No. 14964 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

LORETTA M. WINTERS, 

Plaintiff and Respondent, 

-vsROBERT G. WINTERS, 

Defendant and Appellant. 

Appeal from: District Court 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 : APR g 19841 

>< ,t. ,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 

for modification of a divorce decree. 

Loretta M. Winters and Robert G. Winters were married 

on June 2, 1956 in Columbus, Montana. Four children were 

born the issue of the marriage, 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 

Loretta Winters on December 10, 1974. A decree of divorce 

was granted January 14, 1975. 

A property settlement was 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: 

"The Defendant [is ordered to] pay Plaintiff the 

sum of $500.00 per month as and for the support 

and maintenance of the said minor 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 on behalf of said minor.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. 

Robert Winters filed a petition and affidavit for modification 

of the decree on April 17, 1978 requesting a reduction of 

payments to an amount of $125 per child per month during 

minority, i.e. $250 per month total. The change was precipitated 

by the following summarized factors according to the petition: 

(1) Mrs. Winters' financial situation has 

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 service manager 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 from his second 

wife is now without her additional income which has 

enabled him in the past to make the monthly payments, 

is left with a net income of $1,160 per month and 

unable to continue the payments at the previous rate. 

The first hearing on the petition was held April 23, 

1979. No testimony was 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", or whether it was the 

intent of the parties via the agreement to guarantee an 

income of $500 per month for ten years as part of the property 

settlement which was incorporated into the divorce decree. 

During argument, the question of duress was introduced into 

the case. 

A final hearing was held on August 14, 1979. At that 

time respondent moved that the petition be dismissed and 

that the sole issue the court consider be 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 existence of an agreement "settling the parties 

(sic) property rights and [which] provided for support of 

the minor children." It went on to find that Mr. Winters 

agreed to the demand of payment of $500 per 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 fraud was found nor were any circumstances found 

to make the divorce unconscionable. 

It is from this order which 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, to make the findings and conclusions it did? 

(4) Did the District Court make findings and conclusions 

sufficient to warrant the order it made? 

(5) Are the findings of fact supported by the evidence? 

The basic conflict which arises in this case is as follows: 

the husband contends the decree provision constitutes a child 

support issue which may be modified whereas the wife contends 

and the District Court agreed, the provision constitutes a 

contractual issue and therefore may not be modified without 

the mutual consent of both parties. We affirm the decision of 

the District Court. 

It is clear to this Court that the contested payment 

provision creates a contractual obligation on the part of the 

husband to pay to the wife the amount of $500 per month for a 

period of ten years as a minimum sum to be used for the support 

and maintenance of the children and home. This contractual 

obligation is based on a quid pro -- quo which is the consideration 

for the contract. The court stated in its findings: 

"The husband had found another woman and wanted 

a divorce so that he could marry 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 the purpose of support and 

maintenance of a home for a period of ten (10) 

years, that she would contest the divorce and 

'drag the husband's lover through the mud.' The 

husband chose to agree to meet the demands of the 

wife. Under those provisions the Property Settlement 

Agreement was signed by the parties, incorporated 

into the Decree, and the husband shortly thereafter 

married his girlfriend." 

The payment provision of the contract is integral to the 

agreement of the parties, as a matter of law. The provision 
may not be chopped-up and modified as the husband advocates 

without destroying the contract itself. See Washington v. 

Washington (1973), 162 Mont. 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), 

152 Mont. 453, 451 P.2d 836. The question before the court 

here did not involve the welfare of the children, in which 

event the court could modify 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), 153 Neb. 160, 

43 N.W.2d 657. That is the situation here. 

The decision of the District Court is affirmed. 

We Concur: 

Chief Justice 

.: ;i Justice u