### NO. 84-09 

### INTHE SUPREMECOURTOF THE STATEOF MONTAbJA 1984

IN RE 

### THEMARRIAGE OF PIUSH. ROHRICH, PetitionerandAppellant, 

### and MARIAN ROHRICH, Respondent and Respondent.

APPEAL FROM: District Court 

### of theEighth Judicial District, 

### In and for the County 

### of Cascade, TheHonorableH. William Coder, Judgepresiding.

COUNSELOF RECORD: ForAppellant: John

### F. Iwen, Great Falls, Montana

For Respondent: Howard F. Strause, Great Falls,Montana

Submitted onBriefs: 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 topay 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 dateof the coroporate stock of the parties for the purpose of dividing the marital assets. The 

### District Court alsogave the wife the right to choose which stock shewould receive aspartof theparties' 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 thehusband incontempt for failingtoabideby 

### itsorder 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 forhearing

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 supportherself; 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 tobe trained and educatedfor 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 

### itwould be best if therewas no futurecontact 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 invalue of stock and if theparties 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 shewas being granted a greater shareof 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 totheparties' 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 inwhich thewife 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 theDistrict 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 tochildren

# .

# .."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, tohold 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 DistrictCourt torequire thehusband topay 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 tocooperate in the division of marital assets by not signing stock transfer orders. Based upon thewife's affidavit, the District Court on August 12, 1983, issued an


### ex parte order requiring thehusband toimmediately pay the wife $1,000 for temporary maintenance. Hearings 

### were held on July 19 and September 16, 1983, for the purpose of determining the dateof 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 thepartieshad entered

### intoan agreement whereby thehusband had agreed toreceive



### as an asset the loan to the children in the amount of $28,489 (theoriginal amount plus interest) inexchange 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 collectthe intereston the$28,489 fromMarch 3, 1983. The DistrictCourt noted thattoallowthehusband toalsoreceive 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 asthatstockwas valued onMarch 3, 1983. It

### is from that order and the August 12, 1983 order granting the wife temporary maintenance thatthehusband appeals. The husband raisestwo issueson appeal: (1)

### Did the

### District Courthavejurisdiction 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 dateof thecorporate stock and grantthewife the righttochoose thecorporate stock shewould receive? Initially, thehusband assertstheDistrict Court 

### was withoutjurisdiction toaward thewife temporarymaintenance

on August 12, 1983because 

### a court cannot amend a judgmentunder 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 todeprive 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., thatthewifebe maintained pending finaldisposition 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 Stateex. 

### rel.-Ka-%+ 

### v. District Court (1978), 177Mont. 547, 582 P.2d 772, thisCourt said: "The UniformMarriage and Divorce Actnow in effect in Montana gives the District Court authority to provide temporary orders for support and maintenance to a spouse. Section48-318, 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 factsof thiscaseindicate theDistrictCourthad 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 givingthewife theright tochooseher stock. The husband asserts theMarch 3, 1983decreeof dissolution

### was a finaljudgment and could not be amended or modified except by motion made within the 

### time limitations set forth inthe Montana Rules of CivilProcedure. First, we note that the husband participated in the July 19, 1983 and September 16, 1983hearings inwhich 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 involvesneither 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 inwhich 

### it was stated that thewife had no vocational skillsand was not qualified for

even themost minimal jobs. As thisCourt stated inThomas



### 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£

### firmed.

We concur:

Chief ~ustice-