Marriage of Jones

Opinion

No. 85-60

IN THE SUPREME COURT OF THE STATE OF MONTANA 1985

IN RE THE I'JARRIAGE OF .

VULLOY B JONES, Petitioner and Respondent, and

LARRY JONES,

Petitioner and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable James B. Wheelis, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Ellingson & Moe; Jon E. Ellingson, Missoula, Montana

For Respondent:

Terry A. Wallace, Missoula, Montana

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Submitted on Briefs: July 25, 1985 Decided: November 19, 1985

Filed :

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Clerk

Mr. J u s t i c e 1,. C. Gulbrandson d e l i v e r e d t h e Opinion o f the Court.

Larry Jones appeals an order of the Missoula County

District Court directing him to pay his ex-wife, Vulloy,

$4,851.67 as back payments of maintenance and $2,146 as

reasonable attorney's fees. The i s s u e s o n a p p e a l a r e : (1)

w h e t h e r t h e D i s t r i c t C o u r t e r r e d i n r u l i n g t h a t h u s b a n d owed

w i f e m a i n t e n a n c e u p o n h i s c e s s a t i o n of c h i l d s u p p o r t p a y m e n t s

to her; (2) whether the District Court erred in only

partially enforcing wife's promissory note t o husband; and

(3) whether the District Court e r r e d i n granting wife her

attorney's fees. Affirmed i n p a r t and remanded.

I n August 1979, L a r r y and V u l l o y J o n e s filed a joint

petition for dissolution of marriage in Missoula County

District Court. A f i n a l d e c r e e d i s s o l v i n g t h e i r m a r r i a g e was

e n t e r e d t h a t same m o n t h . As t h e J o n ~ s y o i n tp e t i t i o n h a d

requested, the final decree granted full custody of the

p a r t i e s 1 two minor c h i l d r e n t o t h e wife. The f i n a l d e c r e e

orders the husband (appellant) to pay $150 p e r month p e r

child to the wife (respondent). In the paragraph which

immediately follows t h a t provision, t h e decree s t a t e s ;

Upon t e r m i n a t i o n of t h e c h i l d s u p p o r t o b l i g a t i o n , LARRY E. JONES s h a l l p a y t o VULLOY B. JONES t h e sum o f $ 1 0 0 . 0 0 p e r month, a s and f o r h e r maintenance, u n t i l her remarriage o r death.

These p r o v i s i o n s o f t h e f i n a l decree a l s o m i r r o r t h e language

of t h e Jones1 joint petition f o r dissolution.

Appellant paid the $150 p e r month p e r c h i l d payments

u n t i l A p r i l 1980. I n e a r l y 1 9 8 0 , r e s p o n d e n t d e c i d e d t o move

t o C a l i f o r n i a and s h e approached a p p e l l a n t f o r a $1,000 l o a n .

A p p e l l a n t a g r e e d t o l o a n r e s p o n d e n t $1,000 i f s h e would s i g n

a promissory n o t e i n h i s f a v o r f o r $2,000.

Appellant testified that he asked respondent to sign the $2,000 promissory note because respondent owed him well over $1,000 prior to the $1,000 loan. Appellant testified that respondent owed him over $1,000 (before the loan) for money he had given her in addition to the child support payments, for a pickup truck he loaned her to use, for a trailer hitch he put on her car, and for her parking tickets he had paid.

Respondent testified that appellant told her he did not expect her to pay the note but that he needed the note for income tax purposes. She also testified that appellant had loaned her a pickup truck for her use. Respondent denied or did not remember that appellant had given her other money or support.

Respondent signed the $2,000 promissory note and appellant then gave her $1,000. The note carried 14% interest and was due on February 13, 1981. Respondent then moved to California in April 1980.

Upon respondent's move, the parties' two minor children went to live with their father. Appellant raised and supported the children beginning in April 1980. Appellant did not make the child support payments to his ex-wife that month or thereafter. Appellant did not commence maintenance payments to his ex-wife until forced to do so by this lawsuit.

In August 1983, respondent filed a petition for enforcement of decree. Respondent alleged that appellant's child support obligations had ended in April 1980 and that, under the terms of the final decree, appellant owed her maintenance from that time. Appellant filed a response to the petition and a counterclaim. As his counterclaim, appellant alleged that respondent had not paid the promissory note, which was due. Respondent answered the counterclaim admitting that she had not made any payments on the note but alleging that she had not received sufficient consideration for the $2,000 note. She further alleged that appellant fraudulently induced her to sign the note.

In October 1984, the District Court issued its findings of fact, conclusions of law and order. The District Court found that, under the final decree, respondent was to receive maintenance of $100 each month upon termination of

appellant's child support obligation. The court found that appellant's child support obligation terminated in February 1980. The court further found that appellant had made no maintenance payments. The court concluded that appellant owed respondent $6,505, including interest, for maintenance arrearages.

The court found that respondent was entitled to recover her reasonable attorney's fees on this action. The court ruled that one-third of the recovery of $6,505 (or $2,146) was a reasonable attorney's fee.

Lastly, the court found that respondent owed appellant $1,653.33, including interest, on the loan made to her by appellant. The court offset this amount against what appellant owed respondent in maintenance arrearages.

