MOVIUS v MOVIUS

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NO. 12083 I N THE SUPREME C U T O THE STATE O M N A A OR F F OTN 1972 R T A. MOVIUS , UH P l a i n t i f f and Appellant, -vs - ARTHUR J. MOVIUS, J R . , Defendant and Respondent. Appeal from: D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l District, Honorable Charles Luedke, Judge p r e s i d i n g . Counsel of Record: For Appellant : S c o t t , S c o t t and Baugh, B i l l i n g s , Montana. J e f f r e y J o S c o t t argued, B i l l i n g s , Montana. For Respondent : Michael J. Whalen argued, B i l l i n g s , Montana. Submitted: February 16, 1972 flM 1- 1 9 7 ~ ~ Decided : 1 I Honorable Jack D. Shanstrom, D i s t r i c t Judge, s i t t i n g in place of Mr. J u s t i c e Wesley Castles, delivered the Opinion of the Court. This appeal and cross-appeal a r i s e s out of two separate actions f i l e d in the d i s t r i c t court of the t h i r t e e n t h judicial d i s t r i c t , in and f o r the county of Yellowstone, both of which were consolidated in the lower court. The source of both actions i s a divorce decree entered between the The decree incorporated by reference a property p a r t i e s on August 8, 1956. settlement agreement, the terms of which form the basis of t h i s appeal. Appellant here and p l a i n t i f f below i s the f i r s t wife of respondent who i s a l s o a cross-appellant. The parties in t h i s opinion will be referred t o respectively as p l a i n t i f f and defendant. The matters presently before the Court were i n s t i t u t e d by p l a i n t i f f in the divorce action t o enforce c e r t a i n terms of the property settlement agreement alleged t o have been breached by defendant. P l a i n t i f f a t the same time f i l e d an original complaint in s p e c i f i c performance t o compel compliance The reason f o r t h i s duplication in the lower court with the same agreement. i s not e n t i r e l y c l e a r . In any event, the issues in each case a r e i d e n t i c a l , and will be so treated here. P l a i n t i f f a s s e r t s s i x issues f o r review; defendant cross-appeals on the c o u r t ' s requirement t h a t he pay any alimony a t a l l . All issues in vary- ing degrees go t o the d i s t r i c t c o u r t ' s construction of the property s e t t l e ment agreement. I t i s most convenient t o discuss the issues in conjunction with the evidence. The important f a c t s a r e not in dispute. A t the time of t h e i r divorce in 1956, the p a r t i e s agreed in w r i t i n g on matters of property settlement, alimony and child support. The pertinent provisions of t h e i r agreement read as follows: "6. Beginning September 1 , 1956, First Party will make the following monthly payments t o Second Party: " ( a ) The sum of $632.00 per month. " ( b ) The sum of $150.00 per month f o r the support of Arthur J . Movius, 111. " ( c ) The sum of $1 50.00 per month f o r the support of David Lewis Movius. "(d) The a d d i t i o n a l sum o f $150.00 p e r month f o r t h e s u p p o r t o f each o f s a i d sons d u r i n g t h e months o f each y e a r each i s a t t e n d i n g c o l l e g e . "Second P a r t y agrees t h a t from t h e payments s p e c i f i e d under ( b ) , ( c ) and ( d ) , she w i l l c a r e f o r and m a i n t a i n s a i d c h i l d r e n u n t i l t h e y r e s p e c t i v e l y complete t h e i r c o l l e g e education; provided, however, t h a t i f t h e sums s p e c i f i e d under ( b ) , ( c ) and ( d ) , t o g e t h e r w i t h o t h e r income, i f any, r e c e i v e d by s a i d c h i l d r e n should be inadequate t o pay f o r t h e maintenance o f s a i d c h i l d r e n and t h e i r c o l l e g e expenses, F i r s t P a r t y w i l l , upon s a t i s f a c t o r y p r o o f t h a t t h e a f o r e s a i d sums a r e inadequate f o r such purposes, make such a d d i t i o n a l payments as may be reasonably necessary t o p e r m i t each o f s a i d c h i l d r e n t o m a i n t a i n t h e l i v i n g standards p r e v a l e n t a t t h e c o l l e g e which he i s a t t e n d i n g . "If t h e a d j u s t e d gross income o f t h e P a r t y o f t h e F i r s