MARRIAGE OF KARTES

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No. 80-415 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981 LAURA MAY BRUNTON KARTES, Plaintiff and Respondent, VS . THEODORE C. KARTES, Defendant and Appellant. Appeal from: District Court of the Eighteenth Judicial District, In and for the County of Gallatin Honorable W. W. Lessley, Judge presiding Counsel of Record: For Appellant: Moses Law Firm, Billings, Montana Charles Moses argued, Billings, Montana For Respondent: Goetz and Madden, Bozeman, Montana James Goetz argued, Bozeman, Montana Submitted: September 22, 1981 Decided :fiN 2 i 1981 Mr. J u s t i c e Gene B . D a l y d e l i v e r e d t h e O p i n i o n o f t h e C o u r t . T h i s i s a n a c t i o n b a s e d on t h r e e a l l e g e d a g r e e m e n t s , o n e w r i t t e n and two o r a l , b e t w e e n a h u s b a n d and w i f e . The D i s t r i c t C o u r t f o u n d t h a t t h e w r i t t e n a g r e e m e n t and a re- l a t e d o r a l a g r e e m e n t were e n f o r c e a b l e a g a i n s t t h e h u s b a n d by his wife; a l l c l a i m s r e l a t i n g t o t h e t h i r d o r a l agreement were d i s m i s s e d . Both p a r t i e s a p p e a l . L a u r a May B r u n t o n m a r r i e d T h e o d o r e K a r t e s on J a n u a r y 22, 1973. They e n t e r e d i n t o a p r e n u p t i a l provided t h a t t h e r e a l a g r e e m e n t which and p e r s o n a l p r o p e r t y o f e a c h would remain s e p a r a t e . I n 1974 T h e o d o r e K a r t e s b r o u g h t s u i t a g a i n s t h i s two land i n G a l l a t i n County, s i s t e r s f o r t i t l e t o 320 a c r e s of Montana. He had h i r e d an a t t o r n e y who e s t i m a t e d that his f e e s f o r t h e a c t i o n would r a n g e f r o m $ 5 , 0 0 0 t o $ 7 , 5 0 0 . Theodore they would and Laura finance the a g r e e m e n t was e x e c u t e d Kartes legal by discussed expenses. privately handwr i t t e n A them on S e p t e m b e r how 18, 1974, in which L a u r a K a r t e s a g r e e d t o pay t h e l e g a l f e e s o f T h e o d o r e Kartes' q u i e t t i t l e a c t i o n and i n e x c h a n g e T h e o d o r e K a r t e s would g i v e t o L a u r a K a r t e s 1 0 % of h i s 320 a c r e s o r t h e v a l u e thereof. Theodore K a r t e s was successful a c t i o n a t t h e D i s t r i c t Court l e v e l . in the quiet title Laura K a r t e s p a i d her h u s b a n d ' s l e g a l f e e s amounting t o $8,627.86. Theodore Laura Rartes Kartes' claims that Theodore K a r t e s a g r e e d 320 acres if she sisters at appealed this time, the July t o convey a n a d d i t i o n a l financed the appeal. d e n i e s t h a t h e made t h i s o r a l a g r e e m e n t . decision. 20, 1976, 1 0 % of Theodore the Kar t e s T h e o d o r e K a r t e s ' q u i e t t i t l e a c t i o n was s u c c e s s f u l on appeal and, again, Laura Kartes paid her husband's legal f e e s amounting t o $7,049.79. Theodore Laura Kartes Kartes any has portion taken of no the action to convey acres or any 320 to value thereof. L a u r a K a r t e s c l a i m s t h a t t h e r e was a t h i r d a g r e e m e n t b e t w e e n h e r s e l f and h e r h u s b a n d . She c l a i m s t h a t i n J a n u a r y 1973, s h e a g r e e d t o advance f u n d s t o h e r husband f o r t h e i r living e x p e n s e s and that h e would repay her She i s c l a i m i n g repayment o f $143,457.53. expenditures. Theodore K a r t e s d e n i e s making s u c h a n a g r e e m e n t t o r e i m b u r s e h i s w i f e f o r t h e i r j o i n t l i v i n g expenses. Theodore K a r t e s does admit that he entered into a l i m i t e d a g r e e m e n t t o r e p a y h i s w i f e f o r money s h e a d v a n c e d him f o r l i v i n g and r a n c h e x p e n s e s . amount of t h e money three promissory Laura Kartes advanced notes claims, by h i s w i f e amounting however, H e claims t h a t the f u l l to that i s e v i d e n c e d by approximately the e x e c u t e d a t t h e same t i m e a s t h e n o t e s , chattel $4,800. mortgage indicates t h a t her husband owed h e r a t o t a l o f $ 2 0 , 1 2 3 , and t h a t t h e p r o m i s s o r y n o t e s w e r e o n l y a p a r t o f t h e o b l i g a t i o n owed t o h e r . A t trial, Laura Kartes submitted