No. 89-480 IN THE SUPREME COURT OF THE STATE OF MONTANA 1990

IN RE THE MARRIAGE OF LOIS A. MANNIX, n/k/a LOIS-AUSTIN, Petitioner and Respondent, and RALPH E. MANNIX, JR., Petitioner and Appellant.

APPEAL FROM: District Court of the Third Judicial District, In and for the County of Powell, The Honorable John Henson, Judgepresiding.

COUNSEL OF RECORD: For Appellant: Byron W. Boggs, Missoula, Montana For Respondent: Kerry N. Newcomer; Geiszler & Newcomer, Missoula, Montana

Filed: submitted on Briefs: Feb. 15, 1990 ~ecided:March 27

### , 1990

f ClerkJustice John C. Sheehy delivered the Opinion of the Court.
Appellant Ralph 

### E. Mannix Jr. (Mannix) appeals the order issued by the Fourth Judicial ~istrictCourt, Missoula County, granting ~ois A. Mannix, now Lois Austin 

### ma us tin), interest on the sum of $5,050.00. The District Court orderedMannix topay Austin interest from January 20, 1982,to August 8, 1989, on a $5,050.00 principal obligation created by the parties1Property Settlement and Custody Agreement. Mannix now appeals the District Court order. We affirm. ~annixls issue on appeal can be summarized as follows: 

### id the ~istrict Court err by awarding 

### us tin interest on a debt created by the parties! property settlement agreement? Austin and p an nix were married on November 28, 1964. On August 20, 1981theywere granted a legal separation. The parties entered intoa Property Settlementand CustodyAgreement onJanuary 20, 1982, as part of a Joint Petition for Dissolution. On January 21, 1982, the District Court issued a final decree, incorporating the parties1 Property Settlement and Custody Agreement. The property settlement provided that 

### ann nix pay $5,050.00 to Austin for her interest in a Deer Lodge residence. The payment was due upon sale of the property. After thedissolutionof the marriage,Mannix never listed the property for sale or made the $5,050.00 payment to Austin. ~ccording to the record, Mannix allegedly either rented or loaned thepremises to relatives and made no attempt to sell it. ~espite demands by Austin for payment,

### ann nix refused tomake the payment provided by theAgreement and Decree to

### ust tin. In September of 1988, 

### ust tin filed a petition with the DistrictCourt,in which sherequested,among otherthings,payment of the $5,050.00,recovery of interest on that amount fromJanuary 20, 1982 and her attorney fees. 

### ann nix responded denying anyobligation to pay the principal sum. He claimed that since the property had never been listed for sale and that payment was due upon sale, the $5,050.00 payment was not due 

### us tin. Subsequently, Austin served Mannix with a number of interrogatories and requests for production to establish Mannix1s abilitytopay the $5,050.00 during the yearsafter thedissolution of themarriage. Although 

### ann nix admitted that the residence had never been offered for sale, he refused to answer 

### m us tin's other discovery requests and refused to comply with orders compelling discovery. OnMarch 16,1989, the~istrict Court ordered immediate payment of $5,050.00 dueAustin, and awardedAustin her attorney's fees and costs. On April 11, 1989,Mannix paid the $5,050.00and attorney's fees as ordered by the District Court. The ~istrict Court also ordered ahearing to determine,among other things, whether 

### ust tin was entitled to interest on the $5,050.00 and on what date such interest would commence if allowable. The District Court found, on August 8, 1989, that "Ralph E. Mannix Jr., shall pay to ~ois 

### ust tin interest on $5,050.00 at the rate of 10% per annum from January 20, 1982, the original date of judgment, to the date of this order 

# . . ..II 

### ann nix now appeals the District Court's August 8th order awarding interest to Austin. I Did the District Court err by awarding Austin interest on a debt created by the parties' property settlement agreement? An obligation arises either from the contract of the parties orby operation of law. Section 28-1-102,MCA. In this case,the obligation arose under contract, i.e., the partiest Property Settlement Agreement. The contract clause in the ~greementat issue in this case stated the following: 1. It is agreed that Ralph 

### E. Mannix, Jr., shall purchase the interestof LoisA. Mannix [Austin] in said property for the sum of 

### FIVE THOUSAND FIFTY and no/100 DOLLARS ($5,050.00). Said payment shall be made upon sale of the house. [Emphasisadded.] 2. Should any actionbe commenced to enforce, modify orinterpret any provision contained herein, the Court, as a cost of suit, shall award a reasonable attorney's fee to the successfulparty. This language requires Mannix to purchase Austin's interest in the Deer Lodge residence for $5,050.00. Payment, according to the Agreement was to be delayed until the sale of the house. Austin contends the Agreement clearly contemplated the residence would be offered for sale; however, the obligation and the amount of money dueAustin were fixed at the time of theAgreement. This obligationwas incorporated aspart of the Final Decreedissolving the parties' marriage. In contrast, Mannix contends Austin's right to receive the $5,050.00 occurred upon the sale of the house. We disagree with Mannix, and adopt the District Court finding that Austin's right to receive the $5,050.00 occurred on January 21, 1982, the date of theFinal Decree. TheDistrictCourt's Decree ofJanuary 21, 1982, vested in Austin the right to receive payment of the $5,050.00. Even though the payment was to be paid in the future, i.e., upon the sale of the house, the right to that money vested on the day the court entered the Final Decree. Clearly Mannix is obligated to pay interest on the $5,050.00 he owes Austin. Rule 54(a), M.R.Civ.P. states "A judgment is the final determination of the rights of the parties in an action or proceeding and as used in these rules includesa decree

# .. .It The 1982 Decree in this case was the final determination of the rights of the parties, and therefore a judgment. Rule 54(a), M.R.Civ.P. Under theDecree orJudgment,Mannixbecame obligated topayAustin$5,050.00 in 1982. As we have stated in In re the Marriage of Knudson (1981), 191 Mont. 204, 208, 622 P.2d 1025, 1027, once a person is liable for amoney judgment,andpayment isnotmade, the person entitled to the judgment is further entitled to a fair rate of interest. According to 

### 5 25-9-205, MCA, interest ispayable at

a rate of 10% per annum. Section 25-9-205, MCA, applies to judgments in marital dissolution cases, such as this one, where thedecree is silentabout interest. InretheMarriage of Martens (1981), 196 Mont. 71, 76, 637 P.2d 523, 526; Williams v. Budke (1980),186Mont. 71, 79, 606P.2d 515, 519. Accordingly, we adopt the District Court finding thatMannix owesAustin interest on the $5,050.00 obligation, at a rate of 10% per annum. However, the interest awarded should be paid for the period from January 20, 1982 throughApril 11, 1989, instead of August 8,1989,as ordered by the District Court. Despite this clear obligation to pay interest to Austin, Mannix argues thatAustin's right to receive the $5,050.00 did not vest on a I'particular dayn as specified under the statute for prejudgment interest. Section 27-1-211, MCA. Section 27-1-211, MCA, provides: Risht to interest. Every person who is entitled to recover damages certain or capable of being made certain by calculationand the right to recover which is vested in him upon a particular day is entitled to recovery interest and thereon from that day 

# . . . Mannix's reliance on 5 27-1-211,MCA, isunappropriate inthis case, since the issue here concerns "post judgmentn interest, rather than prejudgment interest under 5 27-1-211,MCA.Accordingly, we affirm the District Court's order, and award Austin attorney's fees and costs incurred in this appeal to be fixed by the District Court.

We Concur:

Justices

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