MARRIAGE OF JONES
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No. 85-60 IN THE SUPREME COURT OF THE STATE OF MONTANA 1985 IN RE THE I'JARRIAGE OF VULLOY B JONES, . Petitioner and Respondent, and LARRY JONES, Petitioner and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable James B. Wheelis, Judge presiding. COUNSEL OF RECORD: For Appellant: Ellingson & Moe; Jon E. Ellingson, Missoula, Montana For Respondent: Terry A. Wallace, Missoula, Montana -- - - Submitted on Briefs: July 25, 1985 Decided: November 19, 1985 Filed : , ~iap' ? ~-4+&+&& */ Clerk Mr. J u s t i c e 1,. C. Gulbrandson d e l i v e r e d t h e Opinion o f the Court. Larry Jones District Court $4,851.67 as reasonable appeals an directing back to him payments attorney's order of fees. of pay the his Missoula ex-wife, maintenance and County Vulloy, $2,146 The i s s u e s o n a p p e a l a r e : as (1) w h e t h e r t h e D i s t r i c t C o u r t e r r e d i n r u l i n g t h a t h u s b a n d owed w i f e m a i n t e n a n c e u p o n h i s c e s s a t i o n of c h i l d s u p p o r t p a y m e n t s to her; (2) whether I n August for District Court. the child the to only and i n granting wife her 1979, L a r r y and V u l l o y J o n e s dissolution of marriage in filed a Missoula joint County A f i n a l d e c r e e d i s s o l v i n g t h e i r m a r r i a g e was final husband the in t o husband; promissory note As decree t h e J o n ~ s y o i n tp e t i t i o n h a d granted full p a r t i e s 1 two minor c h i l d r e n t o t h e wife. orders erred Affirmed i n p a r t and remanded. e n t e r e d t h a t same m o n t h . requested, Court District District Court e r r e d the attorney's fees. petition the enforcing wife's partially (3) whether (appellant) wife to (respondent). pay In custody of the The f i n a l d e c r e e $150 p e r the month p e r paragraph which immediately follows t h a t provision, t h e decree s t a t e s ; Upon t e r m i n a t i o n of t h e c h i l d s u p p o r t o b l i g a t i o n , LARRY E. JONES s h a l l p a y t o VULLOY B. JONES t h e sum o f $ 1 0 0 . 0 0 p e r month, a s and f o r h e r maintenance, u n t i l her remarriage o r death. These p r o v i s i o n s o f t h e f i n a l decree a l s o m i r r o r t h e language of t h e Jones1 joint petition f o r dissolution. Appellant paid u n t i l A p r i l 1980. the $150 p e r month p e r c h i l d payments I n e a r l y 1 9 8 0 , r e s p o n d e n t d e c i d e d t o move t o C a l i f o r n i a and s h e approached a p p e l l a n t f o r a $1,000 l o a n . A p p e l l a n t a g r e e d t o l o a n r e s p o n d e n t $1,000 i f s h e would s i g n a promissory n o t e i n h i s f a v o r f o r $2,000. Appellant testified that he asked respondent to sign the $2,000 promissory note because respondent owed him well over $1,000 prior to the $1,000 loan. Appellant testified that respondent owed him over $1,000 (before the loan) for money he had given her in addition to the child support payments, for a pickup truck he loaned her to use, for a trailer hitch he put on her car, and for her parking tickets he had paid. Respondent testified that appellant told her he did not expect her to pay the note but that he needed the note for income tax purposes. She also testified that appellant had loaned her a pickup truck for her use. Respondent denied or did not remember that appellant had given her other money or support. Respondent appellant then signed gave the her $2,000 $1,000. promissory The note interest and was due on February 13, 1981. note and carried 14% Respondent then moved to California in April 1980. Upon respondent's move, the parties' two minor children went to live with their father. Appellant raised and sup- ported the children beginning in April 1980. Appellant did not make the child support payments to his ex-wife that month or thereafter. Appellant did not commence maintenance pay- ments to his ex-wife until forced to do so by this lawsuit. In August 1983, enforcement of decree. respondent filed a petition for Respondent alleged that appellant's child support obligations had ended in April 1980 and that, under the terms of the final decree, appellant owed her maintenance from that time. the petition and a Appellant filed a response to counterclaim. As his counterclaim, appellant alleged that respondent had not paid the promissory note, which was due. Respondent answered the counterclaim admitting that she had not made any payments on the note but alleging that she had not received sufficient consideration for the $2,000 note. She further alleged that appellant fraudulently induced her to sign the note. In October 1984, the District Court issued its findings of fact, conclusions of law and order. The District Court found that, under the final decree, respondent was to receive maintenance of $100 each month upon appellant's child support obligation. termination of The court found that appellant's child support obligation terminated in February 1980. The court further found that appellant had made no maintenance payments. The court concluded that appellant owed respondent $6,505, including interest, for maintenance arrearages. The court found that respondent was entitled to recover her reasonable attorney's fees on this action. The court ruled that one-third of the recovery of $6,505 (or $2,146) was a reasonable attorney's fee. Lastly, the court found that respondent owed appellant $1,653.33, including interest, on the loan made to her by appellant. The court offset this amount against what appellant owed respondent in maintenance arrearages. The first issue is whether the District Court erred in ruling that appellant owed respondent maintenance upon his cessation of child support payments to her. review for that decision is set forth The standard of in Rule M.R.Civ.P; Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. 