voluminous a c c o u n t i n g s of her expenses s i n c e 1973, i n c l u d i n g a l l of her living expenses, some o f her business expenses f o r t h e support of her son. t r i a l t h a t some of some o f expenses, and some She a d m i t t e d a t t h e t h e c a l c u l a t i o n s were i n e r r o r and t h a t t h e e x p e n s e s s h o u l d n o t have been included in the accountings. On A p r i l 1 0 , 1 9 8 0 , a t r i a l was h e l d w i t h o u t a j u r y . The District Court held that the written agreement for 10% of Theodore Kartes' ranch and the oral agreement for an additional 10% were enforceable against Theodore Kartes. The District Court ordered that Theodore Kartes pay Laura Kartes 20% of the value of the ranch and that the value be determined at the time he elected to pay her and based upon 20% of the value of the whole ranch. The District Court dismissed all of Laura Kartes' claims relating to the oral agreement for living expenses and found that the promissory notes from Theodore Kartes to Laura Kartes had been repaid in full. Both parties appeal. Under Rule 29(d), M.R.Civ.P., the parties agree that Laura Kartes is the appellant and Theodore Kartes is the respondent. We affirm the District Court's holding that Theodore Kartes owes Laura Kartes 20% of his land and affirm the dismissal of Laura Kartes' claim for living expenses. reverse the District Court's interpretation of We the enforceable contracts to the extent that Theodore Kartes must pay 20% of the value of his land as a whole. We recognize that Theordore Kartes has the option to transfer whichever acreage he chooses, or the value been raised thereof determined at the time of transfer. Essentially three issues have by the par ties: 1. Whether the District Court erred in its interpretation of the written agreement? 2. Whether there is substantial evidence to support the District Court's finding of an oral agreement for an additional 10% of Theodore Kartes' land; if so, is the agreement nevertheless barred by the statute of frauds? 3. Whether the District Court erred dismissing by a l l of L a u r a K a r t e s ' c l a i m s f o r l i v i n g e x p e n s e s ? Respondent, written Theodore agreement he Kartes, has an admits that under the to convey to obligation a p p e l l a n t 1 0 % of h i s r a n c h o r t h e v a l u e t h e r e o f . however, H e claims, t h a t t h e D i s t r i c t C o u r t e r r e d by o r d e r i n g t h a t h e m u s t c o n v e y 1 0 % o f t h e v a l u e o f h i s l a n d a s a whole i n a n amount determined at the time he makes the transfer. Respondent contends t h a t t h e second paragraph of t h e w r i t t e n a g r e e m e n t g r a n t s h i m t h e o p t i o n t o p a y i n money o r l a n d and g r a n t s him t h e s o l e d i s c r e t i o n t o c h o o s e which thirty-two acres t o transfer. This contention of is well-taken. respondent The second p a r a g r a p h of t h e w r i t t e n agreement p r o v i d e s : ". . D e s c r i p t i o n a s t o what metes and b- -n d s t o b e e s t a b l i s h e d w i l l b e d o n e by Ted o u-C. K t o be a i d i n hand t o - a r t e s o r money ------E -------------L a u r a May B r u n t o n by M o r t g a g e t o F e d e r a l Land Bank i n t h e amount s o s t a t e d a b o v e . " (Emphasis s u p p l i e d . ) The District respondent had Court the itself option wherever he wanted. observed to select at trial thirty-two that acres A p p e l l a n t h a s a d m i t t e d t h a t t h e r e was no q u e s t i o n a b o u t r e s p o n d e n t ' s r i g h t t o c h o o s e what l a n d t o convey. N e v e r t h e l e s s , t h e D i s t r i c t C o u r t awarded damages t o appellant i n an amount of 10% of the property taken a s a whole. A s t h i s C o u r t h a s h e l d many t i m e s , where t h e l a n g u a g e of a written nothing to apply the construe; language Danielson v. 894, and contract as Danielson cases cited is c l e a r and unambiguous, there is to duty of the court is simply written to the facts of the the ( 1 9 7 7 ) , 172 Mont. therein. 