KOTTAS v KOTTAS

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No. 12515 I N T E SUPREME C U T O THE STATE O MONTANA H OR F F 1973 HELEN KOTTAS , P l a i n t i f f and A p p e l l a n t , -VS - LEO J. KOTTAS, Defendant and ~ e s p o n d e n t . Appeal from: D i s t r i c t Court of t h e F i f t h J u d i c i a l D i s t r i c t , Honorable Frank E. B l a i r , Judge p r e s i d i n g . Counsel of Record: For Appellant : H a r r i s , Jackson and Utick, Helena, Montana Vernon H a r r i s argued and J. R . Wine, Jr. argued, Helena, Montana For Respondent : Leo J . K o t t a s , S r . argued, Helena, Montana A l f r e d Dougherty argued, Helena, Montana Submitted: November 27, 1973 Decided :FEB F i l e d :FEB - 1 1974 - 11974 M r . J u s t i c e John Conway Harrison d e l i v e r e d t h e Opinion o f t h e Court . This i s an appeal from t h e d e n i a l of a motion t o d i s m i s s o r i n t h e a l t e r n a t i v e f o r a change of p l a c e of t r i a l e n t e r e d i n t h e d i s t r i c t c o u r t of t h e f i f t h j u d i c i a l d i s t r i c t , J e f f e r s o n County. Defendant, Leo J. K o t t a s , h e r e i n a f t e r r e f e r r e d t o a s Leo, f i l e d a p e t i t i o n f o r o r d e r t o show c a u s e and f o r d e c l a r a t o r y r e l i e f i n t h e form of d e c l a r a t o r y d e c r e e o r d e c l a r a t o r y supplemental d e c r e e , and f o r o t h e r a p p r o p r i a t e r e l i e f i n t h e d i s t r i c t c o u r t , J e f f e r s o n County, on March 9 , 1973, praying f o r a n o r d e r t o show cause d i r e c t e d t o p l a i n t i f f , Helen K o t t a s (McCluskey), h e r e i n a f t e r r e f e r r e d t o a s Helen, o r d e r i n g h e r t o appear b e f o r e t h e c o u r t and t o show c a u s e , i f any, why t h e r e l i e f prayed f o r should n o t be g r a n t e d . Helen f i l e d a motion t o d i s m i s s f o r l a c k of j u r i s d i c t i o n over t h e person and s u b j e c t m a t t e r , o r i n t h e a l t e r n a t i v e , f o r change of p l a c e of t r i a l . Hearing was h e l d on A p r i l 13, 1973, b e f o r e t h e Hon. Frank E. B l a i r . Subsequently Judge B l a i r denied ele en's motion and she now a p p e a l s . The p a r t i e s were married i n 1943. O A p r i l 6, 1966, a d e c r e e n of d i v o r c e was g r a n t e d t o Helen by t h e d i s t r i c t c o u r t of t h e f i f t h judicial district. That d e c r e e i n c o r p o r a t e d by r e f e r e n c e a p r o p e r t y s e t t l e m e n t e n t e r e d i n t o between t h e p a r t i e s and which i n p e r t i n e n t p a r t provided: *** "2. and Lots F o u r ( 4 ) , Five ( 5 ) , S i x ( 6 ) , Seven (7) and Eight (8) of Block Seventeen (17) of t h e C , W. Cannon Addition t o t h e C i t y of Helena, Montana, s h a l l be t h e p r o p e r t y of f i r s t p a r t y and second p a r t y i n e q u a l s h a r e s , and each of t h e p a r t i e s a g r e e s t h a t he o r she w i l l n o t s e l l o r encumber h i s o r h e r s h a r e i n any of s a i d p r o p e r t y w i t h o u t t h e consent and agreement of t h e o t h e r , and upon a s a l e of any of s a i d p r o p e r t y by agreement, t h e n e t proceeds therefrom s h a l l be d i v i d e d e q u a l l y between p a r t i e s . That t h e t a x assessment s h a l l be d i v i d e d and each t o r e c e i v e h i s o r h e r t a x n o t i c e s and each t o pay any t a x e s o r assessments made on such i n t e r e s t , 11 On June 10, 1968, Helen quitclaimed her share of the property to Leo, so that he could sell the property. He did so in July 1968, and remitted $12,360.25 to Helen as her one-half share after deducting expenses of the sale. Helen alleges in August 1972, she discovered the sale price of the property was some $53,000. She demanded $26,500, less her proportionate share of the sale expenses, from Leo as her share of the proceeds. Negotiations ensued, proved