No. 14674 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

PATRICIA H. 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: 

For Appellant: 

Drysdale, McLean and Screnar, Bozeman, Montana 

For Respondent: 

Berg, Morgan, Coil & Stokes, Bozeman, Montana 

Submitted on briefs: September 12, 1979 

Decided : OEC 19 1979 

Filed: 2 ?im 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

Appellant, formerly Patricia H. Bertagnolli, began this 

action in 1974 by filing a complaint for divorce in the 

Eighteenth Judicial District before the Honorable W. 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 complaint was filed, Dr. and Mrs. 

Bertagnolli had been married for 27 years. During the 

marriage, Dr. Bertagnolli practiced medicine in Three Forks, 

Montana, and Mrs. Bertagnolli cared for the couple's home 

and raised the seven children born to the marriage. The 

couple accumulated real estate and personal property valued 

at $220,000 at the time of their divorce. In the years 

immediately prior 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 to move from Three 

Forks to Bozeman. The complaint filed by Mrs. ~ertganolli 

states that she felt it would be in the best interests of 

the couple's children to remain together in their home in 

Three Forks where 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 court would award custody to Dr. 

Bertagnolli. The exhibits show Mrs. Bertagnolli needed 

approximately $550 per month to provide for herself. Dr. 
Bertagnolli, on the other hand, required almost five times 

that amount to maintain a household for the couple's children, Dr. Bertagnolli's Exhibit A lists over $2400 per 

month in expenses necessary to support the Bertagnolli 

children still dependent on their parents. The list includes expenses for food, clothing, housing and college for 

a large family. 

Subsequent to hearing the complaint, the District Court 

found all of the property accumulated by the parties during 

their marriage was in the possession of Dr. Bertagnolli 

except a 1970 Renault automobile which was in the possession 

of Mrs. Bertagnolli. The court also found it would be in 

the best interest of the children of the marriage to be 

placed in the custody of Dr. Bertagnolli. Based on these 

findings, the court awarded custody of the children to Dr. 

Bertagnolli, ordered him to pay Mrs. Bertagnolli's tuition 

and book expenses if she attended college, ordered the 

doctor to pay Mrs. Bertagnolli's attorney fees and ordered 

him to pay her $650 per month for her support and maintenance. Pursuant to a timely motion by Dr. Bertagnolli, 

the court amended the judgment reducing the monthly payment 

to $600. Faced with the necessity of keeping the property 

of the marriage together for the support of the couple's 

large family, the court awarded Dr. ~ertagnolli all the 

property in his possession. Although the judgment granted 

almost none of the couple's property to Mrs. Bertagnolli, 

she did not appeal the District Court's decision. 

Mrs. Bertagnolli remarried in 1978. After the remarriage, Dr. Bertagnolli refused to make any further monthly 

payments. The appellant, now Mrs. Nelson, petitioned the 

District Court to hold the doctor in contempt for failing to 
make his monthly 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 to terminate maintenance payments 

upon the remarriage of the party receiving maintenance 

absent certain conditions not present in this case. Mrs. 

Nelson appeals this decision of the lower court. 

The controversy in this case centers around the language in the amended decree of divorce and judgment entered 

in 1975 granting the former Mrs. Bertagnolli support and 

maintenance payments in lieu of a property division. If we 

determine the monthly payments ordered by this part of the 

divorce decree constitute maintenance or alimony, the District Court properly held the payments should terminate on 

Mrs. Bertagnolli's remarriage. Section 40-4-208(2), MCA. 

If, however, the payments were intended to be a part of the 

property division between the parties, the property settlement produced for Mrs. Bertagnolli a vested right in the 

payments. In re Marriage of Reilly (1978), Mont. I 

577 P.2d 840, 844, 35 St.Rep. 451, 457. Under this interpretation of the original decree, her remarriage would not 

affect this right, and the District Court order terminating 

the payments should be reversed. 

This Court has considered the question of whether 

language in divorce decrees constitutes an award of maintenance or a division of property on several prior occasions: Washington v. Washington (1973), 162 Mont. 349, 354- 

357, 512 P. 2d 1300; Movius v. Movius (1974), 163 Mont. 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 all involved situations 

in which the parties to the divorce had entered into settlement agreements which were incorporated by reference into 

court divorce decrees. In those cases, we looked to the 

agreements to determine if the alimony provisions were 

integral parts of the entire agreement between the parties. 

If the maintenance provisions were inseparable from the 

property settlement portions of the entire agreement, we 

held the alimony payments constituted a part of the property 

settlement contract. As such, the courts did not possess 

authority to modify the agreement between the parties. 

Taylor, 167 Mont. at 168. 

We cannot apply the analysis employed in these three 

cases to the instant case. The parties here did not enter 

into a settlement agreement. We cannot, therefore, determine if the alimony payments awarded to Mrs. Bertagnolli 

were an integral part of the agreement between the parties. 

In addition, we cannot say the District Court erroneously 

exercised its power by modifying an agreement between the 

parties here when no agreement existed. 

We must, therefore, rely on the standard set out in 

Englund v. Englund, supra, and cases from other jurisdictions dealing with situations where the maintenance award is 

decretal rather than based on a settled agreement. When the 

question arises under these circumstances, we examine the 

intent of the District Court in issuing the decree to determine if the payments constitute maintenance or part of a 

property settlement. Englund, 169 Mont. at 421; Viglione v. 

