                                           NO. 96-484

                I THE SUPREME COURT OF THE STATE OF MONTANA
                 N
                                              1997


I RE MARRIAGE OF
 N
LARRY R. MEYER,

               Petitioner and Appellant,

         and

MARY E.HOOVER-MEYER,

               Respondent and Respondent.



APPEAL FRQM:          District Court of the Fourth Judiciaf Distrkt,
                      In and for the County of Missoula,
                      The Honorable John S. Henson, Judge presiding.



COUNSEL OF RECORD:

               For Appellant:

                      Larrqi Meyer, Pro Se,
                      Edmonds, Washington

               For Respondent:

                      Dennis E. Lind; Datsopoufos, MacDonald & Lind;
                      Missoula, Montana




                                                        Submitted on Briefs: February 17. 1997

                                                                   Decided: April 8, 1997
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.

       Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1995 Internal

Operating Rules, the following decision shall not be cited as precedent and shall be published

by its filing as a public document with the Clerk of the Supreme Court and by a report of its

result to State Reporter Publishing Company and West Publishing Company.

       The appellant, Larry Meyer, filed motions, pursuant to       5   40-4-219, MCA, and

Rule 60(b), M.R.Civ.P., to modify custody and to set aside judgment in the District Court for

the Fourth Judicial District in Missoula County. The District Court denied the motions and,

pursuant to the parties' marital and property settlement agreement, awarded attorney fees and

costs to the respondent, Mary Hoover-Meyer. Larry appeals that part of the District Court's

order which awards attorney fees and costs to Mary. We affirm the District Court.

       The issue on appeal is whether the District Court erred when it awarded attorney fees

and costs to Mary.

                               FACTUALBACKGROUND

       After twenty-five years of marriage, the parties separated and reached a marital and

property settlement agreement ("the Agreement"). On April 11, 1995, the District Court

entered a decree of dissolution, which incorporated the Agreement.

       The Agreement established the following parenting plan for Lisa, the parties' only

child: "Mary has no plans to move from Missoula. Unless circumstances change, this living

arrangement will continue in effect."
       After the District Court entered the dissolution decree, Larry became aware of Mary's

intention to rcrnarry and move from Missoula to Great Falls.

       In response, Larry filed motions pursuant to $ 40-4-219, MCA, and Rule 60(b),

M.R.Civ.P., to modify custody and to set aside judgment. The motions alleged that:

(1) Mary's relocation to Great Falls constitutes a change in circumstances which warrants a

modification of the parties' existing custody arrangement; and (2) the dissolution decree was

obtained by fraud, and therefore, is invalid.

       After a hearing, the District Court denied both motions. The District Court also

awarded attorncy fccs and costs to Mary. Larry appeals that part of the District Court's order

which awards attorney fees and costs to Mary.

                                       DISCUSSION

       Did the District Court err when it awarded attorney fees and costs to Mary?

       When the language of a marital and property settlement agreement is clear, a district

court is bound by its terms. Marriage of Caras (1994), 263 Mont. 377,385,868 P.2d 615,

620. We must decide, therefore, whether the District Court erred when it concluded that the

attorney fees provision of the Agreement applies to Larry's motions. When we review a

district court's conclusions of law, the standard of review is whether those conclusions are

correct. Carbon County v. Union Reserve Coal Co., Inc. (1995), 271 Mont. 459,469,898

P.2d 680,686.

       Lany asserts that his motion to set aside judgment, made pursuant to Rule 60(b),

M.R.Civ.P., was based on allegations of fraud and therefore, that Mary is not entitled to the
                                                3
attorney fees and costs attributable to her defense of that motion. In support of his claim, he

cites Wise v. Nirider (1993), 261 Mont. 310, 862 P.2d 1128.

       In Wise, the wife moved the District Court, pursuant to Rule 60(b), M.R.Civ.P., to set

aside the property settlement agreement and reopen the dissolution proceedings. She alleged

that the agreement had been obtained by fraud and therefore, was invalid. The District Court

granted her motion. On appeal, we reversed the District Court and held that "the allegations

of fraud . . . fall short of what is legally required to vacate a final judgment pursuant to . . .

Rule 60(b)." Wise, 261 Mont. at 317, 862 P.2d at 1133.

       The husband claimed that, as the prevailing party on appeal, he was entitled to an

award of attorney fees. He based his claim on the following provision in the parties' property

settlement agreement:

       In the event that either party brings legal action to interpret or enforce any of
       the terms or provisions of this Agreement, the prevailing party in said legal
                                                        .. .
       action is entitled to recover. . . attorney fees .

(Emphasis added.)

       We concluded that Wise's motion to set aside the property settlement agreement was

not an action to "interpret or enforce" the terms of the agreement. Accordingly, we rejected

Nirider's argument and held that the attorney fees provision did not apply. Wise, 261 Mont.



       The attorney fees provision in this case, however, states, in relevant part, as follows:.

       In the event that either party thereafter shall find it necessary to retain an
       attorney andor institute legal proceedings to enforce. modifv. or intemret any
      provision of this Agreement . . . the Court shall award reasonable attorney's
      fees and costs to the prevailing party . . . .

(Emphasis added.) Based on the inclusion of the additional term "modifk," we conclude that

the attorney fees provision in this case is significantly broader than the one in Wise and

therefore, that our holding in Wise does not control the outcome of this case.

       After a review of the record, we conclude that when Larry moved the District Court

pursuant to 5 40-4-219, MCA, and Rule 6O(b), M.R.Civ.P., he sought a modification of the

parties' existing custody arrangement. Our conclusion is buttressed by Larry's affidavit in

support of his motions, which states as follows:

       I am requesting that the [dissolution] decree be modified because of fraud by
       Respondent (hereinafter "Mary"), and that pending a hearing on these issues
       the primary physical custody of the parties' minor child. Lisa. be changed from
       Mary to me.

(Emphasis added.)

       We therefore conclude that the attorney fees provision in the Agreement does apply

to Larry's motions. Accordingly, we hold that the District Court did not err when it awarded

attorney fees and costs to Mary. We further hold that, pursuant to the Agreement, Mary is

also entitled to her attorney fees and costs on appeal.

       The judgment of the District Court is affirmed.
We Concur:




             Justices   /