fruitless, and on February 23, 1973, Helen's attorney informed ~ e o ' sattorney by letter that a complaint to recover the alleged deficiency would be filed on March 15, 1973, unless a satisfactory accord was reached prior to that date. On March 9, 1973, Leo filed the heretofore mentioned petition in the district court of Jefferson County. In that petition Leo alleged, among other things, that at the time the property settlement was negotiated it was understood by the parties that the term "net proceeds'' as used in paragraph two of the property settlement meant the gross sale price less proper expenses of sale and, in addition, less his investment in the property, that is to say,what he paid for it. It was on this basis that he paid $12,360.25 to Helen. On the same day, March 9, 1973, the district court issued an order to show cause directed to Helen, ordering her to appear on April 13, 1973. On March 12, 1973, el en's attorney filed a complaint against Leo in the first judicial district, Lewis and Clark County. Basically she alleged that the term "net proceeds" as used in the property settlement meant the gross sale price less any proper expenses of the sale, hence her share of the sale price should have been $26,500, less one-half of the sale expenses. In her appeal Helen characterizes the issue as a jurisdictional one. She reasons that the failure to pay over her alleged share of the proceeds of the sale sounded in either tort or contract and jurisdiction properly belongs in the first judicial district. We do not agree. We base our holding on the distinction between actual modification of a judgment and clarification or interpretation of a judgment. This Court in State ex rel. Kruletz v. District Court, 110 Mont. 36, 41, 98 P.2d 883, said: he test is whether on the one hand the change will make the record speak the truth as to what was actually determined or done, or intended to be determined or done by the court, or whether, on the other hand, it will alter such action or intended action. 1 1 See also: State ex rel. Vaughn v, District Court, 111 Mont. 552, 111 P.2d 810; Morse v. Morse, 116 Mont. 504, 154 P,2d 982; State ex rel. Truax v, Town of Lima, 121 Mont. 152, 193 P.2d 1008. The above cited cases deal with the types of error now taken care of by Rule 60, M.R.Civ.l?., such as the entry of a wrong date, or failure to include a party in an order. The instant case does not present such a clear cut case of scrivner's error, or inadvertent omission; nevertheless we think the problem is of such a nature that the court rendering the decree should take jurisdiction to resolve the issue. Such a resolution will not change the rights of the parties as set forth in the original decree, rather it will be a further declaration and amplification dwhat was originally held. In 27B C.J.S., Divorce, § 300(4) ( ) it is said: a, I IThe interpretation or clarification of an ambiguous judgment does not involve amendment thereof, so that even though power to modify is lacking, a court may construe and clarify a decree disposing of property, or enforce it. II That application is exactly what is called for in the instant case. Murphy v. Murphy, 64 Nev. 440, 183 P.2d 632; Grenz v. Grenz, 78 Nev. 394, 374 P.2d 891; Stieler v, Stieler, 244 Minn. 312, 70 N.W.2d 127; Palmi v. Palmi, 273 Minn. 97, 140 N.W.2d 77; Mitchell v. Mitchell, 307 Mich. 366, 11 N.W.2d 922; Walker v. Walker, 327 Mich. 707, 42 N.W.2d 790; Harbin v. Harbin, 12 Mich. App. 320, 162 M.W.2d 822. Therefore, t h e d i s t r i c t c o u r t of t h e f i f t h j u d i c i a l d i s t r i c t p r o p e r l y took j u r i s d i c t i o n t o c l a r i f y t h e ambiguity i n ' t h e p r o p e r t y s e t t l e m e n t i n c o r p o r a t e d by r e f e r e n c e i n t o t h e d i v o r c e decree. Judge i lair's o r d e r of d e n i a l i s a f f i r m e d . IZJe Cbncur: F u Chief J u s t i c e Justices. -a-'.Ld

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