                             NO.    93-359
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1994


IN RE THE MARRIAGE OF
JANICE C. HAHN, f/k/a
Janice Cladouhos,
           Petitioner and Respondent,
     and
THOMAS P. CLAWUHOS,
           Respondent and Appellant.




APPEAL FROM:    District Court of the First Judicial District,
                In and for the County of Lewis and Clark,
                The Honorable Thomas C. Honzel, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
                David N. Hull, Attorney at Law,
                Helena, Montana
           For Respondent:
                Jacqueline Terrell Lenmark, Keller, Reynolds,
                Drake, Johnson & Gillespie, Helena, Montana


                             Submitted on Briefs:     November 4, 1993
                                             Decided: February 8, 1994
Justice William E. Hunt, Sr., delivered the opinion of the Court.
       This is an appeal from the First Judicial District, Lewis and
Clark County, regarding the enforcement of a dissolution agreement
entered into by respondent Janice C. Hahn, f/k/a Janice Cladouhos,
and appellant Thomas P. Cladouhos. The District Court found that
under the terms of the dissolution agreement Thomas was obligated
to pay Janice the maintenance payments which were part of the
property settlement. The District Court denied Thomas's motion to
dismiss Janice's motion to enforce the property settlement based on
the doctrine of laches, and also denied both parties their attorney
fees.       Thomas appeals from the order of the District Court.
       We affirm.
       We restate the issues as follows:
       1.      Did the District Court err when it denied Thomas's motion
to dismiss Janice's pleading to enforce the maintenance provision,
based on the doctrine of laches?
       2.      Did the District Court err when it found that the
maintenance payments were part of the property settlement that did
not terminate upon Janice's remarriage pursuant to 5       40-4-208(4),

MCA?
       3.      Did the District Court err by failing to award Thomas his
reasonable costs and attorney fees incurred in enforcing the
court's prior order?
       Thomas and Janice were married in June 1965.        Two children
were born to the couple, with one minor child living at home at the
time of the dissolution in 1990.         The couple had a hostile and
difficult period of negotiations before agreeing to the custody,
support, and property settlement agreement which was incorporated
into the decree of dissolution on October 2, 1990.
     The agreement provides that the couple would pay specific
amounts to each other as a distribution of the marital estate
property.    Paragraph 8 of the agreement provides that the family
home be awarded to Janice with the requirement that Janice
compensate Thomas for half of the estimated realtor fee of $4200 if
Janice did not sell the family home within two years of the
agreement.    Paragraph 18(a) provides that Thomas pay to Janice
monthly payments of $650 for 15 months, beginning November 1990
"for her own support, care and maintenance."   Also, paragraph 18 (b)
provides that the funds in 18(a) are in the nature of a property
settlement. Paragraph 18 (b) adds that the payments under 18(a) are
considered maintenance for tax purposes.
     On July 25, 1991, Janice remarried and Thomas immediately
stopped making the maintenance payments, claiming that maintenance
payments automatically discontinue upon her remarriage pursuant to
3 40-4-208(4), MCA.   Thomas demanded that Janice pay the required
realtor fee of $4200 pursuant to paragraph 8 of the agreement
because she did not sell the family home within two years of the
agreement.    Janice tried to resolve the matter by offering to
offset the delinquent maintenance payments against the realtor fee.
Thomas refused the offer.
     On December 15, 1992, Thomas filed a motion with the District
Court requesting that it hold    an ice in contempt for failure to

                                 3
comply with the agreement and order her to pay him $4200 for half
the realtor fees.   Thomas also requested costs and attorney fees
allowed by the agreement.
     On January 15, 1993, Janice filed a cross-motion for contempt
requesting the court hold Thomas in contempt for failure to pay
maintenance as provided by the agreement, claiming that he owed her
six property settlement payments totaling $3900.   On February 16,
1993, Thomas filed a motion to dismiss Janice's motion based on the

doctrine of laches, that Janice, without adequate explanation,
failed to timely pursue court action to enforce these payments,
rendering the enforcement of her asserted rights inequitable.
     On April 15, 1993, the matter was heard by the District Court
with both parties offering testimony and evidence.    On April 16,
1993, the court issued its findings of fact, conclusions of law,