t P a r t i s l e s s t h a n $35,000.00 f o r any y e a r , t h e payments t o Second P a r t y f o r t h e succeeding y e a r under subparagraphs ( a ) , ( b ) , ( c ) , and ( d ) s h a l l be decreased by 4 p e r c e n t o f t h e d i f f e r e n c e between t h e a d j u s t e d gross income and $36,500.00. I f t h e a d j u s t e d gross income o f F i r s t P a r t y i s more t h a n $38,000.00 f o r any year, t h e payments t o Second P a r t y f o r t h e succeeding y e a r under subparagraphs ( a ) , ( b ) , ( c ) and ( d ) s h a l l be increased by 4 p e r c e n t o f t h e d i f f e r e n c e between $36,500.00 and t h e a d j u s t e d gross income. " T h i s e x t e n s i v e q u o t a t i o n forms t h e b a s i s o f p l a i n t i f f ' s c o n t e n t i o n s on appeal. She c l a i m s f i r s t t h a t t h e d i s t r i c t c o u r t should have awarded h e r t h e sum o f $6,750.00 f o r a d d i t i o n a l expenses i n c u r r e d by h e r f o r t h e c o l l e g e e d u c a t i o n o f t h e two boys over and above d e f e n d a n t ' s c h i l d s u p p o r t payments. T h i s t h e c o u r t r e f u s e d t o do f o r t h e reason t h a t p l a i n t i f f produced no p r o o f as t o t h e c h a r a c t e r o f such expenses, t h e i r amount o r t h e i r n e c e s s i t y . In s h o r t , t h e t r i a l c o u r t found t h a t p l a i n t i f f f a i l e d t o show t h e " s a t i s f a c t o r y p r o o f " r e q u i r e d by paragraph 6 (d) t o c r e a t e t h e e x t r a o b l i g a t i o n . Likewise, i t appears d u r i n g t h e p e r i o d p l a i n t i f f c l a i m s t h e a d d i t i o n a l s u p p o r t t h a t defendant gave d i r e c t f i n a n c i a l a i d t o t h e c h i l d r e n w h i l e t h e y were e n r o l l e d i n college. W agree t h a t p l a i n t i f f ' s c l a i m f o r a d d i t i o n a l e d u c a t i o n expenses e i s n o t s u s t a i n e d by t h e evidence. The c h i l d r e n b e i n g now emancipated and educated, t h e r e i s no f u r t h e r i s s u e on c h i l d support. P l a i n t i f f ' s n e x t c l a i m has t o do w i t h h e r alimony r i g h t s . Defendant's income i s down s u b s t a n t i a l l y f r o m i t s l e v e l a t t h e t i m e o f t h e d i v o r c e . i n g the 4 percent Apply- r e d u c t i o n f o r m u l a p r o v i d e d i n t h e agreement, t h e d i s t r i c t court denied p l a i n t i f f in e n t i r e t y her r i g h t t o alimony in 1969 and reduced i t s u b s t a n t i a l l y f o r 1970. In doing so, the court applied the 4 percent The e f f e c t adjustment f i g u r e on a monthly r a t h e r than an annual b a s i s . of t h i s was t o give defendant the benefit of 48 percent (4 percent per month times 12 months) of any reduction in income below $36,500.as an o f f s e t against alimony. P l a i n t i f f urges t h i s was e r r o r , t h a t the 4 percent reduction f a c t o r should have been applied annually. The property settlement agreement does not s t a t e which i n t e r p r e t a t i o n i s correct. Both p a r t i e s t e s t i f i e d in favor of the i n t e r p r e t a t i o n most favorable t o each. In concluding as i t d i d , the d i s t r i c t court found: "Referring t o the agreement as a whole, there i s discernible an intention of the p a r t i e s t o s e t t l e t h e i r a f f a i r s on an approximate equal sharing basis. The division of real and personal property i n t e r e s t s , on the terms provided, demonstrates t h i s . An analysis of paragraph 6 shows the existence of a similar objective w i t h respect t o P l a i n t i f f ' s entitlement t o share in the Def e n d a n t ' s f u t u r e income. B keying the amount of support y payments to the r i s e and f a l l of Defendant's income, when i t varies more than $1,500.00 e i t h e r way from $36,500.00, an adjustment f i g u r e of 4% per month approaches an equal division of income. Although the agreement provides f o r an increase o r a decrease of payments ' f o r the succeeding y e a r ' , i t i s the payments specified under subparagraphs ( a ) , ( b ) , ( c ) and ( d ) which a r e adjusted and they a r e monthly payments. On t h