Baker v. Baker

646 P.2d 522, 198 Mont. 371, 1982 Mont. LEXIS 819
Montana Supreme Court·Decided June 10, 1982·No. No. 81-393·Published·Cited by 3 cases

Opinion

MR. JUSTICE HARRISON

delivered the opinion of the Court.

This is an appeal from the judgment of the District Court of the Fourth Judicial District, in and for the County of Missoula, arising out of a marital dissolution.

At the time of their divorce, Evelyn and Dewey Baker entered into a property agreement dated June 27,1980. This agreement was approved by the court and entered into the decree of dissolution on that same date. Under the terms of the property agreement, among other provisions, the parties agreed that all family obligations of the parties incurred by them prior to August 7,1979, were to be the sole and separate obligations of the appellant husband. Obligations incurred since that date by the parties individually were to be the separate obligations of the party who incurred the obligations.

The parties agreed that the wife would have full custody and control of the five minor children, that the husband was to [373]*373have reasonable visitation rights and certain periods of time during the summer and holidays; in addition, the appellant husband was to make arrangements with the wife prior to these visitations. The husband was to pay all medical and dental bills.

The husband was to convey to the wife an apartment complex owned by the parties in Missoula, Montana, the income from which was to be used by her as and for the obligation of the husband to pay support, maintenance and care and education of the parties’ minor children. The appellant husband further agreed with regard to the conveyance of the apartment to provide an income to the wife of at least $1,000 per month. This was set up so in the event the gross rents received from such apartments did not exceed $1,000 for any one month, the respondent wife would notify the husband of such deficit and he was to make up the difference in a cash payment within fifteen days.

Pursuant to the property agreement the appellant husband agreed to deposit in the Farmers State Bank in Victor, Montana, the sum of $1,000 and to maintain that account in the name of the respondent wife, and to further maintain a balance in the account of $1,000. With regard to this agreement it was understood that the respondent could draw upon this account at any time the gross rents received from the apartments were less than $1,000 for any one given month. In the event that the wife drew on the account, the husband had the obligation to return the account to its $1,000 balance within the fifteen-day period. In addition, the agreement provided that at any time the respondent wife drew upon the account, when the gross rents received from the apartments were equal to or exceeded $1,000, or drew upon the account for the reason other than making up for the reduction in the gross rents received from the apartments, for any given month, the account in the Farmers State Bank would be closed and all proceeds therein returned to the appellant husband.

The ink was hardly dry on the trial judge’s signature to the dissolution agreement before the parties were once again back [374]*374in court. On February 13,1981, the respondent wife petitioned the District Court for a restraining order to prevent the appellant husband from exercising his visitation rights and petitioned the District Court for a hearing on arrearages and support payments and numerous other problems she was having as a result of having custody of the children.

Hearings were held on the wife’s motion to enforce the decree on May 15,1981 and May 22,1981, in the Ravalli County Courthouse. Following these hearings the court, on June 18, 1981, entered an order based upon the evidence of the hearings. Within less than two weeks, the appellant husband filed motions for a new trial and for alteration or amendment of the order of the District Court, both pursuant to Rule 59, M.R.Civ.P. The husband further moved to set aside the order because there were no findings of fact or conclusions of law, to stay the execution and enforcement of the order, and to modify the support provisions of the original order.

It would appear that the appellant husband, realizing that the motions for a new trial and for amendments were not timely, on July 22, 1981, filed a notice of appeal. Thereafter, on November 4,1981, the appellant husband moved for a stay of execution. That motion was denied after a brief hearing, and the appellant husband then moved the court to reestablish visitation with his children. That motion was heard on December 21, 1981, and a transcript of that hearing was included on this appeal.

On August 13,1981, the court did enter findings of fact and conclusions of law pursuant to the request of the husband in his June 29, 1981, motion.

Five issues are presented for consideration:

1. Whether the order dated June 18,1981, should be vacated and reversed for failure to include findings of fact and conclusions of law.

2. Whether the change of visitation ordered by the supplemental decree dated May 15, 1981, was supported by findings of fact or by evidence.

[375]*3753. Whether the order of the court establishing the appellant’s arrearages in the amount of $2,849 is supported by the evidence.

4. Whether the order of the court compelling the appellant to pay management fees is supported by the law or the facts.

5. Whether the order compelling a reestablishment of escrow account is an impermissible modification of the binding agreement of the parties.

Here, the decree of dissolution of marriage was entered on July 14,1980. By motion dated February 13,1981, the wife sought to enforce the decree as to the payment of child support and real property taxes, and also sought that the visitation privileges of the husband be changed. We are not involved with an appeal from a judgment following trial. The last sentence of Rule 52(a), M.R.Civ.P., disposes of the issue, stating:

“Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41(b).”

Rule 41(b) pertains to involuntary dismissal of actions and is not applicable here. As a result, we conclude that under Ride 52(a) findings of fact and conclusions of law were not required under the rules.

Issue two involves the change of visitation by the appellant husband. As in so many cases where the word “reasonable” visitation rights are put into the decree, the interpretation of the word “reasonable” is left to two unreasonable parties. That is the situation here, and the District Court found it necessary to modify the decree to set forth a scheduled visitation that both parties could live by.

The evidence submitted at the hearings clearly shows that the husband abused his privileges under the visitation rights set forth in the original decree. The trial court merely clarified those rights by permitting both parties to have alternative weekend visitations and setting a specific forty-day summer visitation. In addition, the court provided for the manner in which the appellant husband was to arrange visita[376]*376tions. These restrictions and clarifications were warranted by the evidence presented to the court, and there is clearly no abuse of its discretion.

The third issue is directed to arrearages which the appellant husband argues are not supported by the evidence.

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Baker v. Baker, 646 P.2d 522, 198 Mont. 371, 1982 Mont. LEXIS 819 (Mo. 1982).

646 P.2d 522 (Baker v. Baker) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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