No. 14964 INTHE SUPREME COURT OF THE STATE OF MONTANA 1980

LORETTA M. WINTERS, Plaintiff and Respondent,-vsROBERT G. WINTERS, Defendant and Appellant.

Appeal from: DistrictCourt of the Eighth Judicial District, In Choteau County, Honorable John McCarvel, Judge presiding. Counsel of Record: For Appellant: Barry T. Olson, Great Falls, Montana For Respondent: Donald Ostrem, Great Falls, Montana Graybill, Ostrem, Warner & Crotty

Submitted on Briefs: March 3, 1980 Decided:

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### ,Qrc.r' :; ill I' . - - Filed:Mr. Justice John C. Sheehy delivered the Opinion of the Court.

This is an appeal from an order entered in Choteau County District Court denying Robert G. Winters' petition formodification of a divorce decree. Loretta M. Winters and Robert G. Winters were married on June 2, 1956 in Columbus,Montana. Four childrenwere born the issue of themarriage, two of which reached the age of majority prior to the order now in question. Because of irreconcilable differences, a divorce complaint was filed by LorettaWinters on December 10, 1974. A decree of divorce

was granted January 14, 1975. A property settlementwas incorporated into the decree of divorce. Custody of the couple's four children was awarded to Loretta. The decree provided for the support and the maintenance of these children anwhome as follows: "TheDefendant [is ordered to] pay Plaintiff the sum of $500.00 per month as and for the support and maintenance of the saidminor children and the support and maintenance of a home, and further defendant to pay for all reasonable medical, dental, optical, doctor and hospital expenses required for and onbehalf of saidminor.children,and in accordance with the provisions of Exhibit A hereto attached for the period of 10 years from and after the date hereof." Robert Winters has fulfilled this provision without fail since the time of issuance of the decree. RobertWinters filed a petition and affidavit formodification of the decree onApril 17, 1978 requesting a reduction of payments to an amount of $125per child per month during minority, i.e. $250 per month total. The changewas precipitated by the following summarized factors according to the petition: (1) Mrs. Winters' financial situationhas changed in that although unemployed and without income at the time of the divorce, she is now earning a net income of $800 per month as an automobile servicemanager and additionally has recently inherited property.(2) Only two of the four children are still minors and the remaining two are not at home nor attending college;

(3) Mr. Winters, recently divorced fromhis second wife is now without her additional income which has enabled him in the past to make themonthly payments, is leftwith a net income of $1,160per month and unable to continue the payments at the previous rate. The first hearing on the petition was held April 23, 1979. No testimonywas presented. However briefs were to be filed concerning authority of the District Court to modify the agreement. Argument on this point centered on the question of whether the decree could be modified because of the words therein denominated "child support",orwhether itwas the intent of the parties via the agreement to guarantee an income of $500per month for ten years as part of the property settlement which was incorporated into the divorce decree. During argument, the question of duresswas introduced into the case. A final hearing was held onAugust 14, 1979. At that time respondentmoved that thepetition be dismissed and that the sole issue the court considerbe duress or fraud upon the court, and that all testimony be so restricted. The court in effect so restricted the testimony. The court entered its findings and conclusions on August 22, 1979 denying the petition to modify. The court found the existenceof an agreement "settling the parties (sic)property rights and [which]provided for support of the minor children." Itwent on to find that Mr. Winters agreed to the demand of payment of $500per month for ten years in return for Mrs. Winters not contesting the divorce which would "drag the husband's lover through the mud." No duress or fraudwas found nor were any circumstances found to make the divorce unconscionable. It is from this orderwhich Robert Winters appeals. Appellant frames the issues for our review as follows:



## -3-(1) Did the District Court err in determining the agreement could not be modified? (2) Did the District Court err in curtailing the evidence presented? (3) Did the District Court have authority,upon the record before it, tomake the findings and conclusions it did? (4) Did the District Court make findings and conclusions sufficient to warrant the order itmade? (5) Are the findings of fact supportedby the evidence? The basic conflictwhich arises in this case is as follows: the husband contends the decree provision constitutes a child support issuewhichmay be modified whereas thewife contends and the District Court agreed, the provision constitutes a contractual issue and thereforemay not be modified without the mutual consentof both parties. We affirm the decision of the DistrictCourt. It is clear to this Court that the contested payment provision creates a contractual obligation on the part of the husband topay to thewife the amount of $500per month for a period of tenyears as a minimum sum to be used for the support and maintenance of the children and home. This contractual obligation isbased on a quid pro 

### -- quowhich is the consideration for the contract. The court stated in its findings: "Thehusband had found another woman and wanted a divorce so that he couldmarry her. The wife advised her husband that unless he agreed to pay the sum of Five Hundred Dollars ($500.00) per month as child support for the support of the children and for thepurpose of support and maintenance of a home for a period of ten (10) years, that shewould contest the divorce and

'drag the husband's lover through themud.' The husband chose to agree tomeet the demands of the wife. Under thoseprovisions the Property Settlement Agreement was signed by the parties, incorporated into the Decree, and thehusband shortly thereafter married his girlfriend." Thepayment provision of the contract is integral to the agreementof the parties, as a matter of law. The provisionmay not be chopped-up and modified as the husband advocates without destroying the contract itself. See Washington v. Washington (1973),162Mont. 349, 512 P.2d 1300. What we hold here has no bearing on the power of the court to modify agreements of the parties regarding child support in later applications. Butler v. Brownlee (1969), 152Mont. 453, 451 P.2d 836. The question before the court here did not involve the welfare of the children, inwhich event the court couldmodify any agreement of the parties to achieve their protection. Gessell 

### v. Jones (1967),149 Mont. 418, 427 P.2d 295. Instead, the District Court was presented with a provision of contract law. The courts will not relieve

a party of his contractual agreement, in light of after events. Link 

### v. State 

### By & Through Dept. Of Fish & Game (1979), Mont

# . , 591 P.2d 214, 36 St-Rep.355;Meyer v. ~iesel Equipment Co., Inc. (1977),1 Kan.App.2d 574, 570 P.2d 1374; Wilson & Co. 

### v. Fremont Cake & Meal Co. (1950),153Neb. 160, 43N.W.2d 657. That is the situationhere. The decision of the District Court is affirmed.

We Concur:

Chief Justice .: ;i Justice 

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