i s point the Defendant must prevai 1 ." Whi 1e we recognize p l a i n t i f f ' s argument t h a t a contrary decision might have been reached, we cannot say a s a matter of law t h a t the d i s t r i c t court misconstrued the agreement. I t was forced t o resolve an ambiguity, and there a r e sound reasons t o support the decision reached. The court was compelled t o look a t the overall i n t e n t of the p a r t i e s by established p r i n c i p l e s of contract construction, such a s s t a t e d in Steen vs. Rustad, 132 Mont. 96, 313 P.2d 1014: " * * * I t i s well established t h a t a court, i n i n t e r preting a written instrument, will not i s o l a t e c e r t a i n phrases of t h a t instrument in order t o garner the i n t e n t of the p a r t i e s , b u t will grasp the instrument by i t s four corners and i n the l i g h t of the e n t i r e instrument, ascertain the paramount and guiding intention of the p a r t i e s . * * *" Plaintiff next urges t h a t the court, under the same formula applied above, should have increased rather than decreased her alimony. This argu- ment i s based on the f a c t that the defendant, a physician and surgeon practicing in Billings, sold his i n t e r e s t in his medical partnership (The Billings Clinic) in 1967 f o r $80,000, payable over two years. This, urges p l a i n t i f f , should have been includable as part of defendant's "adjusted gross income" f o r those years, since i t was so l i s t e d on his income tax returns. The t r i a l court declined t o accept t h i s contention and excluded the sale proceeds from defendant's income f o r purposes of determining alimony. In so holding, the court emphasized the provisions of paragraph 2 of the property settlement agreement, reading as follows: "The Party of the F i r s t Part shall retain and own a l l property standing in his name, consisting of the following: " ( b ) His i n t e r e s t in the assets and accounts receivable of The Billings Clinic." To adopt p l a i n t i f f ' s position would operate to vest her with an i n t e r e s t in property that was clearly granted t o defendant years before in the agreement. The d i s t r i c t court reasoned and w agree t h a t to include e the s a l e proceeds of defendant's separate property f o r alimony computation would negate the express intention of the parties as above quoted. Plain- t i f f in 1956 relinquished a l l interest in and to The Billings Clinic. She should not now be heard to reassert i t . In conjunction with these proceedings in the lower court, the defendant petitioned to henceforth completely el iminate al 1 al imony requirements. His petition was based upon an alleged change in the financial c i r - cumstances of the parties. The t r i a l court complied t o the extent of reduc- ing p l a i n t i f f ' s alimony to $132 per month. Both parties appeal from t h i s determination. There i s no issue raised as to the authority of the d i s t r i c t court to make the modification. Whether the provisions of the property settlement agreement were contractual or decretal i s not argued. The question i s whether the court abused its discretion in ruling as it did. The standard to be applied in such cases is stated in Daniels v. Daniels, 147 Mont. 57, 409 P.2d 824, as follows: " * * * Thus, we see that under our law there is no guarantee of an annuity to a divorced wife. The trial judge in the ambit of his discretion must weigh the relative circumstances of the parties in light of the evidence presented in determining whether conditions demand a variation, alteration or revocation of alimony and support payments. We will look critically at that determination only if it is shown to be unsupported by the evidence before the trial court of the changing situations of the parties. The delicate decision is one of balancing the needs of the wife for support and maintenance against the husband's honest abil i ty to provide. " Under the facts here, we do not find the necessary abuse of discretion. For the ten years following the divorce, defendant's income ranged general ly between $36,500 and $45,000 annually. Then, with the termination of his partnership interest in