No. 53-189 

IN THE SUPREME COURT OF THE STATE OF MON'TANA 

1983 

IN RE THE MARRIAGE OF 

KAREN L. MILLER, 

Petitioner and Respondent, 

and 

CHARLES F. MILLER, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Eonorable Douglas Harkin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Tipp, Hoven, Skjelset & Frizzell, Missoula, 

Montana 

For Respondent : 

Anthony F. Keast, Missoula, Montana 

Rammerer Law Offices, Missoula, Montana 

Submitted on Briefs: August 25, 1983 

Decided: November 17, 1983 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

The marriage of the parties was dissolved by order of 

the court on June 19, 1981. That order awarded two parcels 

of real property to Karen L. Miller (Wife) and ordered her to 

pay to Charles F. Miller (Husband) $16,000 for his interest 

in the 5 acre parcel and $10,000 for his interest in the 

59.16 acre pa.rce1. In order to enforce the decree, the 

husband moved the court for a writ of execution on all real 

property owned by the wife. On February 8, 1983, the 

District Court ordered issuance of a writ of special 

execution "against the five-acre parcel for the judgment of 

$16,000, plus interest, and against the 59 and 16/100-acre 

parcel for the judgment of S10,000, plus interest." We 

affirm the order of the District Court. 

The June 19, 1981 order dissolved the parties' 12 year 

marriage, provided for child custody, visitation and support 

of the parties' minor child, and divided the marital assets 

and debts. Regarding the award of real property to the wife, 

the order specifically provided: 

"7. The Petitioner [wife] is granted all right, 

title and interest, but subject to the existing 

mortqage, in the five-acre parcel . . . Respondent 

shall have no interest in such parcel except as set 

out below. 

"8. Petitioner shall pay the Respondent [husband] 

the sum of Sixteen Thousand Dollars ($16,000.00) 

with interest at the rate of ten percent (10%) per 

annum on the unpaid balance commencing July 1, 

1981, for his interest in the five-acre parcel . . . Until such time as the Sixteen Thousand 

Dollars ($16,000.00) plus interest is paid in full, 

the Respondent shall have a lien on the subject 

property as security for such sum. 

"9. Petitioner shall pay the Respondent the sum of 

Ten Thousand Dollars ($10,000.00) with interest at 

the rate of ten percent (10%) per annum commencing 

July 1, 1981, for his interest in the fifty-nine 

and sixteen hundreds acre parcel. It is hereby 

ordered that the Respondent shall have a lien on 

such parcel until such time as the Ten Thousand 

Dollars ($10,000.00) plus interest to date is paid 

in full. Such lien shall. constitute Respondent ' s 
only interest in the fifty-nine and sixteen 

hund.redths acre parcel. 

"11. Petitioner [wife] shall receive no 

maintenance. The Court specifically intends that 

the property awarded to the Petitioner herein shall 

be in lieu of maintenance." 

The 5 acre and 59.16 acre parcels are adjoining 

properties. Both were gifts from the wife's parents. The 

District Court determined that the 5 acre parcel was granted 

to the wife with the intention that it would be used by both 

parties. A mobile home, which was the Miller family 

residence, is situated on the 5 acre tract and is presently 

the home of the wife and the minor child. The wife's parents 

reside in a home located on the adjoining 59.16 acre pa-rcel, 

which the parents had deeded to their daughter and grandson. 

The District Court entered the following conclusions of law 

regarding the 59.16 acres, title to which was held by the 

wife and minor child as joint-tenants: 

"7. Although Petitioner's parents do not own a 

titled life estate in the fiftg-nine and sixteen 

hundredths (59.16) acre parcel, it is clear that a 

strong argument can be made for the proposition 

that the parcel is held by the Petitioner and her 

son subject to an equitable trust for a life estate 

for the benefit of Petitioner's parents. By any 

account, it would be manifestly unfa.ir to eject the 

grandparents from their home situa.ted on the 

f ity-nine and sixteen hundredths (59.16) acre 

parcel. 

