                                            No.    81-149

                  I N T E SUPREME COURT O THE STATE O M N A A
                       H                 F           F OTN

                                                   1981




KAREN J . DELANEY,

                  P l a i n t i f f and R e s p o n d e n t ,

           -vs-

ROBERT L. DELANEY      ,
                  Defendant and A p p e l l a n t .




Appeal from:      D i s t r i c t Court o f t h e Fourth J u d i c i a l D i s t r i c t ,
                  I n and f o r t h e County o f Y i s s o u l a , The H o n o r a b l e
                  J a c k L. G r e e n , J u d g e p r e s i d i n g .


Counsel o f Record:

         F o r A~pellant:

                   Mulroney, Delaney               s   Dalby, Missoula            Montana


         F o r Respondent :

                  L e a p h a r t Law F i r m , H e l e n a , Montana




                                            S u b m i t t e d on b r i e f s :   August 2 1 , 1 9 8 1

                                                                Decided:         November 9 , 1 9 8 1



Filed:
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

       Respondent Karen J. Delaney brought this action in the
Missoula County District Court, Fourth Judicial District, to
collect $15,000 from her former husband, Robert L. Delaney,
in satisfaction of delinquent payments for support and
maintenance for the years 1976, 1977 and 1978.    A nonjury
trial was held on August 14, 1980.    On December 18, the
District Court made and adopted findings of fact and conclusions
of law, and on January 6, 1981, judgment was entered in
favor of the wife in the amount of $15,000, together with
interest.     From that judgment, and from the order of January
30 denying husband's motion to amend the findings of fact
and conclusions of law, the husband now appeals.
       This Court is presented two questions for review:
       1)   Did the District Court err by finding that sums
totaling $15,546.11 in excess of the decree of dissolution
paid by the husband to the wife were gifts?
       2)   Did the District Court err by finding that the
husband was not entitled to offset those sums against the
$15,000 required by the decree?
       We find that neither finding was in error and affirm
the judgment of the District Court.
       The parties were divorced on September 28, 1973.     The
marital and property settlement agreement, dated September
27, provided in addition to all other requirements, that the
husband pay the wife $5,000 per year for ten years, said
payments to be made on November 1 of each year.
       After complying with these payments for the first three
years, husband failed to make payments for the years 1976,
1977    and 1978.   In lieu of the 1976 payment, husband
executed a promissory note in the amount of $5,000, payable
on or before March 31, 1977.    That note was canceled by
the District Court and made part of its judgment.    Another
note, in the amount of $10,000, dated April 27, 1978, was
offered to the wife to cover the 1977 payment and the November
1976 note but she did not accept it.
     The 1978 payment came due on November 1, and when it
was not paid, Karen Delaney filed her complaint, dated
November 21, 1978.
     Robert Delaney contends that certain sums paid in
excess of the decree, amounting to $15,546.11, should be
treated as advances on the annual $5,000 payments.    These
sums were part of a program begun in 1974 whereby the husband
increased his support payments for the two children.    Upon
the submission of a budget, he made payments of $1,500 per
quarter which were later reduced, as of March 2, 1975, to
$1,050 per quarter, and then as of February 1977, changed to
$1,000 per month.
     In accord with an oral understanding of the parties,
husband also paid $5,415 from October 23, 1973 through
August 27, 1974 for psychiatric care of the wife.
     In total, at the commencement of this action, husband
was obligated by the decree to pay the wife $67,800.     At
that time, he had actually paid her $83,346.11, an excess of
$15,546.11.    The District Court found that the excess payments
were intended as gifts, and we agree.
     Husband relies on the statute defining gift, section
70-3-101, MCA, which states that the transfer must be made
voluntarily.    He contends that constant harassing, phone
calls, and threats to withhold visitation rights were responsible
for the extra payments.    These factors no doubt had an
effect, but they do not overcome the substantial evidence
that the payments were intended as gifts.     As we stated in
Myhre v. Myhre (1976), 170 Mont. 410, 416, 554 P.2d 276,
279, the true expert on donative intent is the donor.
     A letter to the wife from the husband's attorney, dated
October 23, 1974 (plaintiff's exhibit E ) , states that "this
$1500.00 payment is simply being made by Bob on his own
initiative."
     Another letter from the husband himself, dated December
2, 1974 (plaintiff's exhibit   C),   states that "this is merely
intended as a gift to the children."
     Another such letter from the same exhibit, dated
January 30, 1977, says that "this will be the only payment
you will receive hereafter with the exception of the $5,000
due yearly in November."   Later he stated it "is in no way
intended to breach or amend the original court decree.      I
exceed the decree only for my children's benefit and will
continue to pay a larger sum only in so far (sic) as I can
reasonably afford to do so."
     These clearly   demonstrate that the excess payments
were intended as gifts, and husband is not entitled to
offset them against the amount owed under the decree of
dissolution.    See Hadford v. Hadford (1981), - Ilnt . -
                                                  lo     I


633 P.2d 1181, 1186, 38 St.Rep. 1308, 1314-1315; Williams v.
Budke (1980),             ,
                   Mont. - 606 P.2d 515, 517, 37 St.Rep.
228, 230.
     We will not set aside the findings of fact of the trial
court unless they are clearly erroneous.     Rule 52(a), M.R.Civ.P.
     Affirmed.


                                                 Justice
We Concur:
