                                       NO.   12083

         I N THE SUPREME C U T O THE STATE O M N A A
                          OR    F           F OTN

                                          1972



R T A. MOVIUS ,
 UH

                               P l a i n t i f f and Appellant,

       -vs   -
ARTHUR J. MOVIUS, J R . ,

                               Defendant and Respondent.



Appeal from:         D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l District,
                     Honorable Charles Luedke, Judge p r e s i d i n g .

Counsel of Record:

       For Appellant :

                 S c o t t , S c o t t and Baugh, B i l l i n g s , Montana.
                 J e f f r e y J o S c o t t argued, B i l l i n g s , Montana.

       For Respondent :

                 Michael J. Whalen argued, B i l l i n g s , Montana.



                                                   Submitted:          February 16, 1972

                                                     Decided :    flM 1- 1 9 7 ~ ~
                                                                   1   I
Honorable Jack D. Shanstrom, D i s t r i c t Judge, s i t t i n g in place of Mr. J u s t i c e
Wesley Castles, delivered the Opinion of the Court.
            This appeal and cross-appeal a r i s e s out of two separate actions
f i l e d in the d i s t r i c t court of the t h i r t e e n t h judicial d i s t r i c t , in and
f o r the county of Yellowstone, both of which were consolidated in the lower
court.      The source of both actions i s a divorce decree entered between the
p a r t i e s on August 8, 1956.          The decree incorporated by reference a property
settlement agreement, the terms of which form the basis of t h i s appeal.
            Appellant here and p l a i n t i f f below i s the f i r s t wife of respondent
who i s a l s o a cross-appellant.             The parties in t h i s opinion will be referred
t o respectively as p l a i n t i f f and defendant.
            The matters presently before the Court were i n s t i t u t e d by p l a i n t i f f
in the divorce action t o enforce c e r t a i n terms of the property settlement
agreement alleged t o have been breached by defendant.                      P l a i n t i f f a t the same

time f i l e d an original complaint in s p e c i f i c performance t o compel compliance
with the same agreement.                The reason f o r t h i s duplication in the lower court
i s not e n t i r e l y c l e a r .   In any event, the issues in each case a r e i d e n t i c a l ,
and will be so treated here.
            P l a i n t i f f a s s e r t s s i x issues f o r review; defendant cross-appeals on
the c o u r t ' s requirement t h a t he pay any alimony a t a l l .           All issues in vary-
ing degrees go t o the d i s t r i c t c o u r t ' s construction of the property s e t t l e -
ment agreement.            I t i s most convenient t o discuss the issues in conjunction
with the evidence.
            The important f a c t s a r e not in dispute.           A t the time of t h e i r divorce
in 1956, the p a r t i e s agreed in w r i t i n g on matters of property settlement,
alimony and child support.                The pertinent provisions of t h e i r agreement read
as follows:
            "6.     Beginning September 1 , 1956, First Party will
                    make the following monthly payments t o Second
                    Party:

                   " ( a ) The sum of $632.00 per month.
                   " ( b ) The sum of $150.00 per month
                           f o r the support of Arthur J . Movius, 111.

                   " ( c ) The sum of $1 50.00 per month f o r the
                           support of David Lewis Movius.
                    "(d)     The a d d i t i o n a l sum o f $150.00 p e r month f o r
                             t h e s u p p o r t o f each o f s a i d sons d u r i n g t h e
                             months o f each y e a r each i s a t t e n d i n g c o l l e g e .

             "Second P a r t y agrees t h a t from t h e payments s p e c i f i e d
             under ( b ) , ( c ) and ( d ) , she w i l l c a r e f o r and m a i n t a i n s a i d
             c h i l d r e n u n t i l t h e y r e s p e c t i v e l y complete t h e i r c o l l e g e
             education; provided, however, t h a t i f t h e sums s p e c i f i e d
             under ( b ) , ( c ) and ( d ) , t o g e t h e r w i t h o t h e r income, i f any,
             r e c e i v e d by s a i d c h i l d r e n should be inadequate t o pay f o r
             t h e maintenance o f s a i d c h i l d r e n and t h e i r c o l l e g e expenses,
             F i r s t P a r t y w i l l , upon s a t i s f a c t o r y p r o o f t h a t t h e a f o r e -
             s a i d sums a r e inadequate f o r such purposes, make such a d d i -
             t i o n a l payments as may be reasonably necessary t o p e r m i t
             each o f s a i d c h i l d r e n t o m a i n t a i n t h e l i v i n g standards
             p r e v a l e n t a t t h e c o l l e g e which he i s a t t e n d i n g .



