                                                                                               April 10 2012


                                           DA 11-0237

                   IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2012 MT 80N



IN RE THE MARRIAGE OF:
DANIEL KELLEHER,

               Petitioner and Appellant,

         and

AMBER KELLEHER,

               Respondent, Appellee and Cross-Appellant.



APPEAL FROM:            District Court of the Eleventh Judicial District,
                        In and For the County of Flathead, Cause No. DR 07-499B
                        Honorable Katherine R. Curtis, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                        Sean S. Frampton, Morrison & Frampton, PLLP, Whitefish, Montana
                        Mary S. Obermiller, Obermiller Law Firm, Kalispell, Montana

                 For Appellee:

                        P. Mars Scott, Thorin A. Geist, P. Mars Scott Law Offices, Missoula,
                        Montana


                                                         Submitted on Briefs: March 14, 2012
                                                                    Decided: April 10, 2012




Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not serve

as precedent. Its case title, cause number, and disposition shall be included in this Court’s

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2     Daniel and Amber Kelleher (Daniel and Amber, respectively) were married in 1996.

During their marriage, they constructed a home and several outbuildings near Kalispell,

Montana, known as the Avalanche Ranch (“AR”). AR cost approximately $14 million to

build; with approximately $2 million borrowed. In 2007, their marriage ended.

¶3     Daniel and Amber entered into a Marital Property Settlement Agreement (the

“Agreement”) on March 10, 2008. The Agreement included a provision that neither party

was entitled to spousal maintenance. Amber and Daniel also entered into several separate

agreements, also on March 10, 2008, which were attached to the Agreement (collectively, the

Agreement and all the attached documents will be referred to as the “PSA”). One such

agreement provided that Amber and Daniel would share equally in the net proceeds of the

sale of AR. Another provided that Daniel would loan Amber $7500 per month as an

advance on Amber’s portion of the net proceeds of the sale of AR.

¶4     Also attached to the Agreement were trust formation documents for the Avalanche

Ranch Trust (“ART”). The ART’s sole purpose was to “market and sell” AR. Daniel was

initially named Trustee of the ART, and was to “use and occupy the property” and to pay



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certain expenses. Expenses for AR were approximately $21,000 per month, including the

mortgage, taxes, insurance, and maintenance.

¶5     When the PSA was executed, there was a buy-sell agreement in place for AR with a

purchase price of $15.5 million. However, the sale did not close. At some point, Amber

filed a lis pendens against AR to secure her share of the proceeds of any eventual sale.

Finally, in 2009, Daniel accepted an offer of $3 million for AR. Amber refused to remove

her lis pendens and the sale did not close.1

¶6     Daniel then petitioned the District Court, under M. R. Civ. P. 60(b), to release him

from his obligation to pay $7500 per month to Amber and $21,000 per month on AR.

Amber also filed a motion seeking reimbursement from Daniel for $155,526 in her living

expenses allegedly owed under the PSA, and her attorneys’ fees. At a hearing on Daniel’s

motion, Amber was substituted as Trustee of the ART and the District Court denied Daniel’s

request to be relieved from the $7500 payments to Amber. It took under advisement

Daniel’s request to be relieved of the AR expenses. Ten months later, the District Court

issued an order denying both Daniel’s and Amber’s motions. Daniel appeals the denial of

his M. R. Civ. P. 60(b) motion. Amber appeals the denial of her motions for living expenses

and attorneys’ fees.

¶7     Generally, we review the denial of a Rule 60(b) motion for an abuse of discretion.

Essex Ins. Co. v. Moose’s Saloon, Inc., 2007 MT 202, ¶ 16, 338 Mont. 423, 166 P.3d 451.

Construction and interpretation of settlement agreements is a question of law. In re



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Marriage of Szafryk, 2010 MT 90, ¶ 23, 356 Mont. 141, 232 P.3d 361. We review a district

court’s conclusions of law for correctness. In re Marriage of Caras, 2012 MT 25, ¶ 18, 364

Mont. 32, 270 P.3d 48.

¶8       After reviewing the record, we have determined to decide this case pursuant to

Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for noncitable

memorandum opinions. The issue Daniel appeals is one of judicial discretion and there

clearly was not an abuse of discretion. The issues Amber appeals are legal and are controlled

by settled Montana law, which the District Court correctly interpreted. The District Court

enforced the express terms of Daniel and Amber’s PSA, which precluded modification by

the court. See Cortese v. Cortese, 2008 MT 28, ¶ 9, 341 Mont. 287, 176 P.3d 1064. We

disagree with Daniel’s characterization that the District Court’s orders “forever ensured no

sale [of AR] would ever take place.” The District Court’s refusal to award living expenses to

Amber was consistent with the PSA, which stated neither party would receive maintenance.

The PSA’s provision that Daniel was to meet Amber’s day-to-day living expenses was

carried out through Daniel’s advance payments to Amber of $7500 per month until AR was

sold. Finally, the District Court’s denial of Amber’s attorneys’ fees, pursuant to the terms of

the PSA, is correct.

¶9       Affirmed.

                                                                /S/ MICHAEL E WHEAT

We Concur:
1
 Daniel and the ART are now being sued by the potential buyer. The potential buyer has also filed a lis pendens against
AR.
                                                          4
/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS
/S/ BETH BAKER




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