### No. 14674 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979

PATRICIAH. BERTAGNOLLI, Plaintiff and Appellant,

VS. 

### EDWARD E. BERTAGNOLLI, Defendant and Respondent.

Appeal from: District Court of the Eighteenth Judicial District, Honorable W. W. Lessley, Judge presiding. Counsel of Record: ForAppellant: Drysdale,McLean and Screnar, Bozeman, Montana For Respondent: Berg, Morgan, Coil & 

### Stokes, Bozeman,Montana

Submitted on briefs: September 12, 1979 Decided: 

## OEC19

## 1979

Filed: 2 

# ?im

### Mr. Justice John Conway Harrison delivered the Opinion of the Court. Appellant, formerly PatriciaH. Bertagnolli,began this action in 1974by filing a complaint for divorce in the Eighteenth Judicial District before the HonorableW. W. 

### Lessley. The complaint requested the court to dissolve her marriage to the respondent,Dr. Edward E. 

### Bertagnolli, to equitably divide the property of the parties, and to award her support and maintenance payments and attorney fees. At the time the complaintwas filed,Dr. and Mrs. Bertagnolli had been married for 27 

### years. During the marriage, Dr. Bertagnollipracticed medicine in Three Forks, Montana, and Mrs. Bertagnolli cared for the couple's home and raised the seven childrenborn to themarriage. The couple accumulated real estate and personal property valued at $220,000 at the time of their divorce. 

### In the years immediatelyprior to the divorce,Dr. Bertagnolli had a yearly net income of approximately $35,000. The record shows that at the time of the divorce proceedings,Mrs. Bertagnolli had decided tomove from Three Forks to Bozeman. The complaint filed by Mrs. ~ertganolli states that she felt itwould be in the best interests of the couple's children to remain together in their home in Three Forkswhere they attended school. To facilitate this, Mrs. Bertagnolli's complaint alleges custody of the children should be 

### granted to Dr. Bertagnolli. At the hearing on the divorce, the parties introduced exhibits setting out their living expenses based on the assumption that the trial courtwould award custody to Dr. Bertagnolli. The exhibits showMrs. Bertagnolli needed approximately $550per month to provide for herself. Dr.Bertagnolli, on the other hand, required almost five 

### times thatamount tomaintain a household for the couple's children, Dr. Bertagnolli's Exhibit A lists over $2400 per month inexpenses necessary to support the Bertagnolli children stilldependent on their parents. The list includes expenses for food, clothing, housing and college for

a large family. Subsequent 

### tohearing the complaint, the DistrictCourt found allof the property accumulated by the parties during theirmarriage 

### was inthe possession of Dr. Bertagnolli except a 1970Renault automobile which was inthe possession of Mrs. Bertagnolli. The court also found it would be in the best interestof the children of themarriage tobe placed inthe custody of Dr. Bertagnolli. Based on these findings, the courtawarded custody of the children toDr. Bertagnolli, ordered him topay Mrs. Bertagnolli's tuition and book expenses if she attended college, ordered the doctor topay Mrs. Bertagnolli's attorney fees and ordered him topay her $650 per month forher support and maintenance. Pursuant toa timelymotion by Dr. Bertagnolli, the courtamended thejudgment reducing themonthly payment to $600. Faced with the necessity of keeping the property of themarriage together for the support of the couple's large family, the court awarded Dr. ~ertagnolli all the property inhispossession. Although the judgment granted almost none of the couple's property toMrs. Bertagnolli, she did not appeal the DistrictCourt's decision. Mrs. Bertagnolli remarried in 1978. After the remarriage, Dr. Bertagnolli refused tomake any furthermonthly payments. The appellant, now Mrs. Nelson, petitioned the District Court tohold the doctor incontempt for failingtomake hismonthly payments. After a hearing on the matter, Judge Lessley terminated Dr. Bertagnolli's obligation to make further payments, citing sections 21-139 and/or 48- 330(2), R.C.M. 1947, now section 40-4-208 (2), MCA. Those sections require the court toterminatemaintenance payments upon the remarriage of the party receiving maintenance absent certain conditions notpresent inthis case. Mrs. Nelson appeals thisdecisionof the lower court. The controversy inthiscase centers around the language inthe amended decree of divorce and judgment entered in 1975 granting the former Mrs. Bertagnolli support and maintenance payments inlieuof a property division. If 