             "If t h e a d j u s t e d gross income o f t h e P a r t y o f t h e F i r s t
             P a r t i s l e s s t h a n $35,000.00 f o r any y e a r , t h e payments
             t o Second P a r t y f o r t h e succeeding y e a r under subpara-
             graphs ( a ) , ( b ) , ( c ) , and ( d ) s h a l l be decreased by 4
             p e r c e n t o f t h e d i f f e r e n c e between t h e a d j u s t e d gross
             income and $36,500.00.                  I f t h e a d j u s t e d gross income o f
             F i r s t P a r t y i s more t h a n $38,000.00 f o r any year, t h e
             payments t o Second P a r t y f o r t h e succeeding y e a r under
             subparagraphs ( a ) , ( b ) , ( c ) and ( d ) s h a l l be increased by
             4 p e r c e n t o f t h e d i f f e r e n c e between $36,500.00 and t h e
             a d j u s t e d gross income. "

             T h i s e x t e n s i v e q u o t a t i o n forms t h e b a s i s o f p l a i n t i f f ' s c o n t e n t i o n s

on appeal.         She c l a i m s f i r s t t h a t t h e d i s t r i c t c o u r t should have awarded h e r

t h e sum o f $6,750.00 f o r a d d i t i o n a l expenses i n c u r r e d by h e r f o r t h e c o l l e g e

e d u c a t i o n o f t h e two boys over and above d e f e n d a n t ' s c h i l d s u p p o r t payments.

T h i s t h e c o u r t r e f u s e d t o do f o r t h e reason t h a t p l a i n t i f f produced no p r o o f

as t o t h e c h a r a c t e r o f such expenses, t h e i r amount o r t h e i r n e c e s s i t y .                     In

s h o r t , t h e t r i a l c o u r t found t h a t p l a i n t i f f f a i l e d t o show t h e " s a t i s f a c t o r y

p r o o f " r e q u i r e d by paragraph 6 (d) t o c r e a t e t h e e x t r a o b l i g a t i o n .              Likewise,

i t appears d u r i n g t h e p e r i o d p l a i n t i f f c l a i m s t h e a d d i t i o n a l s u p p o r t t h a t

defendant gave d i r e c t f i n a n c i a l a i d t o t h e c h i l d r e n w h i l e t h e y were e n r o l l e d

i n college.         W agree t h a t p l a i n t i f f ' s c l a i m f o r a d d i t i o n a l e d u c a t i o n expenses
                      e

i s n o t s u s t a i n e d by t h e evidence.            The c h i l d r e n b e i n g now emancipated and

educated, t h e r e i s no f u r t h e r i s s u e on c h i l d support.

            P l a i n t i f f ' s n e x t c l a i m has t o do w i t h h e r alimony r i g h t s .              Defendant's

income i s down s u b s t a n t i a l l y f r o m i t s l e v e l a t t h e t i m e o f t h e d i v o r c e .             Apply-
i n g the 4 percent            r e d u c t i o n f o r m u l a p r o v i d e d i n t h e agreement, t h e d i s t r i c t
court denied p l a i n t i f f in e n t i r e t y her r i g h t t o alimony in 1969 and reduced
i t s u b s t a n t i a l l y f o r 1970.   In doing so, the court applied the 4 percent