The first issue is whether the District Court erred in ruling that appellant owed respondent maintenance upon his cessation of child support payments to her. The standard of review for that decision is set forth in Rule 52(a), M.R.Civ.P;

Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.

This Court's function is to review the district court's findings in light of the record and make certain the find-ings are not clearly erroneous. Carr v. Carr (Mont. 1983) , 667 P.2d 425, 40 St.Rep. 1263; Peckenpaugh v. Peckenpaugh (Mont. 1982), 655 P.2d 144, 39 St.Rep. 2132.

The final decree provided that appellant would pay respondent maintenance upon the termination of his child support obligation. Appel-lant contends that this child support obligation (the termination of which would trigger his maintenance obligation) refers to his general duty to support and raise his children. Appellant correctly cites Torma v. Torma (1982), 198 Mont. 161, 645 P.2d 395; and Chrestenson v. Chrestenson (1979), 180 Mont. 96, 589 P.2d 148, for the proposition that a parent's general obligation to support his child ends upon that child's emancipation at

age eighteen. See also S S 40-4-208 ( 5 ) , 41-1-101, 40-6-211, MCA. Appellant did meet this general obligation of support while his children lived with him (and presumably until they were eighteen). Therefore, appellant asserts that the child support obligation ended upon his youngest child's eighteenth birthday and that his maintenance obligation arose on that date. The resolution of this issue hinges on whether the child support obligation referred to in the final decree is that general obligation cited in Torma and Chrestenson.

In effect, the District Court found that the child support obligation (as referred to in the final decree) was the specific, monthly payments to be made by the appellant and not appellant's general obligation. Hence, once appellant stopped the monthly payments, his maintenance obligation began. This conclusion is supported by the fact that the reference in the final decree to the termination of the child support obligation followed directly after the

court's order of monthly child support payments. Thus, it is inferable that the disputed child support obligation (the termination of which triggered the maintenance payments) was that obligation set up in the immediately preceding sentence.

More importantly, the court, in making this ruling, was interpreting its own final decree. We decline appellant s invitation to second guess the District Court's interpretation of its own decree. We hold that the District Court's ruling, that appellant's maintenance obligation began when he stopped making monthly child support payments to respondent, was not clearly erroneous.

The second issue is whether the District Court erred in

only partially enforcing respondent's promissory note to appellant. In 1980, respondent signed a $2,000 promissory note, with 14% interest, in appellant's favor. The lower court held that respondent owed appellant $1,653.33, including interest, up through October 1984. Respondent testified that the only other consideration she received for

the note, besides the $1,000 loan, was the use of a pick-up truck. Thus, there was evidence to support the lower court's decision to only partially enforce the note. The lower court's ruling on this issue was not clearly erroneous and

must be upheld.

The third issue is whether the District Court erred in awarding respondent her attorney's fees. Appellant contends that there was insufficient evidence to establish the reasonableness of the amount of the award and the need for the award. Appellant also complains that the District Court made no written findings as to the need for the award.

Appellant cites the oft-repeated rule, " . . . that written findings are required to establish both the need and reasonableness of an award of attorney's fees. " See, e.g., Duffey v. Duffey (Mont. 1981), 631 P.2d 697, 699, 38 St.Rep. 1105, 1107.

There may be sufficient evidence in the record to find that the wife had a genuine need for the award of attorney's fees. She testified that she lost her job upon returning to

California after what was apparently the preliminary hearing in this case. She also testified that she told appellant,

prior to executing the promissory note, that there was no way she could repay him. However, the District Court made no findings of fact as to the wife's need for an award of attorney's fees.

In Duffey, the trial court failed to make essential written findings establishing both the need and the reasonableness of an award of attorney's fees. We held that this failure required that we vacate the award of attorney's

fees, even though only $200 was awarded. Accordingly, we vacate the trial court's award of attorney's fees in the instant case.

Furthermore, we note that the District Court made findings as to the reasonableness of the amount of the award of attorney1s fees. The court found that a reasonable attorney's fee for the recovery of $6,505 is one third of

that amount. The court reasoned that one third is a standard attorney's fee for the recovery of an indebtedness.

On June 6 , 1985, this Court filed its new Rules of Professional Conduct relating to the Client-Lawyer Relationship. Rule 1.5, entitled Fees, states at section

(a):

A lawyer shall not enter into an arrangement for, charge, or collect:

(1) a n y f e e i n a d o m e s t i c r e l a t i o n s m a t t e r , t h e payment o r amount o f w h i c h i s c o n t i n g e n t upon t h e s e c u r i n g o f a d i v o r c e or upon the amount of alimony or support ...

There i s no evidence in the r e c o r d t h a t t h e r e was a

contingent fee agreement between the respondent and her

attorney, but because the court may have considered the

amount r e c o v e r e d a s t h e sole b a s i s f o r t h e a w a r d , a n d b e c a u s e

of the lack of f i n d i n g s a s t o t h e need f o r t h e award, we vacate the award of attorney's fees and remand for

reconsideration by the trial court and the entry of

appropriate findings of f a c t .