### we determine themonthly payments orderedby thispart of the divorce decree constitutemaintenance or alimony, the District Court properly held thepayments should terminate on Mrs. Bertagnolli's remarriage. Section 40-4-208(2), MCA. If, however, the payments were intended tobe a partof the property division between the parties, theproperty settlement produced forMrs. Bertagnolli a vested right in the payments. InreMarriage of Reilly (1978), Mont. I 577 P.2d 840, 844, 35 St.Rep. 451, 457. Under this interpretation of theoriginal decree, her remarriage would not affect thisright, and the DistrictCourt order terminating the payments should be reversed. This Court has considered the question of whether language indivorce decrees constitutes an award of maintenance or a divisionof property on severalprior occasions: Washington v. Washington (1973), 162Mont. 349, 354- 357, 512 P.2d 1300; Movius v. Movius (1974), 163Mont. 463, 467-469, 517 P.2d 884; Taylor v. Taylor (1975), 167~ont.164, 168-170, 537 P.2d 483; Englund v. Englund (1976), 169 Mont. 418, 421, 547 P.2d 841. Washington, Movius and Taylor allinvolved situations inwhich theparties tothe divorce had entered into settlement agreements which wereincorporated by reference into court divorce decrees. In those cases, 

### we looked tothe agreements todetermine if the alimony provisions 

### were integral parts of the entireagreement between the parties. If themaintenance provisions were inseparable from the property settlement portions of the entire agreement, 

### we held the alimonypayments constituted a part of theproperty settlement contract. As such, the courtsdid notpossess authority tomodify the agreement between theparties. Taylor, 167Mont. at 168. We cannot apply the analysisemployed inthese three

cases tothe instant case. The parties here didnot enter into a settlement agreement. Wecannot, therefore, determine if the alimony payments awarded toMrs. Bertagnolli

were an integralpartof the agreement between the parties. In addition, wecannot say theDistrictCourt erroneously exercised itspower by modifying an agreement between the parties here when no agreement existed. Wemust, therefore, relyon the standard 

### setoutin Englund v. Englund, supra, and cases from other jurisdictionsdealingwith situationswhere themaintenance award is decretal rather than based on a settled agreement. When the question arisesunder these circumstances, 

### we examine the intentof the DistrictCourt inissuing the decree todetermine if thepayments constitutemaintenance orpartof a property settlement. Englund, 169Mont. at421; Viglione v. Viglione (1976), 171Conn. 213, 368 A.2d 202, 204-205. Ifthe lower courtmistakenly labelsmaintenance what 

### it obviously intends tobe a partof the property settlement, 

### we willrecognize the award aspartof theproperty settlement

on appeal. Englund, 169Mont. at421. Applying thistest here, we find the facts show the trial courtintended thepayments tobe maintenance, not part of a property settlement. The language used by the ~istrict Court inthe originaldecree strongly indicates the court intended the payments tobe maintenance. The decree, as amended, reads: "In lieuof a division of the property of Plaintiff and Defendant, Defendant shall pay Plaintiff the sum of 

### SIX HUNDRED DOLLARS ($600.00) per month asand forher support and maintenance

# ..." The plain meaning of that language indicates the court intended the award toconstitutemaintenance instead of a property settlement. Inmaking the award, the lower court considered the abilityof Dr. Bertagnolli tomake payments and Mrs. Bertagnolli's necessary monthly expenses. It

### is clear from the reduction of the amount of the payments from $650 to $600 because the second figurewas closer toMrs. Bertagnolli's living expenses thatthe courtdidnot 

