NO. 84-09 

IN THE SUPREME COURT OF THE STATE OF MONTAbJA 

1984 

IN RE THE MARRIAGE OF 

PIUS H. ROHRICH, 

Petitioner and Appellant, 

and 

MARIAN ROHRICH, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable H. William Coder, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John F. Iwen, Great Falls, Montana 

For Respondent: 

Howard F. Strause, Great Falls, Montana 

Submitted on Briefs: March 23, 1984 

Decided: 

Filed: dUi1 0 :&+ 

- Clerk 
Mr. ,Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

This case comes an appeal from two orders of the 

District Court, Eighth Judicial District, Cascade County, 

ordering the husband to pay the wife $1,000 initially and 

$1,250 per month thereafter for temporary maintenance until 

all issues were resolved in the dispute, and designating 

March 3, 1983 as the valuation date of the coroporate stock 

of the parties for the purpose of dividing the marital 

assets. The District Court also gave the wife the right to 

choose which stock she would receive as part of the parties' 

property division. We affirm. 

The parties were married on June 28, 1948. The 

husband filed a petition for dissolution on March 30, 1982. 

On May 28, 1982, the District Court ordered the husband to 

pay the wife $750 per month during the pendency of the 

dissolution proceedings and excluded the husband from the 

family hone. On August 16, 1982, the District Court found 

the husband in contempt for failing to abide by its order of 

28, 1982. The record indicates the husband had broken 

into the family home and threatened the wife with a 

revolver. The petition for dissolution came on for hearing 

on November 18, 1982, and on March 3, 1983, the District 

Court entered its findings of fact and conclusions of law. 

The findings and conclusions that are pertinent to this 

appeal included the following; that the wife was unable to 

support herself; the husband worked steadily for Washington 

Construction Company and earned $64,196.95 in 1981; taking 

into consideration the financial resources of the parties, 

the time necessary for the wife to be trained and educated 
for employment, the age of the parties and the husband's 

ability to pay, the wife should receive $750 per month for 

three years; due to the violent nature of the parties' 

relationship it would be best if there was no future contact 

between the parties; the parties owned numerous shares of 

corporate stock; in return for the wife giving up her right 

to maintenance payments the wife would receive the first 

$25,000 in value of stock and if the parties could not agree 

on the value of the stock it would be sold and divided 

accordingly; it was not necessary to award the wife 

maintenance because she was being granted a greater share of 

the marital assets; the parties would execute all 

instruments necessary to carry out the provisions of the 

decree; the wife was awarded a $27,837 loan that had been 

made to the parties' children. Neither party appealed from 

the decree of dissolution. 

On March 13, 1983, the wife made a motion that the 

District Court hold the husband in contempt for failing to 

comply with the decree of dissolution. The wife's motion 

was supported by an affidavit in which the wife alleged that 

the $27,837 that had been loaned to the children and which 

was awarded to her by the decree of dissolution had been 

transferred to the parties' son who lived outside Montana. 

The wife also alleged that she had not received her $750 

maintenance payment for the month of February, 1983, as 

required by the District Court's order of May 28, 1982. On 

June 10, 1983, the parties entered into a stipulation 

whereby the husband would receive the asset denominated 

"Loan to children . . ." in return for which the wife would 

be awarded an equal amount in value of corporate stock. 
Subsequently, the parties could not agree upon a date for 

valuation of the stock. The wife argued the stock should be 

valued as of March 3, 1983, the date of the decree of 

dissolution, whereas the husband argued a later date should 

be used. As a result, the wife moved the District Court on 

June 20, 1983, to hold a hearing to determine the date of 

valuation of the corporate stock for purposes of 

distribution. At about the same time the wife asked the 

District Court to require the husband to pay her immediately 

the sum of $1,000 until a hearing could be held on the 

matter. According to her accompanying affidavit the wife 

alleged she had not received any maintenance payments since 

January, 1983; the wife had been forced to live on welfare 

benefits; and the husband had encouraged the parties1 

children not to cooperate in the division of marital assets 

by not signing stock transfer orders. Based upon the wife's 

affidavit, the District Court on August 12, 1983, issued an 

ex parte order requiring the husband to immediately pay the 

wife $1,000 for temporary maintenance. 