Viglione (1976), 171 Conn. 213, 368 A.2d 202, 204-205. If 
the lower court mistakenly labels maintenance what it obviously intends to be a part of the property settlement, we 

will recognize the award as part of the property settlement 

on appeal. Englund, 169 Mont. at 421. 

Applying this test here, we find the facts show the 

trial court intended the payments to be maintenance, not part 

of a property settlement. The language used by the ~istrict 

Court in the original decree strongly indicates the court 

intended the payments to be maintenance. The decree, as 

amended, reads: 

"In lieu of a division of the property of 

Plaintiff and Defendant, Defendant shall 

pay Plaintiff the sum of SIX HUNDRED DOLLARS 

($600.00) per month as and for her support 

and maintenance . . . " 

The plain meaning of that language indicates the court 

intended the award to constitute maintenance instead of a 

property settlement. 

In making the award, the lower court considered the 

ability of Dr. Bertagnolli to make 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 figure was closer to Mrs. Bertagnolli's 

living expenses that the court did not tie the amount of the 

payments to the value of the property accumulated by the 

parties during the marriage. This fact also leads to the 

conclusion that the District Court intended payments to be 

maintenance rather than a property division. 

Finally, here, as in Viglione where the Connecticut 

Supreme Court had a transcript of remarks made by the 

referee who originally decided the case when called upon to 

interpret the provisions, we have the benefit of the interpretation of the questioned clause by the judge that issued 
the initial decree. We do not face the Englund situation of 

reviewing the interpretation of the language by a second 

District Court judge. The instant fact situation does not 

require us to read the mind of the judge who entered the 

original decree to determine its meaning. The judge that 

entered the initial decree tells us what he intended by the 

language in the decree in the findings, conclusions, order 

and judgment he issued in 1978. The judge concluded the 

language in the first decree awarded Mrs. Bertagnolli maintenance, not property settlement payments. 

For the reasons set out above, we affirm the judgment 

of the District Court. 

Q4-cIwLd 

We concur: 

XA~ # &&&a?Q 

Chief Justice /; P 
Mr. 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 . . ." (Emphasis added.) 

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 "support and maintenance" 

are interpreted as traditional maintenance. If so, then upon 

the wife's remarriage, the result naturally flows that under 

either section 48-330(2), R.C.M. 1947 (now section 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 (repealed in 1975), that 

the duty of the husband to pay such "support and 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 the marriage, but in considering the total 

circumstances, chose to order the property interest paid in 

some other form. 

The meaning of the phrase "in lieu of" is well defined. 

Black's Law Dictionary (4th Ed., at 896) defines it as meaning 

"instead of, as a substitute for", or "in place of." The trial 

court chose the words "instead of", and so did the majority here: 

"The plain meaning of that language indicates 

the court intended the award to constitute 

maintenance instead of - a property settlement." 

(Emphasis added.) 

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 

the marriage. However, rather than to divide the property, I 

am going to keep it intact by substituting in its stead, the right 

of the wife 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 "support and 

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 $220,000 marital estate. Despite this interest, 

did the trial court mean that it was awarding her $600 per 

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 refrain both 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 

she was unable to support herself and her husband had the 

financial ability to do so. Rather, it was 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 "support or maintenance" 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 it was submitted to the trial court for decision. It is 

a gross over-simplification, to conclude, as the majority has, 

that the only issue to be decided is to determine the meaning of 

the questioned clause in the divorce decree, but to ignore the 

status of the case at the time it was 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 or maintenance pending the final decree. 

Concerning her request for alimony or maintenance, the 

wife alleged that she was without any means of support and that 

the husband "should be required to pay plaintiff monthly alimony 

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

may deem equitable." (Emphasis added.) 

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 deems meet 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 the property 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." (Emphasis added.) 

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 for maintenance. 

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. It was established 

that the value of the real property and personal property 

acquired during the marriage was in the vicinity of $220,000. 

After a hearing on the merits the trial court entered its 

findings of fact and conclusions of 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 

$50,000 per year and net income of $36,000 per 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 

'A1 attached hereto and by this reference made 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 the marriage, 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 shall be paid on the 1st of each month by 

the Defendant through the Clerk of the aboveentitled Court;" (Emphasis added.) 

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 on this 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 

investment program 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 accumulations by 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 the monthly payment from $650 
per month to $600 per 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 $600 per 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 foregone an appeal, the wife, in reliance upon the 

decree awarding her "maintenance and support" as a substitute 

for a "division of the property of Plaintiff [the wife] and 

Defendant [the husband]", 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-supporting would 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 of monthly 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, the majority 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 

the monthly 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 the meaning 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 I have 

previously discussed, the majority 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 the marital assets, and that support and maintenance 

was awarded to the wife as a substitute ("in lieu of") for her 

giving up specific claims to the $220,000 marital assets. The 

majority ignored the crucial fact that in reliance upon the 

decree, the wife conveyed all her interest in the real estate 

to the husband and gave up any claim to specific personal 

property assets accumulated during the marriage. 

Nor can I give 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 the wife'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 to meet the monthly payments. This, ostensibly, 

is what the trial court was 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 the wife 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 the wife. 

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 the marital assets 

to which she was equitably entitled. This would 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. 

I would 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 is a gross injustice to let the decision of the 

trial court stand, the effect of which is to ratify a decision 

that the wife is entitled to less than one-tenth of the 

marital estate after she has given 27 years to her husband as 

a wife and mother of their 7 children. This result should be 

sanctioned by neither law nor equity.