### tie the amount of the payments tothe value of theproperty accumulated by the parties during themarriage. This factalso leads to the conclusion that the DistrictCourt intended payments tobe maintenance rather than a property division. Finally, here, asinViglione where the Connecticut Supreme Courthad a transcriptof remarks made by the referee who originallydecided the case when calledupon to interpret theprovisions, we have the benefit of the interpretation of the questioned clause by thejudge thatissuedthe initialdecree. Wedo not face the Englund situationof reviewing the interpretation of the language by a second DistrictCourtjudge. The instant factsituationdoes not requireus toread themind of thejudge who entered the originaldecree todetermine itsmeaning. The judge that entered the initialdecree tells us what he intended by the language inthe decree inthe findings, conclusions, order and judgment he issued in 1978. The judge concluded the language inthe firstdecree awarded Mrs. Bertagnollimaintenance, notproperty settlementpayments. For thereasons set outabove, we affirmthejudgment of the DistrictCourt.

Q4-cIwLd

We concur: 

# XA~

#

# &&&a?Q Chief Justice

/; 

# PMr. Justice Daniel J. Shea dissenting:

An analysis of what the majority has done in this case must start with the end result. This Court has determined that a woman who gave 27 years to her husband as 

### a wife and mother of their 

### 7 children at the dissolution of this marriage which resulted in the joint accumulation of property worth $220,000 is entitled to absolutely nothing. This cannot be justice. The central issue, according to the majority, requires only an interpretation of the following conclusion of law contained in the divorce decree entered in July 1975: "In lieu of a division of the property of



### ---- -- Plaintiff and Defendant,Defendant shallpay Plaintiff

## the sum of 

### SIX HUNDRED DOLLARS ($600.00) per month as and for her support and maintenance



# . .

# ." (Emphasisadded.) Compelled of course, only by logic and justice, the trial court and this Court concluded that the payments were to continue only until such time as the wife should remarry. This conclusion is permitted only if the words "supportand maintenance" are interpreted as traditionalmaintenance. If so, then upon the wife's remarriage, the result naturally flows that under either section 48-330(2), R.C.M. 1947 (nowsection 40-4-208(2), MCA), or its predecessor in effect at the time of the entry of the decree, section 21-139,R.C.M. 1947 (repealedin 1975), that the duty of the husband to pay such "supportand maintenance" terminated upon the wife's remarriage in March 1978. Neither logic nor justice requires this result. Both the trial court and this Court ignore the implication which naturally follows from a conclusion of law awarding "support and maintenance" to the wife "in --- lieu of a division of the property" of the husband and wife. By this language the trial court plainly recognized that the wife had a property interest -8-in the assets of themarriage, but in considering the total circumstances,chose to order the property interest paid in

some other form. Themeaning of the phrase "in lieu of" is well defined. Black's Law Dictionary (4thEd., at 896) defines it asmeaning "instead of, as a substitute for", or "inplace of." The trial court chose the words "instead of", and so did the majority here: "Theplain meaning of that language indicates the court intended the award to constitute maintenance instead of -a property settlement." (Emphasisadded.) Both the trial court, and this Court, it seems, without a discussion,proceeded on the assumption that the phrase "support and maintenance" means solely a conditional form of payment, subject to termination by coming within the termination 1947 of support provisions contained in section 21-139, R.'G.P~Jand.its successor, section 40-4-208(2), MCA. I do not construe this phrase so narrowly,particularly in light of the devastating consequences it has in this case. By emphasizing that it was awarding support and maintenance in lieu of a property division, the trial court, in effect, stated: The wife has a right to an equitable division of the $220,000 assets acquired by the joint efforts of the parties during themarriage. However, rather than to divide the property, I



### am going to keep it intact by substituting in its stead, the right of thewife to support and maintenance in exchange for her giving up her claim to an equitable division of the real and personal property. Unfortunately, the trial court chose the words "supportand maintenance" rather than more accurately characterizing the true nature of her claim. Three years later these poorly chosen words became a trap for the unwary wife.