Hearings were held on July 19 and September 16, 1983, 

for the purpose of determining the date of valuation of the 

corporate stock. From testimony presented at those 

hearings, the District Court issued an order on September 

29, 1983, in which it determined that the stock would be 

valued as of March 3, 1983, the date the District Court 

handed down the original decree of dissolution. In its 

order the District Court stated that to value the stock on 

any other date "would have the effect of undermining the 

equities which [the District Court] built into its order. " 

The District Court pointed out that the parties had entered 
into an agreement whereby the husband had agreed to receive 

as an asset the loan to the children in the amount of 

$28,489 (the original amount plus interest) in exchange for 

giving the wife $28,489 in value of stock. The District 

Court had been informed that the children's loan had been 

invested in an interest bearing account and therefore the 

husband could collect the interest on the $28,489 from March 

3, 1983. The District Court noted that to allow the husband 

to also receive the benefits from any increase in the value 

of stock since March 3, 1983 would in effect give him a 

double benefit. The District Court said it took into 

consideration the fact that the husband was gainfully 

employed and had a much greater ability to build up an 

estate before he retired than did the wife. Thus, the 

District Court ordered the stock immediately divided with 

the wife entitled to choose $25,000 and another $28,489 in 

stock as that stock was valued on March 3, 1983. It is from 

that order and the August 12, 1983 order granting the wife 

temporary maintenance that the husband appeals. 

The husband raises two issues on appeal: 

(1) Did the District Court have jurisdiction on August 

12, 1983 to award ex parte temporary maintenance to the 

wife? 

(2) Did the District Court have jurisdiction on 

September 29, 1983 to designate March 3, 1983, as the 

valuation date of the corporate stock and grant the wife the 

right to choose the corporate stock she would receive? 

Initially, the husband asserts the District Court was 

without jurisdiction to award the wife temporary maintenance 

on August 12, 1983 because a court cannot amend a judgment 
under Rule 52(b), M.R.Civ.P. without holding an evidentiary 

hearing . 

On Nay 28, 1982, the District Court ordered the 

husband to pay $750 per month during the pendency of the 

proceedings. The husband failed to comply with that order 

and was held in contempt on August 16, 1982. After the 

decree of dissolution was entered on March 3, 1983, the 

wife, by affidavit, indicated the husband had again failed 

to make a temporary maintenance payment and, in addition, 

had acted to deprive her of the $27,837 awarded her in the 

decree of dissolution. Thus, the District Court was faced 

with a situation in which the intent of its orders, i.e., 

that the wife be maintained pending final disposition of the 

matter, was not being carried out. Accordingly, it was 

within the District Court's discretion to qrant the wife 

?-?.cGt tsc 

temporary maintenance. In State ex. rel. -Ka-%+ v. District 

Court (1978), 177 Mont. 547, 582 P.2d 772, this Court said: 

"The Uniform Marriage and Divorce Act now 

in effect in Montana gives the District 

Court authority to provide temporary 

orders for support and maintenance to a 

spouse. Section 48-318, R.C.M. 1947 [now 

Section 40-4-106, MCA]. Nothing in that 

Statute restricts the power of the 

District Court to orders made before 

judgment. In fact, it is specifically 

provided that the granting of such an 

order does not prejudice the rights of 

the parties at 'subsequent hearings in 

the proceeding,' which would include an 

appeal. " 

Thus, the facts of this case indicate the District Court had 

jurisdiction to grant the wife temporary maintenance on 

August 12, 1983. 

Next, the husband argues the District Court was 

without jurisdiction on September 29, 1983 to designate 

March 3, 1983 as the valuation date of the stock and giving 
the wife the right to choose her stock. The husband asserts 

the March 3, 1983 decree of dissolution was a final judgment 

and could not be amended or modified except by motion made 

within the time limitations set forth in the Montana Rules 

of Civil Procedure. 

First, we note that the husband participated in the 

July 19, 1983 and September 16, 1983 hearings in which the 

District Court determined the date of valuation for the 

corporate stock. Second, it has been held that the 

interpretation or clarification of a judgment ambiguous or 

uncertain upon its face involves neither an amendment of its 

terms nor a challenge to its validity. Stieler v. Stieler 

127 

(Minn. 1955), 70 N.W.2d m,. In the present case, the 

District Court's order of September 29, 1983 clarified the 

March 3, 1983 decree of dissolution. The March 3, 1983 

decree of dissolution failed to designate the date upon 

which the corporate stock would be valued and both parties 

moved the court to determine the appropriate date of the 

valuation. The District Court properly relied upon Lippert 

v. Lippert (Mont. 1981), 627 P.2d 1206, 38 St.Rep. 625 and 

Krause v. Krause (Mont. 1982), 654 P.2d 963, 39 St.Rep. 

1809, in holding that the assets should be valued at the 

time of the dissolution hearing. Moreover, the District 

Court did not modify or amend the decree of dissolution by 

authorizing the wife, in the September 29, 1983 order, to 

choose her stock. Again, this was a clarification of the 

original decree of dissolution in which it was stated that 

the wife had no vocational skills and was not qualified for 

even the most minimal jobs. As this Court stated in Thomas 

v. Thomas (Mont. 1980), 617 P.2d 133, 37 St.Rep. 1710, " . 
. since neither party made a timely appeal of the original 

findings and decree, the parties are bound by it, unless an 

appropriate proceeding is maintained subsequent hereto for 

clarification of the findings and decree." Thomas, supra at 

1714. 

A£ f irmed. 

We concur: 

Chief ~ustice-