                            No.     89-480
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1990


IN RE THE MARRIAGE OF
LOIS A. MANNIX, n/k/a   LOIS -AUSTIN,
                Petitioner and Respondent,
          and
RALPH E. MANNIX, JR.,
                Petitioner and Appellant.



APPEAL FROM:    District Court of the Third Judicial District,
                In and for the County of Powell,
                The Honorable John Henson, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
                Byron W. Boggs, Missoula, Montana
          For Respondent:
                Kerry N. Newcomer; Geiszler    &   Newcomer, Missoula,
                Montana



                                  submitted on Briefs:   Feb. 15, 1990
                                             ~ecided: March 27 , 1990
Filed:



                            f     Clerk
Justice John C. Sheehy delivered the Opinion of the Court.


     Appellant Ralph E. Mannix Jr. (Mannix) appeals the order
issued by the Fourth Judicial ~istrict Court, Missoula County,
granting ~ o i s Mannix, now Lois Austin ma us tin), interest on the
               A.
sum of $5,050.00. The District Court ordered Mannix to pay Austin
interest from January 20, 1982, to August 8, 1989, on a $5,050.00
principal obligation created by the parties1 Property Settlement
and Custody Agreement.         Mannix now appeals the District Court
order. We affirm.
     ~annixlsissue on appeal can be summarized as follows:
      id the ~ i s t r i c tCourt err by awarding us tin interest on a
debt created by the parties! property settlement agreement?
     Austin and p an nix were married on November 28, 1964. On
August 20, 1981they were granted a legal separation. The parties
entered into a Property Settlement and Custody Agreement on January
20, 1982, as part of a Joint Petition for Dissolution. On January
21, 1982, the District Court issued a final decree, incorporating
the parties1 Property Settlement and Custody Agreement.             The
property settlement provided that ann nix pay $5,050.00 to Austin
for her interest in a Deer Lodge residence. The payment was due
upon sale of the property.
     After the dissolution of the marriage, Mannix never listed the
property for sale or made the $5,050.00 payment to Austin.
~ccordingto the record, Mannix allegedly either rented or loaned
the premises to relatives and made no attempt to sell it. ~espite
demands by Austin for payment, ann nix refused to make the payment
provided by the Agreement and Decree to ust tin.
     In September of 1988, ust tin filed a petition with the
District Court, in which she requested, among otherthings, payment
of the $5,050.00, recovery of interest on that amount from January
20, 1982 and her attorney fees.           ann nix responded denying any
obligation to pay the principal sum. He claimed that since the
property had never been listed for sale and that payment was due
upon sale, the $5,050.00 payment was not due us tin.
       Subsequently, Austin served Mannix with a number of
interrogatories and requests for production to establish Mannix1s
ability to pay the $5,050.00 during the years after the dissolution
of the marriage. Although ann nix admitted that the residence had
never been offered for sale, he refused to answer m us tin's other
discovery requests and refused to comply with orders compelling
discovery. On March 16, 1989, the ~istrict   Court ordered immediate
payment of $5,050.00 due Austin, and awarded Austin her attorney's
fees and costs. On April 11, 1989, Mannix paid the $5,050.00 and
attorney's fees as ordered by the District Court.
       The ~istrict Court also ordered a hearing to determine, among
other things, whether ust tin was entitled to interest on the
$5,050.00 and on what date such interest would commence if
allowable. The District Court found, on August 8, 1989, that
"Ralph E. Mannix Jr., shall pay to ~ o i s ust tin interest on
$5,050.00 at the rate of 10% per annum from January 20, 1982, the
original date of judgment, to the date of this order . . . . I I
 ann nix now appeals the District Court's August 8th order awarding
interest to Austin.
                                  I
       Did the District Court err by awarding Austin interest on a
debt created by the parties' property settlement agreement?
       An obligation arises either from the contract of the parties
or by operation of law. Section 28-1-102, MCA. In this case, the
obligation arose under contract, i.e., the partiest Property
Settlement Agreement. The contract clause in the ~greement at
issue in this case stated the following:
       1.   It is agreed that Ralph E. Mannix, Jr., shall
       purchase the interest of Lois A. Mannix [Austin] in said
       property for the sum of FIVE THOUSAND FIFTY and no/100
       DOLLARS ($5,050.00). Said payment shall be made upon
       sale of the house. [Emphasis added.]
     2.   Should any action be commenced to enforce, modify or
     interpret any provision contained herein, the Court, as
     a cost of suit, shall award a reasonable attorney's fee
     to the successful party.
     This language requires Mannix to purchase Austin's interest
in the Deer Lodge residence for $5,050.00.     Payment, according to
the Agreement was to be delayed until the sale of the house.
Austin contends the Agreement clearly contemplated the residence
would be offered for sale; however, the obligation and the amount
of money due Austin were fixed at the time of the Agreement.         This
obligation was incorporated as part of the Final Decree dissolving
the parties' marriage.
     In contrast, Mannix contends Austin's right to receive the
$5,050.00 occurred upon the sale of the house.     We disagree with
Mannix, and adopt the District Court finding that Austin's right
to receive the $5,050.00 occurred on January 21, 1982, the date of
the Final Decree. The District Court's Decree of January 21, 1982,
vested in Austin the right to receive payment of the $5,050.00.
Even though the payment was to be paid in the future, i.e., upon
the sale of the house, the right to that money vested on the day
the court entered the Final Decree.
     Clearly Mannix is obligated to pay interest on the $5,050.00
he owes Austin.   Rule 54(a), M.R.Civ.P.   states "A judgment is the
final determination of the rights of the parties in an action or
proceeding and as used in these rules includes a decree   ..   .It   The
1982 Decree in this case was the final determination of the rights
of the parties, and therefore a judgment.    Rule 54(a), M.R.Civ.P.
Under the Decree or Judgment, Mannix became obligated to pay Austin
$5,050.00 in 1982.   As we have stated in In re the Marriage of
Knudson (1981), 191 Mont. 204, 208, 622 P.2d 1025, 1027, once a
person is liable for a money judgment, and payment is not made, the
person entitled to the judgment is further entitled to a fair rate
of interest. According to 5 25-9-205, MCA, interest is payable at
a rate of 10% per annum.       Section 25-9-205, MCA, applies to
judgments in marital dissolution cases, such as this one, where
the decree is silent about interest. In re the Marriage of Martens
(1981), 196 Mont. 71, 76, 637 P.2d 523, 526; Williams v. Budke
(1980), 186 Mont. 71, 79, 606 P.2d 515, 519. Accordingly, we adopt
the District Court finding that Mannix owes Austin interest on the
$5,050.00 obligation, at a rate of 10% per annum.     However, the
interest awarded should be paid for the period from January 20,
1982 through April 11, 1989, instead of August 8, 1989, as ordered
by the District Court.
     Despite this clear obligation to pay interest to Austin,
Mannix argues that Austin's right to receive the $5,050.00 did not
vest on a I'particular dayn as specified under the statute for
prejudgment interest.    Section 27-1-211, MCA.   Section 27-1-211,
MCA, provides :
     Risht to interest. Every person who is entitled to
     recover damages certain or capable of being made certain
     by calculation and the right to recover which is vested
     in him upon a particular day is entitled to recovery
     interest and thereon from that day  ...
     Mannix's reliance on 5 27-1-211, MCA, is unappropriate in this
case, since the issue here concerns "post judgmentn interest,
rather than prejudgment interest under 5 27-1-211, MCA.
     Accordingly, we affirm the District Court's order, and award
Austin attorney's fees and costs incurred in this appeal to be
fixed by the District Court.




We Concur:




         Justices

                      /