### -9-

### Here the trial court clearly recognized the wife's property interest in the $220,000marital estate. Despite this interest, did the trial courtmean that it was awarding her $600per month only until she remarried or became fully self-supporting? If this is the case, it awarded the wife virtually nothing. For her to realize anything out of the marital accumulations she had to refrainboth from remarriage and from becoming fully selfsupporting. In exchange for this conditional interest,did the wife give up, by virtue of the trial court's decree, any interest she had in the assets jointly acquired during the marriage, with a total value of $220,000? It strains credulity to consider this

as a fair exchange. This result, furthermore, is not compelled by the law or the facts. When the original decree was entered, it is clear that the "support and maintenance" was not awarded to her simply because shewas unable to support herself and her husband had the financialability to do so. Rather, itwas awarded to her to compensate for her interest in the property acquired during the marriage. Would there be any other reason for the trial court to condition this "supportormaintenance" as being 

### -- in lieu of 

### -a division of property.. 

# . ."? 

### The findings and conclusions originally entered by the trial court fully support the conclusion that the wife was being compensated for a property interest. That property interest,however ill-defined,vested at the time of the entry of the findings and conclusions and the failure of the husband to appeal from the trial court's original judgment. A detailed 

### summary of the trial 

### court proceedings in this case is necessary to understand the stature of the case at the time itwas submitted to the trial court for decision. It is a gross over-simplification, to conclude, as themajority has, that the only issue to be decided is to determine themeaning of the questioned clause in the divorce decree,but to ignore the status of the case at the time itwas submitted to the trial court for a determination of the rights of the parties. -10-

### In September 1974, the wife filed a complaint for the dissolution of her marriage. She specifically alleged that the parties had acquired real and personal property through their joint efforts and further requested the trial court to
"determine those rights [and] set over to each of the parties their respective rights in said property." She also asked for temporary support ormaintenance pending the final decree. Concerning her request for alimony ormaintenance, the wife alleged that shewas without any means of support and that the husband "shouldbe required to pay plaintiff monthly alimony

or a lump sum in lieu thereof, as in the Court's discretion it ------ 

### may deem equitable." (Emphasisadded.) In her prayer for relief she specifically requested the trial court to "make an equitable division of the property of the parties" and to order "such sums as it deemsmeet and equitable for Plaintiff's support and maintenance,. 

# . ." The issues as to property and maintenance were joined when the husband filed his answer. He denied the wife's allegation that theproperty was acquired by their joint efforts and he denied her allegation that she was in need of maintenance. Concerning her allegation as to the accumulation of marital property, the husband specifically alleged: 

# ".

.. this answering defendant admits that during their married life defendant has accumulated certain real and personal properties; denies each and every allegation and every part of every allegation of said paragraph not hereinbefore otherwise qualified or admitted." (Emphasisadded.) It is clear, therefore, that the husband claimed all the property for himself, that is, that he alone had accumulated the property. In his prayer for relief,he requested that the wife take nothing by her complaint and that he be granted all the relief

### he requested. This of course would require a determination that he alone owned all the property acquired during the marriage and that the wife should be paid nothing formaintenance. Before the actual dissolution of marriage, the wife obtained a temporary maintenance order from the trial court based upon her allegations,and the evidence submitted in support of her need. Before trial on the merits because she had no access to the records involved, she submitted detailed interrogatories to the husband concerning a listing and valuation of the property acquired during the marriage. Itwas established that the value of the real property and personal property acquired during themarriage was in the vicinity of $220,000. After a hearing on the merits the trial court entered its findingsof fact and conclusionsof law. The record of the trial is not available to this Court for it appears that either the court reporter or someone in the Clerk of Court's office lost the trial notes, leaving a transcription impossible. The divorce was granted on the basis of irreconcilable differences;both wife and husband were found to be fit and proper to have custody of the children; custody was awarded to the husband based upon the request of the wife and request of the husband. At the time of the divorce the wife was age 49 

### and the husband age 50. The husband had a taxable income of $50,000per year and net income of $36,000per year. As to the property acquired during the marriage, the trial court entered the following findings: "The



