                                NO. 8 9 - 3 5 6

               IN THE STJPREME COURT OF THE STATE OF MONTANA

                                     1989




IN RE THE MARRIAGE OF
SHEILA G. LYMAN,
                 Petitioner and Respondent,
       and
CH.ARLES E. LYMAN,
                 Respondent and Appellant.




APPEAL FROM:    District Court of the Eleventh Judicial District,
                In and for the County of Flathead,
                The Honorable Michael Keedy, Judge presiding.

COUNSEL OF RECORD:

       For Appellant:

                M. Dean Jellison, Kalispell, Montana
       For Respondent:
                 Gary R. Christiansen; Warden, Christiansen, Johnson       &
                 Berg, Kalispell, Montana




                                    Submitted on Briefs:     Oct. 25, 1 9 8 9
                                        Decided:   December 20, 1989
Justice Diane G. Barz delivered the Opinion of the Court.

     Charles Lyman appeals from a judgment by the District
Court of the Eleventh Judicial District, Flathead County,
awarding Sheila Lyman attorney's fees and costs.           We
reverse.
     Sheila filed for dissolution on August 10, 1983, in
Cause No. DR-83-346. After a non-jury trial on December 18,
1984, the District Court entered a decree of dissolution on
January 3, 1985. The terms of the parties' separation and
property settlement agreement, incorporated into the decree
by reference, required Charles to make certain monthly and
periodic payments to Sheila.     In its July 23, 1985 order
finding Charles in contempt for his failure to make these
mandatory payments, the District Court ruled that Sheila was
"entitled to recover her reasonable attorney's fees and
costs, to be determined at a subsequent hearinq for that
purpose. "
      One of the marital assets was the Bushwacker Restaurant
in Port Angeles, Washington. The parties owned a one hundred
percent interest in the restaurant business and a seventy
percent interest in the real estate on which the restaurant
is located.     Marian Burlce, Charles' mother, owned the
remaining thirty percent interest in the real estate. This
asset became part of Mrs. Burke's estate upon her death.
Charles was co-executor of his mother's estate along with his
brother.
     Sheila received the parties' interest in the Rushwacker
Restaurant and the underlying real estate pursuant to the
separation and property settlement agreement.     During the
process of negotiating her purchase of Mrs. Burke's thirty
percent interest in the real estate, Sheila executed the
following handwritten release of any claim for attorney's
fees from Charles resulting from the District Court's order
of July 23, 1985:
          August 13, 1986
           To Whom it may concern,
                 I, Sheila Lyman, release Charles
           Lyman from all obligations to pay any
           outstanding attorney's fees that I have
           with   Don   ZaBar   or  his  firm  for
           representation of me      in the Lyman
           dissolution of marriage.
           Is/ Sheila Lyman
     In a separate action, Cause No. DR-87-189(B), Sheila
petitioned for modification of the decree of dissolution
based both on a change in circumstances and Charles' failure
to fully disclose the assets of the marital estate. Sheila
sought recovery of attorney's fees incurred in pursuing the
modification and those awarded to her in Cause No. DR-83-346,
the prior and separate contempt action. The District Court
heard testimony and argument regarding the propriety of
entering a judgment for attorney's fees awarded in the
contempt action.      However, its findings of fact and
conclusions of law contained no ruling on that issue.
     Sheila then moved the District Court for an order in
Cause No. DR-83-346,
           determining the attorney's fees and costs
           contemplated and Ordered by the Court to
           be paid as part of the Findings of Fact,
           Conclusions of Law and Order issued by
           the Court on July 23, 1985, .    .. [and]
           [flor interest on said sums at the rate
           of 10% per annum from and after July 23,
           1985.
The court found Sheila's claim was not barred by res judicata
and that "[tlhere being no consideration the purported
'release' is not enforceable."       Charles appeals from the
judgment of the District Court.
                        RES JUDICATA
     Charles argues that the District Court, by not ruling on
an issue before it, implicitly denied recovery to the moving
party on that basis. Thus, Sheila's claim was barred by - res
judicata.   Sheila, on the other hand, contends that the