52(a), This Court's function is to review the district court's findings in light of the record and make certain the find-ings are not clearly erroneous. Carr v. Carr (Mont. 1983) , 667 P.2d 425, 40 St.Rep. 1263; Peckenpaugh v. Peckenpaugh (Mont. 1982), 655 P.2d 144, 39 St.Rep. 2132. The final decree provided respondent maintenance support upon that appellant would pay the termination of his child Appel-lant contends that obligation. this child support obligation (the termination of which would trigger his maintenance obligation) refers to his general duty to support and raise his children. Torma v. Torma Appellant correctly cites (1982), 198 Mont. Chrestenson v. Chrestenson 161, 645 P.2d (1979), 180 Mont. 395; and 96, 589 P.2d 148, for the proposition that a parent's general obligation to support his child ends upon that child's emancipation at age eighteen. MCA. See also S S 40-4-208 ( 5 ) , 41-1-101, 40-6-211, Appellant did meet this general obligation of support while his children lived with him (and presumably until they were eighteen). Therefore, appellant asserts that the child support obligation ended upon his youngest child's eighteenth birthday and that his maintenance obligation arose on that date. The resolution of this issue hinges on whether the child support obligation referred to in the final decree is that general obligation cited in Torma and Chrestenson. In effect, the District Court found that the child support obligation (as referred to in the final decree) was the specific, monthly payments to be made by the appellant and not appellant appellant's stopped obligation began. the general monthly obligation. payments, This conclusion Hence, his once maintenance is supported by the fact that the reference in the final decree to the termination of the child support obligation followed directly after the court's order of monthly child support payments. Thus, it is inferable that the disputed child support obligation (the termination of which triggered the maintenance payments) was that obligation set up in the immediately preceding sentence. More importantly, the court, in making interpreting its own final decree. invitation to second guess interpretation of its own decree. this ruling, was We decline appellant s the District Court's We hold that the District Court's ruling, that appellant's maintenance obligation began when he stopped making monthly child support payments to respondent, was not clearly erroneous. The second issue is whether the District Court erred in only partially appellant. enforcing respondent's promissory note to In 1980, respondent signed a $2,000 promissory note, with 14% interest, in appellant's favor. The lower court $1,653.33, held that respondent including interest, up owed appellant through October 1984. Respondent testified that the only other consideration she received for the note, besides the $1,000 loan, was the use of a pick-up truck. Thus, there was evidence to support the lower court's decision to only partially enforce the note. The lower court's ruling on this issue was not clearly erroneous and must be upheld. The third issue is whether the District Court erred in awarding respondent her attorney's fees. Appellant contends that to there was insufficient evidence establish the reasonableness of the amount of the award and the need for the award. made Appellant also complains that the District Court no written findings as to the need Appellant cites the oft-repeated rule, " for the award. . . . that written findings are required to establish both the need reasonableness of an award of attorney's fees. " and See, e.g., Duffey v. Duffey (Mont. 1981), 631 P.2d 697, 699, 38 St.Rep. 1105, 1107. There may be sufficient evidence in the record to find that the wife had a genuine need for the award of attorney's fees. She testified that she lost her job upon returning to California after what was apparently the preliminary hearing in this case. She also testified that she told appellant, prior to executing the promissory note, that there was no way she could repay him. findings of However, the District Court made no fact as to the wife's need for an award of attorney's fees. In Duffey, the trial court failed to make essential written findings establishing both the need reasonableness of an award of attorney's fees. and the We held that this failure required that we vacate the award of attorney's fees, even though only $200 was awarded. Accordingly, we vacate the trial court's award of attorney's fees in the instant case. Furthermore, we note that the District Court made findings as to the reasonableness of the amount of the award of attorney1 s fees. The court found that a reasonable attorney's fee for the recovery of $6,505 is one third of that amount. The court reasoned that one third is a standard attorney's fee for the recovery of an indebtedness. On June 6 , 1985, this Court filed its new Rules of Professional Relationship. (a): Conduct relating to the Client-Lawyer Rule 1.5, entitled Fees, states at section lawyer shall arrangement for, not enter charge, or A into an collect: (1) a n y f e e i n a d o m e s t i c r e l a t i o n s m a t t e r , t h e payment o r amount o f w h i c h i s c o n t i n g e n t upon t h e s e c u r i n g o f a d i v o r c e or upon the amount of alimony or support ... There contingent attorney, i s no evidence fee but agreement because in the between the court r e c o r d t h a t t h e r e was a the may respondent have and her considered the amount r e c o v e r e d a s t h e sole b a s i s f o r t h e a w a r d , a n d b e c a u s e of the lack vacate the of f i n d i n g s a s t o t h e need award reconsideration by of the attorney's trial appropriate findings of f a c t . f o r t h e award, fees court and and the remand entry we for of
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