## -Plaintiff 

## - and Defendant in their married lives have accumulated certain 

### -- realand personal property, consisting of real estate and personal property and investments and securities having a total value of TWO 

### HUNDRED TWENTY THOUSAND DOLLARS 

### ($220,000.00), all of which are more specifically described in Exhibit

'A1attached hereto and by this referencemade a part thereof; -12-"All of the property of the parties accumulated during their marriage as aforesaid, is in the possession and control of the Defendant,with the exception of a 1970 Renault, which is in the possession of the Plaintiff;" The trial court entered five conclusions of law,but only

one of them related to the property acquired by the husband and wife during themarriage, and it is the provision disputed in this appeal: "In lieu of a division of the property of 

### -- 

## lai in tiff and Defendant, Defendant shallpay Plaintiff

## the sum of 

### SIX HUNDRED AND FIFTY DOLLARS ($650.00) per month as and for her support and maintenance commencing July 1, 1975,which sums shallbe paid on the 1st of each month by the Defendant through the Clerk of the aboveentitled Court;" (Emphasisadded.) After the entry of judgment, the husband immediately recognized that the trial court had found that the property had been accumulated by the efforts of he and his wife, and he therefore launched an attack onthis finding by moving the trial court to amend its findings and conclusions. With respect to the finding on the joint accumulation of the real and personal property the husband requested the trial court to substitute the following finding of fact. 

# ".

. . that the property and assets accumulated during the marriage is not the result of joint efforts of plaintiff and defendant, but rather, is almost solely as a result of defendant's investmentprogram and labor as a general practitioner." By making this motion, it cannot be denied, that the husband knew full well that the wife was recognized in the decree as having an interest in the $220,000 assets accumulated during the marriage. In addition to asking the trial court to change its finding in relation to the property accumulationsby the joint efforts of the husband and wife, and to substitute a finding that only the husband had contributed to and acquired this property, the husband asked the trial court to reduce themonthly payment from $650per month to $600per month. It is apparent that he had an ulterior motive in making this request. The husband gambled that should the court not change its finding relating to the joint acquisition of marital assets, an order reducing the amount paid would serve as a launching pad for future argument that the monthly payments were nothing

more than traditional maintenance, terminable upon the wife either becoming fully self-supporting or upon her remarriage. He proved to be correct. We thus have the situation in which the trial court refused to change the finding of fact that the wife and husband had jointly acquired real and personal property valued at $220,000. On the other hand, the trial court reduced the monthly payment from $650 per month to $600per month. The wife did not appeal from the trial court's reduction of the monthly payments, and the husband did not appeal from the trial court's finding, and its refusal to change the finding of fact that the husband and wife had jointly accumulated the marital estate valued at $220,000. This is the status of the District Court judgment as it reaches

us on this appeal. There is another crucial event which occurred after entry of the original judgment, which must be considered. After both parties had foregonean appeal, the wife, in relianceupon the decree awarding her "maintenanceand support" as a substitute for a "divisionof the property of Plaintiff [thewife] and Defendant [thehusband]", conveyed all her interest in the real property to her husband, and also gave up any interest she had in the personal property acquired during the marriage. Would she have done this if she believed that either her remarriage or her becoming fully self-supportingwould automatically cut off the monthly payments and terminate any claim she had to the marital -14-assets? This, in effect, is what the trial court held, and this in effect, is what this Court held. The result is that if we presume no increase in valuation of the marital estate, the husband paid close to $18,000 to the wife in the form ofmonthly payments from August 1975 through March 1978. Thus, from the marital assets, the husband has received property valued at $202,000 ($220,000 less $18,000) and the wife has received $18,000. The husband has received

more than ten times what the wife has received. This can hardly be classified as an equitable distribution of the marital assets. 