55, See s e c t i o n case. 560 P.2d 893, 1-4-101, MCA. F u r t h e r , i f a n e x p r e s s c o n t r a c t h a s b e e n e n t e r e d l n t o by t h e parties, t h e D i s t r i c t Court cannot a l t e r express agreement. (1979) - Mont . c i t i n g Keith v. , McNulty 596 it insert into a v. P.2d t e r m s of Bewley 36 St.Rep. K o t t a s ( 1 9 4 6 ) , 119 Mont. 98, 172 P.2d contract for language 1110, 306. t h e D i s t r i c t Court not put there Mont. H e r r i n v. H e r r i n ( 1 9 7 9 ) , 1 1 5 2 , 36 S t . K e p . the Corporation 474, is r e v e r s i b l e e r r o r Lastly, parties. See the , by to the 595 P.2d 193. Here, t h e w r i t t e n agreement is c l e a r t h a t r e s p o n d e n t has the option to choose which property to convey. The D i s t r i c t C o u r t may n o t d i s r e g a r d t h i s e x p l i c i t l a n g u a g e o f the contract by ordering respondent t o convey 1 0 % of the v a l u e of h i s l a n d a s a whole. Respondent also claims that the intention of the p a r t i e s was t h a t t h e l a n d would b e v a l u e d a t t h e t i m e o f t h e execution language court of the agreement addresses to discern this the in 1974. i t was question, intention Since of the no contract t h e d u t y of parties from the their The D i s t r i c t C o u r t c h o s e t o b e l i e v e a p p e l l a n t testimony. t h a t the p a r t i e s intended t o value the property a t the time of respondent's witnesses matters Court Mont . and performance. t h e weight exclusively in t o be The given within the case. Harris credibility province of a nonjury , 616 P.2d 1 0 9 9 , 1 1 0 2 , 3 7 S t . R e p . v. the testimony their of are the Harris District (1980), 1696, 1699. W must t h e r e f o r e uphold t h e D i s t r i c t C o u r t ' s i n t e r e p r e t a t i o n of t h e c o n t r a c t t h a t t h e v a l u e of be d e t e r m i n e d a t t h e t i m e o f tne grounds stated above, t h e land is t o r e s p o n d e n t ' s performance. however, we must reverse On the District Court's order to the extent it requires respondent to pay 10% of the value of the land taken as a whole, and we recognize respondent's right under the written agreement to transfer any thirty-two acres of his land or value thereof. In the second issue, respondent contends that there is not substantial evidence to support the District Court's finding of an oral respondent's land. agreement for Even assuming an additional 10% of that suck an agreement existed, respondent claims that it is barred by the statute of frauds and is against public policy. As mentioned earlier, the credibility of witnesses and weight of evidence are matters for determination by the District Court in a nonjury case. The rules governing claims of insufficient evidence are well-established. These rules were set down recently in Harris where we addressed a claim similar to that of respondent: "It is the petitioner's position that there is insufficient evidence to support a finding that an oral agreement existed between the parties. In the resolution of this issue, we are guided by a number of well-established principles adhered to by this Court. The credibility of witnesses and the weight to be given their testimony are matters which are exclusively the province of the District Court in a nonjury case. Corscadden v. Kenney (1977), 175 Mont. 98, 572 P.2d 1234. In examining the sufficiency of the evidence we review the same in a light most favorable to the prevailing party, and we further presume the findings of fact and conclusions of law of the District Court to be correct. Rock Springs Corp. v. Pierre (1980), Mont -, 615 P.2d 206, 37 St.Rep. 1378, decided 1384. only if our review discloses r e o n d e -a E- -E----r- n c e of evidence c o n t r a 9-to the findings and c o n c l u.....................r i c t sions of the Dist Court, will --- disturb the judgment of the we District Court. Morqan and Oswood Const. Co. v. Big Sky of ~ o n t a n a (1976), 171 Mont. 268, 275, 557 P.2d 1017, 1021." 