NO. 89-356 

IN THE STJPREME COURT OF THE STATE OF MONTANA 

1989 

IN RE THE MARRIAGE OF 

SHEILA G. LYMAN, 

Petitioner and Respondent, 

and 

CH.ARLES E. LYMAN, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Michael Keedy, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

M. Dean Jellison, Kalispell, Montana 

For Respondent: 

Gary R. Christiansen; Warden, Christiansen, Johnson & 

Berg, Kalispell, Montana 

Submitted on Briefs: Oct. 25, 1989 

Decided: December 20, 1989 
Justice Diane G. Barz delivered the Opinion of the Court. 

Charles Lyman appeals from a judgment by the District 

Court of the Eleventh Judicial District, Flathead County, 

awarding Sheila Lyman attorney's fees and costs. We 

reverse. 

Sheila filed for dissolution on August 10, 1983, in 

Cause No. DR-83-346. After a non-jury trial on December 18, 

1984, the District Court entered a decree of dissolution on 

January 3, 1985. The terms of the parties' separation and 

property settlement agreement, incorporated into the decree 

by reference, required Charles to make certain monthly and 

periodic payments to Sheila. In its July 23, 1985 order 

finding Charles in contempt for his failure to make these 

mandatory payments, the District Court ruled that Sheila was 

"entitled to recover her reasonable attorney's fees and 

costs, to be determined at a subsequent hearinq for that 

purpose. " 

One of the marital assets was the Bushwacker Restaurant 

in Port Angeles, Washington. The parties owned a one hundred 

percent interest in the restaurant business and a seventy 

percent interest in the real estate on which the restaurant 

is located. Marian Burlce, Charles' mother, owned the 

remaining thirty percent interest in the real estate. This 

asset became part of Mrs. Burke's estate upon her death. 

Charles was co-executor of his mother's estate along with his 

brother. 

Sheila received the parties' interest in the Rushwacker 

Restaurant and the underlying real estate pursuant to the 

separation and property settlement agreement. During the 

process of negotiating her purchase of Mrs. Burke's thirty 

percent interest in the real estate, Sheila executed the 

following handwritten release of any claim for attorney's 
fees from Charles resulting from the District Court's order 

of July 23, 1985: 

August 13, 1986 

To Whom it may concern, 

I, Sheila Lyman, release Charles 

Lyman from all obligations to pay any 

outstanding attorney's fees that I have 

with Don ZaBar or his firm for 

representation of me in the Lyman 

dissolution of marriage. 

Is/ Sheila Lyman 

In a separate action, Cause No. DR-87-189(B), Sheila 

petitioned for modification of the decree of dissolution 

based both on a change in circumstances and Charles' failure 

to fully disclose the assets of the marital estate. Sheila 

sought recovery of attorney's fees incurred in pursuing the 

modification and those awarded to her in Cause No. DR-83-346, 

the prior and separate contempt action. The District Court 

heard testimony and argument regarding the propriety of 

entering a judgment for attorney's fees awarded in the 

contempt action. However, its findings of fact and 

conclusions of law contained no ruling on that issue. 

Sheila then moved the District Court for an order in 

Cause No. DR-83-346, 

determining the attorney's fees and costs 

contemplated and Ordered by the Court to 

be paid as part of the Findings of Fact, 

Conclusions of Law and Order issued by 

the Court on July 23, 1985, . . . [and] 

[flor interest on said sums at the rate 

of 10% per annum from and after July 23, 

1985. 

The court found Sheila's claim was not barred by res judicata 

and that "[tlhere being no consideration the purported 

'release' is not enforceable." Charles appeals from the 

judgment of the District Court. 
RES JUDICATA 

Charles argues that the District Court, by not ruling on 

an issue before it, implicitly denied recovery to the moving 

party on that basis. Thus, Sheila's claim was barred by - res 

judicata. Sheila, on the other hand, contends that the 

District Court refused to rule on this issue. While the 

record does not clearly reflect the District Court's 

rationale, it is clear that the District Court did not enter 

a judgment regarding the prior awarded attorney's fees in 

Cause No. DR-87-189 (B) . "Only final judgments and orders intended to be final in 

nature are res judicata. " Lien v. Murphy Corp. (1982) , 201 

Mont. 488, 493, 656 P.2d 804, 806; Peterson v. Montana Rank 

of Bozeman, N.A. (1984), 212 Mont. 37, 45, 687 P.2d 673, 677. 