adjustment f i g u r e on a monthly r a t h e r than an annual b a s i s .                      The e f f e c t
of t h i s was t o give defendant the benefit of 48 percent (4 percent per month
times 12 months) of any reduction in income below $36,500.as an o f f s e t against
alimony.       P l a i n t i f f urges t h i s was e r r o r , t h a t the 4 percent reduction f a c t o r
should have been applied annually.                 The property settlement agreement does
not s t a t e which i n t e r p r e t a t i o n i s correct.   Both p a r t i e s t e s t i f i e d in favor
of the i n t e r p r e t a t i o n most favorable t o each.        In concluding as i t d i d , the
d i s t r i c t court found:
            "Referring t o the agreement as a whole, there i s
            discernible an intention of the p a r t i e s t o s e t t l e t h e i r
            a f f a i r s on an approximate equal sharing basis. The
            division of real and personal property i n t e r e s t s , on the
            terms provided, demonstrates t h i s . An analysis of para-
            graph 6 shows the existence of a similar objective w i t h
            respect t o P l a i n t i f f ' s entitlement t o share in the De-
            f e n d a n t ' s f u t u r e income. B keying the amount of support
                                                   y
            payments to the r i s e and f a l l of Defendant's income,
            when i t varies more than $1,500.00 e i t h e r way from
            $36,500.00, an adjustment f i g u r e of 4% per month approaches
            an equal division of income. Although the agreement pro-
            vides f o r an increase o r a decrease of payments ' f o r
            the succeeding y e a r ' , i t i s the payments specified under
            subparagraphs ( a ) , ( b ) , ( c ) and ( d ) which a r e adjusted
            and they a r e monthly payments. On t h i s point the De-
            fendant must prevai 1 ."
            Whi 1e we recognize p l a i n t i f f ' s argument t h a t a contrary decision
might have been reached, we cannot say a s a matter of law t h a t the d i s t r i c t
court misconstrued the agreement.                 I t was forced t o resolve an ambiguity,
and there a r e sound reasons t o support the decision reached.                         The court was
compelled t o look a t the overall i n t e n t of the p a r t i e s by established p r i n -
c i p l e s of contract construction, such a s s t a t e d in Steen vs. Rustad, 132
Mont. 96, 313 P.2d 1014:
            " * * * I t i s well established t h a t a court, i n i n t e r -
            preting a written instrument, will not i s o l a t e c e r t a i n
            phrases of t h a t instrument in order t o garner the i n t e n t
            of the p a r t i e s , b u t will grasp the instrument by i t s
            four corners and i n the l i g h t of the e n t i r e instrument,
            ascertain the paramount and guiding intention of the
            p a r t i e s . * * *"
         Plaintiff next urges t h a t the court, under the same formula applied
above, should have increased rather than decreased her alimony.              This argu-
ment i s based on the f a c t that the defendant, a physician and surgeon prac-
ticing in Billings, sold his i n t e r e s t in his medical partnership (The
Billings Clinic) in 1967 f o r $80,000, payable over two years.           This, urges
p l a i n t i f f , should have been includable as part of defendant's "adjusted
gross income" f o r those years, since i t was so l i s t e d on his income tax re-
turns.   The t r i a l court declined t o accept t h i s contention and excluded the
sale proceeds from defendant's income f o r purposes of determining alimony.
In so holding, the court emphasized the provisions of paragraph 2 of the
property settlement agreement, reading as follows:
         "The Party of the F i r s t Part shall retain and own a l l
         property standing in his name, consisting of the following:



         " ( b ) His i n t e r e s t in the assets and accounts receiv-
         able of The Billings Clinic."
         To adopt p l a i n t i f f ' s position would operate to vest her with an
i n t e r e s t in property that was clearly granted t o defendant years before in
the agreement.     The d i s t r i c t court reasoned and w agree t h a t to include
                                                           e
the s a l e proceeds of defendant's separate property f o r alimony computation
would negate the express intention of the parties as above quoted.              Plain-
t i f f in 1956 relinquished a l l interest in and to The Billings Clinic.           She
should not now be heard to reassert i t .
         In conjunction with these proceedings in the lower court, the de-
fendant petitioned to henceforth completely el iminate al 1 al imony require-
ments.   His petition was based upon an alleged change in the financial c i r -
cumstances of the parties.        The t r i a l court complied t o the extent of reduc-
ing p l a i n t i f f ' s alimony to $132 per month.   Both parties appeal from t h i s
determination.
         There i s no issue raised as to the authority of the d i s t r i c t court
to make the modification.       Whether the provisions of the property settlement
agreement were contractual or decretal i s not argued.            The question i s whether
the court abused its discretion in ruling as it did. The standard to be
applied in such cases is stated in Daniels v. Daniels, 147 Mont. 57, 409
P.2d 824, as follows:
          " * * * Thus, we see that under our law there is no
          guarantee of an annuity to a divorced wife. The trial
          judge in the ambit of his discretion must weigh the
          relative circumstances of the parties in light of the
          evidence presented in determining whether conditions
          demand a variation, alteration or revocation of alimony
          and support payments. We will look critically at that
          determination only if it is shown to be unsupported by
          the evidence before the trial court of the changing
          situations of the parties. The delicate decision is
          one of balancing the needs of the wife for support and
          maintenance against the husband's honest abil i ty to
          provide. "
          Under the facts here, we do not find the necessary abuse of dis-
cretion. For the ten years following the divorce, defendant's income ranged
general ly between $36,500 and $45,000 annually. Then, with the termination
of his partnership interest in The Billings Clinic in 1967, defendant's in-
come dropped to $1 9,500 the fol lowing year. It rose to $26,500 in 1969 and
was not more than that in 1970. At the time of the hearing, defendant was
$10,000 in debt with no assets beyond accounts receivable from his medical
practice. He had exhausted the receipts from the sale of the Clinic in
setting up his new practice, making alimony payments and meeting living ex-
penses.
          Plaintiff, on the other hand, had accumulated a net worth of approxi-
mately $137,000 and in addition was a 50 percent beneficiary to the proceeds
of an estate appraised at $102,000 at the time of hearing. Although her in-
come earning capacity was in dispute due to injuries sustained in a bicycle-
pedestrian accident, we cannot disagree with the district court's holding
that she was financially able to provide for herself.
          The fact that defendant used a $20,000 inheritance from his sister
in 1969 to meet mortgage payments on a home owned by his present wife is not
in our opinion sufficient justification to overturn the lower court's ruling.
Again we are dealing with broad discretionary guidelines, and whether we agree
or disagree with the district court is not the issue. We are not able to state
as a m a t t e r o f law t h a t t h e t r i a l judge abused " t h e ambit o f h i s d i s c r e t i o n . "