### I fail to see under these circumstances how either equity or the law is on the side of the husband. Stripped to its essentials, themajority opinion reasons

as follows: The plain meaning of the questioned clause in the divorce decree is that only support and maintenance in the traditional sense is contemplated. But if the plain reading is not enough to justify this conclusion, then this, combined with the factors considered by the trial court in arriving at themonthly financial needs of the wife and the ability of the husband to respond to those financial needs, is indicative that

no property interest,direct or indirect,was contemplated. Thus, reaching the conclusion that no property interest (direct or indirect)was contemplated, the majority concludes that, unlike a property interest, the receipt of support and maintenance is not a vested right; rather it is a charitable gift, subject to the subsequent conditions contained in section 29-131, R.C.M. 1947,and its successor, section 48-330(2), R.C.M. 1947 (now section 40-4-208(2), MCA). Upon the happening of any of these subsequent conditions contained in these statutes, the right to receive support and maintenance is terminated. Here, the wife's remarriage triggered the provision of the statute providing that remarriage terminates the obligation to pay support and maintenance. -15-

### If themeaning is so plain, the majority should merely have confined itself to a discussion of the clause itself in reaching the decision that the wife's support and maintenance

was terminated upon her remarriage. Furthermore,as Ihave previously discussed, themajority totally ignored the implication that a property right of some kind was recognized by the fact that the trial court had found the wife and husband had jointly accumulated themarital assets, and that support and maintenance

was awarded to the wife as a substitute ("inlieu of") for her giving up specific claims to the $220,000 marital assets. The majority ignored the crucial fact that in relianceupon the decree, thewife conveyed all her interest in the real estate to the husband and gave up any claim to specific personal property assets accumulated during themarriage. Nor can Igive much weight to the factors allegedly considered by the trial court in arriving at the monthly payments. The trial court chose not to apportion the marital assets between the parties--that is, it chose to keep these assets intact. In effect, it awarded them to the husband. As long

as the trial court chose not to order a division of the property, which may have required a sale, it had to consider both the ability of the husband to make monthly payments and thewife's needs in arriving at what it considered a reasonable monthly payment. If this were not done, the practical effect might have been that the husband would have been compelled to sell some of the assets in order tomeet the monthly payments. This, ostensibly, is what the trial courtwas trying to avoid. But, above all, the vital factor is that the support and maintenance was awarded

as a substitute for a property division. This is not support and maintenance in the traditional sense, subject to termination upon thewife either becoming fully self-supporting or upon her remarriage.

### Without question, in substituting support and maintenance for an equitable property division, the trial court recognized that the wife had a claim to an equitable division of the marital assets,but for reasons known only to the trial court, it chose to award this interest in the form of support and maintenance. Under the circumstances of this case, I

### have

no hesitation in concluding that the wife's interest in support and maintenance was a vested interest. It appears that neither party had any control over the terminology of the divorce decree. I say this because there is nothing in the record to indicate whether either party suggested the terminology contained in the questioned clause, or even suggested this approach to the trial court. The District Court file contains no proposed findings and conclusions, thus it is difficult to determine the precise theory used by either the husband or thewife. By concluding that the wife has a vested right to support and maintenance, I 

### am not unmindful of the potential implications of this result--namely,that the wife would have a claim to $600 

### per month for the rest of her natural life being that the trial court set no value on that portion of themarital assets towhich she was equitably entitled. Thiswould mean that she had the potential of realizing much more from the marital estate than would be her just share. Because the language used by the trial court is so poorly chosen, it is impossible to determine the future rights of the parties without additional proceedings in the trial court. Iwould reverse the trial court and remand for a 

### determination of the value of the estate to which the wife is equitably entitled, and then permit the $600

### monthly payments to continue until that value is satisfied. In the alternative, I

### would order that the trial court equitably apportion the marital assets between the husband and wife, assuming that they are still sufficiently intact and not encumbered. -17-It isa gross injusticetolet the decision of the trialcourt stand, the effect of which is toratifya decision that thewife is entitledtoless than one-tenth of the marital estateafter she has given 27 years toher husband as

a wife and mother of their 7 children. This result should be sanctionedby neither law nor equity.