Furthermore, when the District Court in the modification 

proceeding did not enter a judgment regarding the attorney's 

fees awarded in Cause No. DR-83-346, such judgment did not 

render the issue res judicata. Washington Pub. Power Supply 

Sys. v. Pittsburgh-Des Moines Corp. (9th Cir. 1989), 876 F.2d 

690, 699; Matter of Estate of Kopely (Ariz. 1988), 767 P.261 

1181, 1183; Vertecs Corp. v. Reichhold Chems., Inc. (Alaska 

1983), 671 P.2d 1273, 1276. The District Court properly 

ruled that res judicata did not bar Sheila's claim. 

CONSIDERATION 

Sheila argues that "Wife and the Estate had reached 

agreement on [Wife's] . . . purchase of the Estate's interest 

[in the real estate] well over a year before the closing of 

the transaction . . . [and that] [tlhere were no 

qualifications." Sheila contends she offered the estate 

$40,000 cash or $50,000 terms for its thirty percent interest 

in the real property. Acceptance of her offer, Sheila 

asserts, is contained within the following portion of a 

letter from the co-executors' attorneys dated April 25, 1385: 
Please be advised that the executors will 

accept the sum of $40,000 in cash for the 

30% interest of Marian OS Burke in this 

real estate provided that the purchaser 

causes Mrs. Burke's estate to be released 

from any liability under the aforesaid 

mortgage and further provided that the 

purchaser take subject to the lease of 

the Rushwacker Restaurant. 

This letter clearly contains additional terms in the 

requirement that the purchaser release the estate from any 

liability pursuant to the underlying mortgage. There is no 

indication that Sheila accepted these additional terms or 

that the parties entered into a written contract at this 

time. For that reason, the letter cannot be considered an 

acceptance but must be construed as a rejection of Sheila's 

offer and a counter offer. Carriger v. Ballenger (Mont. 

1981), 628 P.2d 1106, 1109, 38 St.Rep. 864, 867. 

Thus, the following letter of June 17, 1986, from 

Charleshttorney to Sheila was a new offer: 

[Charles] has informed me that once he 

has received confirmation from Ann 

Blickensderfer that she has received a 

cashier's check in the amount of $40,000, 

plus a cashier's check in the amount of 

$4,400.00 representing 11% interest to 

June 1, 1986, plus a per diem of $12.06 

from June 1, 1986 plus your share of the 

closing costs which is in the amount of 

$13.00. You will also be responsible for 

the second half property taxes in the sum 

of $2,040.50 which amount will not have 

to be paid at closing. [Charles] will 

also require a written statement by you 

that you will release him from all 

obligation to pay any outstanding 

attorney's fees you have with Don LaBar 

or his firm for representation of you in 

the Lyman dissolution and any of its 

aftermath. 

Sheila testified that she believed the sale of the 

estate's interest in the real property would not have gone 
through had she not executed the release. Sheila appears to 

have fulfilled the other requirements set forth in the June 

17 letter. These terms were not mentioned in the April 25, 

1985, letter. If, as Sheila contends, a contract was formed 

on April 25, the terms contained in the June 17 letter would 

be modifications of the original contract and would also 

require additional consideration. Naylor v. Hall (1982), 201 

Mont. 59, 66, 651 P.2d 1010, 1014; 28-2-504, MCA. However, 

no contract was formed on April 25, therefore the June 17 

letter constituted a separate offer for which there was 

adequate consideration. We therefore conclude Sheila 

released Charles from his obligation to pay her attorney's 

fees. The District Court erred in ruling otherwise. 

We reverse. 

r 

We concur: ,*/