The Billings Clinic in 1967, defendant's income dropped to $1 9,500 the fol lowing year. It rose to $26,500 in 1969 and was not more than that in 1970. At the time of the hearing, defendant was $10,000 in debt with no assets beyond accounts receivable from his medical practice. He had exhausted the receipts from the sale of the Clinic in setting up his new practice, making alimony payments and meeting living expenses. Plaintiff, on the other hand, had accumulated a net worth of approximately $137,000 and in addition was a 50 percent beneficiary to the proceeds of an estate appraised at $102,000 at the time of hearing. Although her income earning capacity was in dispute due to injuries sustained in a bicyclepedestrian accident, we cannot disagree with the district court's holding that she was financially able to provide for herself. The fact that defendant used a $20,000 inheritance from his sister in 1969 to meet mortgage payments on a home owned by his present wife is not in our opinion sufficient justification to overturn the lower court's ruling. Again we are dealing with broad discretionary guidelines, and whether we agree or disagree with the district court is not the issue. We are not able to state as a m a t t e r o f law t h a t t h e t r i a l judge abused " t h e ambit o f h i s d i s c r e t i o n . " Daniels , supra. What we have s a i d above a p p l i e s e q u a l l y t o b o t h p l a i n t i f f ' s appeal and defendant's cross-appeal on t h e s u b j e c t o f f u t u r e alimony. i s affirmed. The r u l i n g The $132 monthly payments do no more than pay t h e premiums on an insurance p o l i c y c a r r i e d by p l a i n t i f f ( w i t h t h e c h i l d r e n as c o n t i n g e n t b e n e f i c i a r i e s ) on defendant's 1 i f e . Such insurance p o l i c y was r e f e r r e d t o i n t h e p r o p e r t y s e t t l e m e n t agreement. There i s no d i s p u t e t h a t o u t o f t h e $632 monthly a1 imony payments c a l l e d f o r t h e r e i n , t h e sum o f $132 was s e t aside as t h e insurance premium. T h i s being t h e f a c t , we cannot d i s p u t e t h e d i s t r i c t court's finding: "Considering t h e purposes behind t h e c r e a t i o n and maintenance o f t h i s insurance p o l i c y , i t should be continued i n effect. "The payment t o p l a i n t i f f , t h e r e f o r e , should be reduced t o t h e sum o f $1 32.00 per month from and a f t e r March 6, 1970." The f i n a l i s s u e f o r review i s whether t h e d i s t r i c t c o u r t e r r e d by d i s m i s s i n g p l a i n t i f f ' s c l a i m f o r one-half t h e value o f c e r t a i n Montana S t a t e College revenue bonds owned by t h e p a r t i e s a t t h e t i m e o f t h e d i v o r c e . Para- graph 3 o f t h e p r o p e r t y s e t t l e m e n t agreement provides as f o l l o w s : "Each o f t h e p a r t i e s s h a l l be e n t i t l e d t o an undivided one-half i n t e r e s t i n a l l stocks and bonds standing i n t h e names o f t h e p a r t i e s hereto as j o i n t tenants." There i s much argument whether t h e bonds were owned by t h e p a r t i e s as j o i n t tenants o r , as contended by defendant, were bearer bonds. t r i c t c o u r t h e l d they were n o t j o i n t l y owned. The d i s - W need n o t r e s o l v e t h a t issue, e f o r i t i s undisputed t h a t defendant cashed t h e bonds i n 1957 and r e t a i n e d t h e proceeds. He d i d so i n o p p o s i t i o n t o a demand made by p l a i n t i f f ' s coun- s e l i n 1957 o r 1958 t h a t he pay over one-half t h e proceeds t o her. I n Montana, an a c t i o n upon t h e p r o v i s i o n s o f a w r i t t e n c o n t r a c t must be commenced w i t h i n e i g h t years o r be barred by t h e S t a t u t e o f L i m i t a t i o n s . Section 93-2603, R.C.M. 1947. P l a i n t i f f here waited n e a r l y 14 years a f t e r t h e a l l e g e d breach became known t o her. The judgment o f t h e d i s t r i c t c o u r t i s a f f i r m e d . ' t h i e f ,d t f t i c e : .+ . , \ Hon. Jack Shanstrom, d i s t r i c t judge, s i t t i n g in place of Mr. Justice Wesley Castles.

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