and order and memorandum.   The order denied both parties1 motions
to hold each other in contempt, and denied Thomas's motion to
dismiss Janice's motion based on laches. The court found that the
maintenance payments were part of the property settlement, and that
Thomas was delinquent on five payments and owed Janice $3250, and
Janice owed Thomas $4200 for half the realtor fee.      Thomas was
entitled to $950, which was the difference between the $4200 Janice
owed him, and the $3250 he owed Janice.    The court also ordered
that both parties pay their own costs and attorney fees.
     On May 3, 1993, Thomas filed a motion to reconsider, which the
court denied. Judgment was entered against Thomas, and he appeals.
                               ISSUE I
        Did the District Court err when it denied Thomas's motion to
dismiss Janice's pleading to enforce the maintenance provision,
based on the doctrine of laches?
       Section 1-3-218, MCA, provides that It[t]he law protects the
vigilant before those who sleep on their rights."        Laches is a
concept of equity that can apply when a person is negligent in
asserting a right, and can apply where there has been an
unexplained delay of such duration or character as to render the
enforcement of the asserted rights inequitable.          Fillner v.
Richland (1991), 247 Mont. 285, 290, 806 P.2d 537, 540. Each case
must be determined on its own unique facts.    Fillner, 806 P.2d at
540.
       This case involves a written dissolution agreement.   Section
40-4-201(5), MCA, provides that marital or property settlement
agreements are enforceable as contracts. See also, In Re Marriage
of McKeon (l992), 252 Mont. 15, 18-19, 826 P.2d 537, 540.        The
statute of limitations to enforce a written contract is eight
years. Section 27-2-202(1), MCA. When a claim is filed within the
time limit set by the analogous statute, the defendant bears the
burden to show that extraordinary circumstances exist which require
the application of laches.    McGregor v. Mommer (1986), 220 Mont.
98, 107, 714 P.2d 536, 542.
       Here, Janice filed her claim to enforce the maintenance
payments 15 months after Thomas stopped making the payments.    Her
filing was within the eight year statutory time limit.    Therefore,
Thomas bears the burden to show that extraordinary circumstances
exist which require the application of laches.
     Thomas     argues     that    the   maintenance    payments     to   Janice
automatically terminated upon Janice's remarriage.             Janice knew his
position and she sat on her rights for 15 months and did not pursue
court action to enforce the payments until January 15, 1993. He
asserts that the District Court erred when              found that Janice had
a reasonable explanation for the delay, and                 further, it was
inequitable for the court to uphold her claim.
     Thomas failed to provide facts to prove that Janice's delay
was unexplained.      The District Court examined the circumstances
surrounding the delay and in its findings stated the following:
     13. When Tom ceased making the maintenance payments, Jan
     wrote Tom regarding this fact. She did not, however,
     commence court action. She testified that she did not
     start court action because it could be expensive; that
     their daughter Camille was having problems and that she
     thought the friction between the two parents was damaging
     their daughter; and that she did not want to damage their
     daughter further.
     The District Court's findings are supported by the record.
The record shows that when Thomas stopped making payments, the
couple was still involved in hostile conversations concerning
custody and visitation.           Additionally, the couple's daughter was
troubled     about   the   friction between      them    and   was    seeing   a
counselor.     The couple attended counseling sessions attempting to
recover from the misunderstandings created from the dissolution
process.     Janice attempted to reconcile the disagreements, hoping
to avoid litigation which would increase the friction between them.
the terms.   Section 28-2-905(1), MCA.   The District Court, in its
findings, considered the following correspondence proposed by
Janice's counsel before the final agreement:
    Jan will agree to accept $650.00 a month maintenance for
    a period of 15 months. Additionally, she will agree that
    the maintenance will terminate upon her death or
    remarriage. Based on my advice, however, she will not
    agree that the maintenance be modifiable. The period of
    time over which Tom will be paying maintenance is only
    slightly more than a year. It is part of the property
    settlement that the parties are negotiating. In view of
    the fact that Jan is willing to reduce her request for
    maintenance from five years to 15 months, it seems a fair
    compromise on Tom's part to agree that it not be
    modifiable for those 15 months, especially in view of the
    fact that he is receiving a significant tax benefit as a
    result of characterizing this portion of the monthly
    support payments as maintenance.
     The District Court, also considered in its findings, the
following response from Thomas's counsel:
     On August 16, 1990, counsel for Tom responded to Jan's
     proposal. With respect to the provision on maintenance
     he stated: "Tom agrees with this provision as stated in
     your August 15th letter."
     The District Court rejected Thomas's argument that the letters
prove that the payments are maintenance which were terminated by
5 40-4-208(4), MCA.   The court looked to the final agreement for
the contract terms.     The court, in its findings, quoted the
following paragraphs of the agreement:
    18. MAINTENANCE AND DISTRIBUTION OF ASSETS: (a) THOMAS
    shall pay to JANICE for 15 months commencing on the 1st
    day of [the] month following the execution of this
    Agreement, the sum of $650.00 monthly for her own
    support, care, and maintenance.
    (b) The sums agreed to in paragraph 18(a) are in the
    nature of a property settlement and are not modifiable by
    any subsequent court order following the dissolution of
    marriage, except on express written acknowledged consent
     of the parties. The parties further agree, however, that
     the payments under subparagraph 18(a) are to be
     considered maintenance for tax purposes.
Also, paragraph 24 of the agreement in pertinent part states:
     Except as to provisions involving child custody, support,
     and visitation, this Agreement may not be modified by any
     subsequent court order following the dissolution of
     marriage, except on express written acknowledge[d]
     consent of the parties.
     The District Court found that 5 40-4-208(4), MCA, applies to
maintenance payments and does not apply in this case because the
agreement, in paragraph    18(b),   specifically states that the
maintenance payments "are in the nature of a property settlementn1
that cannot be modified without the couplens consent.     Further,
although the parties agreed that the payments would be considered
maintenance for tax purposes, that compromise does not negate the
clear language in 18(b) that the payments are part of the property
settlement.
     The District Court    found    that the language concerning
termination of maintenance was not included in the final agreement,
and that the final agreement controls.
     We affirm the District Court's finding that the payments were
a part of the property settlement to Janice that did not terminate
upon her remarriage.
                             ISSUE 3

     Did the District Court err by failing to award Thomas his
reasonable costs and attorney fees incurred in enforcing the
court's prior order?
pay Thomas the realtor fee, and directed Thomas to pay Janice the
unpaid property settlement payments that he owed her. Finding that
under these circumstances neither party was totally successful, the
District Court ordered that each party should pay its own attorney
fees and costs.   We affirm the District Court on this issue.
     Affinued.



                                        Justice

We concur:
                                        February 8, 1994

                                  CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:


DAVID N. HULL
Attorney at Law
P.O. Box 534
Helena. MT 59624

JACQUELINE T. LENMARK
Keller, Reynolds, Drake, Johnson & Gillespie, P.C.
38 S. Last Chance Gulch
Helena, MT 59601


                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
                                                     STATE OF MONTANA