616 P.2d at 1102. (Emphasis supplied.) . a 'The record does not disclose a preponderance of the evidence contrary to the District Court's finding that the oral agreement for an additional 10% of respondent's land existed. The District Court's finding must therefore stand. Respondent contends also that even if one assumes that the parties made such an oral agreement, it is barred by the statute of frauds, as provided in section 28-2-903, MCA. He claims that it is an agreement which by its terms cannot be performed within one year (section 28-2-903(a), MCA), and is an agreement for the sale of real property (section 28-2-903(d), MCA). The District Court accepted appellant's position that the statute of frauds does not bar the oral agreement because appellant fully performed her part of the bargain. Respondent See section 30-11-111, MCA. testified that he believed the written agreement for 10% of his land was to cover the costs of appeal as well as costs at the District Court level. According to respondent, then, appellant's payment of the costs on appeal can be reasonably explained on these grounds as her performance of the written agreement. The District Court did not find that the written agreement covered legal costs for appeal. The record does not disclose any evidence other than respondent's testimony to support his contention. the best position to view credibility, and since preponderance the of the Since the District Court is in witness record testimony and does disclose not evidence contrary to decide a its findings, respondent's contentions of error here lack merit. Since the District Court found that the oral agreement for an additional 10% of Theodore Kartes' land contained the same terms as the written agreement, and there is evidence t o support this s e l e c t another thirty-two finding, Theodore acres to transfer K a r t e s must t o h i s wife or p a y t h e e q u i v a l e n t v a l u e d e t e r m i n e d a t t h e time o f p a y m e n t . In the last D i s t r i c t Court issue, appellant contends e r r e d by d i s m i s s i n g a l l o f the claims her that for l i v i n g expenses. The D i s t r i c t C o u r t g i v e n by respondent found that to appellant t h e promissory for h i s ranch notes and l i v i n g e x p e n s e s had b e e n p a i d and t h a t a n y e x p e n s e s a c c r u i n g p r i o r t o A p r i l 25, 1 9 7 3 , were b a r r e d by t h e f i v e - y e a r l i m i t a t i o n s a s provided s t a t u t e of i n s e c t i o n 27-2-202(2), The MCA. D i s t r i c t C o u r t c o n c l u d e d a s a m a t t e r o f law t h a t a l l o f t h e e v i d e n c e s u b m i t t e d by a p p e l l a n t u n d e r expenses was "speculative, calculations [and] cross-examination as filled being unclear, with her claim for l i v i n g f i l l e d with many improperly in admitted items errors on included," and the e v i d e n c e t h e r e f o r e s h o u l d be d i s a l l o w e d i n i t s e n t i r e t y . Appellant cannot expect t o , i n e s s e n c e , have a l l h e r a c c o u n t s a t t h e c o u r t and t r a n s f e r t h e burden of proof to t h e r e s p o n d e n t t o p r o v e what e v i d e n c e i s n o t e n t i t l e d t o be admitted. party The g e n e r a l a c c e p t e d p r o c e d u r e i s f o r t h e moving t o lay a foundation for e a c h a c c e p t a b l e a c c o u n t and t h e n have t h e a d v e r s e p a r t y proceed w i t h i t s c h a l l e n g e , any. The District Court's disallowance of if appellant's e v i d e n c e f o r l i v i n g e x p e n s e s was p r o p e r . Appellant argues s u b s t a n t i a l evidence expenses, a simple that there challenging a majority of challenge to r e c o v e r y on t h e b a l a n c e of p r o p e r twisted because t h e meaning o f some should evidence. her not was no living prevent Appellant has the s u b s t a n t i a l evidence r u l e . The rule means only that an appellate court will not disturb the trial court's conclusions if there is substantial evidence on the record to support Ballard (1980), - its findings. Mont . See Barrett v. , 622 P.2d 180, 185, 37 St.Rep. 2038, 2042-2043. Therefore, tne affirmed in the judgment of following matters: the District Court is (I) respondent owes appellant 10% of his 320 acres under the written agreement between the parties; ( 2 ) respondent owes appellant an additional 10% of his 320 acres as provided agreement between them; and in the oral (3) appellant's claims for living expenses are dismissed. The judgment of the District Court is reversed wherein it requires respondent pay 20% of the value of his land as a whole. Respondent may choose which sixty-four acres to convey, or he may pay the value of those sixty-four acres as determined at the time of payment. - Justice We concur: , , 8' Ldl- Z - , & I d w ; i Justices

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