District Court refused to rule on this issue.      While the
record does not clearly reflect the District Court's
rationale, it is clear that the District Court did not enter
a judgment regarding the prior awarded attorney's fees in
Cause No. DR-87-189 (B).
     "Only final judgments and orders intended to be final in
nature are res judicata. "  Lien v. Murphy Corp. (1982), 201
Mont. 488, 493, 656 P.2d 804, 806; Peterson v. Montana Rank
of Bozeman, N.A. (1984), 212 Mont. 37, 45, 687 P.2d 673, 677.
Furthermore, when the District Court in the modification
proceeding did not enter a judgment regarding the attorney's
fees awarded in Cause No. DR-83-346, such judgment did not
render the issue res judicata. Washington Pub. Power Supply
Sys. v. Pittsburgh-Des Moines Corp. (9th Cir. 1989), 876 F.2d
690, 699; Matter of Estate of Kopely (Ariz. 1988), 767 P.261
1181, 1183; Vertecs Corp. v. Reichhold Chems., Inc. (Alaska
1983), 671 P.2d 1273, 1276.    The District Court properly
ruled that res judicata did not bar Sheila's claim.
                        CONSIDERATION
     Sheila argues that "Wife and the Estate had reached
agreement on [Wife's] . ..  purchase of the Estate's interest
[in the real estate] well over a year before the closing of
the   transaction   . . .   [and   that]   [tlhere were    no
qualifications."   Sheila contends she offered the estate
$40,000 cash or $50,000 terms for its thirty percent interest
in the real property.      Acceptance of her offer, Sheila
asserts, is contained within the following portion of a
letter from the co-executors' attorneys dated April 25, 1385:
          Please be advised that the executors will
          accept the sum of $40,000 in cash for the
          30% interest of Marian OS Burke in this
          real estate provided that the purchaser
          causes Mrs. Burke's estate to be released
          from any liability under the aforesaid
          mortgage and further provided that the
          purchaser take subject to the lease of
          the Rushwacker Restaurant.
      This letter clearly contains additional terms in the
requirement that the purchaser release the estate from any
liability pursuant to the underlying mortgage. There is no
indication that Sheila accepted these additional terms or
that the parties entered into a written contract at this
time.    For that reason, the letter cannot be considered an
acceptance but must be construed as a rejection of Sheila's
offer and a counter offer.       Carriger v. Ballenger (Mont.
1981), 628 P.2d 1106, 1109, 38 St.Rep. 864, 867.
     Thus, the following letter of June 17, 1986, from
Charleshttorney to Sheila was a new offer:
            [Charles] has informed me that once he
            has   received confirmation from Ann
            Blickensderfer that she has received a
            cashier's check in the amount of $40,000,
            plus a cashier's check in the amount of
            $4,400.00 representing 11% interest to
            June 1, 1986, plus a per diem of $12.06
            from June 1, 1986 plus your share of the
            closing costs which is in the amount of
            $13.00. You will also be responsible for
            the second half property taxes in the sum
            of $2,040.50 which amount will not have
            to be paid at closing.     [Charles] will
            also require a written statement by you
            that you will release him from all
            obligation   to   pay   any   outstanding
            attorney's fees you have with Don LaBar
            or his firm for representation of you in
            the Lyman dissolution and any of its
            aftermath.
     Sheila testified that she believed the sale of the
estate's interest in the real property would not have gone
through had she not executed the release. Sheila appears to
have fulfilled the other requirements set forth in the June
17 letter.   These terms were not mentioned in the April 25,
1985, letter. If, as Sheila contends, a contract was formed
on April 25, the terms contained in the June 17 letter would
be modifications of the original contract and would also
require additional consideration. Naylor v. Hall (1982), 201
Mont. 59, 66, 651 P.2d 1010, 1014;  28-2-504, MCA. However,
no contract was formed on April 25, therefore the June 17
letter constituted a separate offer for which there w a s
adequate consideration.     We therefore conclude Sheila
released Charles from his obligation to pay her attorney's
fees. The District Court erred in ruling otherwise.
     We reverse.
                                       r




We concur:     ,/
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