Daniels , supra.

            What we have s a i d above a p p l i e s e q u a l l y t o b o t h p l a i n t i f f ' s appeal

and defendant's cross-appeal on t h e s u b j e c t o f f u t u r e alimony.                        The r u l i n g

i s affirmed.        The $132 monthly payments do no more than pay t h e premiums on

an insurance p o l i c y c a r r i e d by p l a i n t i f f ( w i t h t h e c h i l d r e n as c o n t i n g e n t

b e n e f i c i a r i e s ) on defendant's 1 i f e .       Such insurance p o l i c y was r e f e r r e d t o

i n t h e p r o p e r t y s e t t l e m e n t agreement.     There i s no d i s p u t e t h a t o u t o f t h e

$632 monthly a1 imony payments c a l l e d f o r t h e r e i n , t h e sum o f $132 was s e t

aside as t h e insurance premium.                  T h i s being t h e f a c t , we cannot d i s p u t e t h e

d i s t r i c t court's finding:

            "Considering t h e purposes behind t h e c r e a t i o n and main-
            tenance o f t h i s insurance p o l i c y , i t should be continued
            i n effect.

            "The payment t o p l a i n t i f f , t h e r e f o r e , should be reduced
            t o t h e sum o f $1 32.00 per month from and a f t e r March 6,
            1970."

            The f i n a l i s s u e f o r review i s whether t h e d i s t r i c t c o u r t e r r e d by

d i s m i s s i n g p l a i n t i f f ' s c l a i m f o r one-half t h e value o f c e r t a i n Montana S t a t e

College revenue bonds owned by t h e p a r t i e s a t t h e t i m e o f t h e d i v o r c e .                  Para-

graph 3 o f t h e p r o p e r t y s e t t l e m e n t agreement provides as f o l l o w s :

            "Each o f t h e p a r t i e s s h a l l be e n t i t l e d t o an undivided
            one-half i n t e r e s t i n a l l stocks and bonds standing i n
            t h e names o f t h e p a r t i e s hereto as j o i n t tenants."

            There i s much argument whether t h e bonds were owned by t h e p a r t i e s

as j o i n t tenants o r , as contended by defendant, were bearer bonds.                                  The d i s -

t r i c t c o u r t h e l d they were n o t j o i n t l y owned.         W need n o t r e s o l v e t h a t issue,
                                                                          e

f o r i t i s undisputed t h a t defendant cashed t h e bonds i n 1957 and r e t a i n e d

t h e proceeds.        He d i d so i n o p p o s i t i o n t o a demand made by p l a i n t i f f ' s coun-

s e l i n 1957 o r 1958 t h a t he pay over one-half t h e proceeds t o her.

            I n Montana, an a c t i o n upon t h e p r o v i s i o n s o f a w r i t t e n c o n t r a c t must

be commenced w i t h i n e i g h t years o r be barred by t h e S t a t u t e o f L i m i t a t i o n s .

Section 93-2603, R.C.M.              1947.      P l a i n t i f f here waited n e a r l y 14 years a f t e r

t h e a l l e g e d breach became known t o her.

            The judgment o f t h e d i s t r i c t c o u r t i s a f f i r m e d .
                                 '    Hon. Jack Shanstrom, d i s t r i c t judge, s i t t i n g
                                      in place of Mr. Justice Wesley Castles.




t h i e f ,d t f t i c e   :   .+ .
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