mont. 357, 578 P.2d 315, 316. 

The trial court found that Robinson accepted Schradels 

oral agreement which 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 agreement by 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 personal property and moved to Idaho never to communicate 

with Schrade about the sale of the house. Schrade's oldest 

daughter admitted that her father assisted her in her tuition 

and. expenses for cosmetology school. The record contains 

uncontroverted, credible evid.ence which supports the trial 

court's judgement. 

A££ inned. 

We concur: 

-2' 

r hie£ Justice 

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