"8. Respondent has worked hard to improve the 

fifty-nine and sixteen hundredths acre parcel under 

the mistaken impression that he was an owner 

thereof. He is entitled to be compensated for his 

efforts in the sum of Ten Thousand Dollars 

($10,000.00)." 

The court's order awarding real property to the wife, 

awarding dollar amounts to the husband and restricting the 

husband's liens on the wife's real property are based on 

specific findings of fact and conclusions of law. This order 

was never appealed and is not challenged here. 
On March 12, 1982, approximately 9 months after entry of 

the dissolution order, the husband moved the District Court 

for leave to execute on the wife's real and personal property 

in order to satisfy the $26,000 money judgment in his favor. 

The matter was heard and briefed. 

The husba.nd alleged in his brief in suppport of the 

motion that ha had tried to work out a settlement with the 

wife, hut he had been "continually asked to substantially 

discount his portion of the estate, or accept small payments 

over many years." The wife filed an affidavit statinq that 

her parents had acquired $10,000, together with 10% interest 

from July 1, 1981. She stated that these funds were 

available to the husband provided he would execute a 

satisfaction of judgment on the 59.16 acres so that this 

parcel could be sold. The wife moved the court for judicial 

relief in the form of an order allowing the payment of 

$10,000 plus accrued interest in return for "a Satisfaction 

of Lien relating to the 59-acre tract." She stated that such 

an order would in no way affect the remaining $16,000 lien on 

the 5 acre parcel. 

The District Court found that a special execution, 

restricting levy and sale of particular parcels of land for 

specified amounts, would further the intention of the court 

and the language contained in its 1981 order. The following 

Order of Special Execution was entered: 

"A writ of execution may issue against the 

five-acre parcel for the judgment of $l6,OOO, plus 

interest, and against the 59 and 16/100-acre parcel 

for the judgment of $10,000, plus interest." 

The question on appeal is whether the trial court abused 

its discretion by so restricting the execution liens and 

limiting the husband's right to enforce the money judgment in 

his favor. 
Section 40-4-202(1) (c), MCA provides that the court 

shall consider whether "the property division serves as an 

alternative to maintenance arrangements." The trial court 

specifically stated its intention that the award. of property 

to the wife was in lieu of maintenance. (Provision 11 of 

the June 19, 1981 Order.) The court also stated the 

following special considerations: 

"This [5 acre] parcel will operate to provide a 

home for the Petitioner a.nd her son. 

"This [59.16 acre] parcel will provide a source of 

potential income to the Petitioner if she chooses 

to sell it consistent with her son's legal interest 

and the life estate, if any, of her parents." 

Disposition of Property Consideration, June 19, 

1981 order, Exhibit "D" at 3. 

The District Court molded its decree to do equity to 

both parties. It ordered a special execution to comply with 

provisions of the original decree. Appellant-husband failed 

to appeal the original order, which clearly restricted his 

lien on each of the two properties to a certain dollar 

amount. He will not now be permitted collatera-lly to attack 

those restrictions by arguing that, under enforcement 

sections of the state code, docketing of the money judgment 

in his favor automatically lifted these court ordered 

restrictions. 

As to money judgments, the code specifically provides: 

"Whenever an order for the payment of a sum of 

money is made by a court or judge pursuant to the 

provisions of this code, it may be enforced b17 

execution in the same manner as if it were a 

judgment." Section 25-13-204, MCA. 

"When the judgment is for money . . . the same may 

be enforced by a. writ of execution . . .." Section 

25-13-201, MCA. 

Here the District Court ordered the wife to pay the husband 

two sums certain and ordered liens to attach to two parcels 

of property until payment of those sums had been made. 
Neither party has objected to or appealed from that 

order. Clearly the District Court has the power to enforce 

the liens by writ of execution, as stated in section 3-1-113, 

MCA : 

"When jurisdiction is, by the constitution or any 

statute, conferred on a court or judicial officer, 

all the means necessary for the exercise of such 

jurisdiction are also given." 

We hold that the District Court did not abuse its 

discretion in fashioning a writ of execution in compliance 

with and to enforce its original order. We affirm the 

District Court's Order of 

We concur: 

Special Execution. 

b& $, P/, Chief Justice,