Nyquist v. Nyquist

631 P.2d 721, 193 Mont. 288, 1981 Mont. LEXIS 786
Montana Supreme Court·Decided July 30, 1981·No. No. 80-332·Published

Opinion

MR. JUSTICE MORRISON

delivered the opinion of the Court.

Plaintiff Carley Nyquist appeals from the findings of fact, conclusions of law and order entered in the First Judicial District Court, Lewis and Clark County. Plaintiff petitioned the court for failing to make maintenance payments. Defendant petitioned the court to modify the maintenance payments due to plaintiff under the parties’ decree of divorce. The order of the District Court terminated defendant’s responsibility for maintenance of the plaintiff.

Plaintiff and defendant were married in September 1949, in Spokane, Washington. In September 1973, a decree of divorce was entered by the District Court of the First Judicial District, Lewis and Clark County. The decree required defendant to pay child support of $ 100 per month for their minor child, Dirk Nyquist. The decree further ordered defendant to pay maintenance to the plaintiff in the amount of $500 per month from October 1, 1973 until October 1, 1974, and then $400 per month thereafter. Additionally, defendant was required to pay the premiums necessary to maintain health and hospital insurance coverage for the plaintiff.

When the decree was entered, plaintiff was employed as a part-time clerk. She subsequently attended and was graduated from a beauty school. Presently, she is employed as a full-time beautician in Anaconda, Montana. Her average monthly income from this employment is approximately $350 to $400 per month.

At the time of the decree, defendant was employed as an official court reporter for the District Court of the Eighth Judicial District, Cascade County. Defendant is currently employed in the same capacity and also engages in additional private court reporting.

In 1979, defendant suffered serious medical problems necessitating amputation of one leg. Defendant was unable to work for a seven-month period from June to December 1979. The defendant returned to work as a court reporter part-time in January 1980. He resumed full-time employment in March 1980.

[290]*290Defendant’s salary as a court reporter is $18,000 per year. His outside income varies from year to year. Testimony at the hearing established that defendant’s net income for 1977 was $29,681. For 1978, his net income was $20,694. In 1979, due to his medical problems, defendant’s net income dropped to $15,500. During the first five months of 1980, defendant also testified that his private work declined as a result of the amputation of his leg.

Due to his medical problems, the defendant filed a petition for modification of the decree of divorce on September 13, 1979. Plaintiff subsequently filed an affidavit in support of an order to show cause why the defendant should not be held in contempt for failure to comply with the decree of divorce.

These petitions were heard on June 4, 1980, and on July 28, 1980. On June 4, 1980, the defendant appeared and testified. Neither plaintiff nor her counsel appeared at this hearing due to lack of notice. The parties later stipulated that the record could be reopened in order to allow the plaintiff to present her testimony. The plaintiff appeared and testified on July 28, 1980.

Proposed findings of fact and conclusions of law were submitted by the parties and on August 26, 1980, the District Court entered its findings of fact, conclusions of law and order. The court found that defendant was current in his child support and life insurance payments and entered findings regarding the amount of maintenance defendant had paid to plaintiff. The court further entered findings with regard to defendant’s income and debts and plaintiff’s need for maintenance.

The court concluded that the parties economic circumstances had changed materially since the entry of the decree of divorce. The court then entered the following order:

“IT IS HEREBY ORDERED that the defendant is no longer responsible for the maintenance of the plaintiff herein.

“FURTHER IT IS ORDERED that the defendant make the support payment of $100.00 a month as and for support of the minor child, Dirk Nyquist, to the date the minor child reaches the age of 18.

[291]*291“FURTHER IT IS ORDERED that the defendant shall continue to make the premium payments on the plaintiff’s life insurance policy.”

The issues to be decided by this Court are:

1. Whether the District Court erred in failing to order defendant to pay delinquent maintenance payments?

2. Whether the District Court erred in terminating defendant’s responsibility to make maintenance payments?

The first issue presented on appeal is not properly before this Court. It has long been held by this Court that “. . . there must be a final judgment from which an appeal may be taken before we are vested with jurisdiction to make a determination.” State v. City of Helena (1961), 139 Mont. 343, 350, 363 P.2d 720, 723; Rule 1(a), M.R.App.Civ.P.

In the case at bar, the issue of maintenance arrearages was presented to the District Court by the plaintiff. In the findings of fact set forth by the District Court, the following finding was made:

“4. That the defendant was ordered to pay the sum of $400.00 a month as and for maintenance of the plaintiff commencing the 1st day of October, 1.974. That the defendant made all of said payments as required and made all the payments through 1978 and in fact overpaid the plaintiff as follows: That for the year 1979 the defendant paid the sum of $1,400.00 before becoming ill. That through the years, 1974 through 1978, the defendant had overpaid alimony in the amount of $4,153.00.”

No conclusion of law is ever drawn from this specific finding. The District Court’s only conclusion of law regarding maintenance on the part of the defendant is entirely prospective. The conclusion reads:

“4. That there are material changes in the circumstances of the defendant’s ability to pay and that the defendant shall no longer be required to pay the maintenance to the plaintiff.” (Emphasis added.)

[292]*292From this conclusion, the District Court rendered the following order regarding maintenance:

“IT IS HEREBY ORDERED that the defendant is no longer responsible for the maintenance of the plaintiff herein.” (Emphasis added.)

It is apparent from this order that the maintenance spoken to is future maintenance, not past maintenance.

The District Court made no conclusions with respect to accrued maintenance under the decree. No final judgment has been rendered. Such a determination is necessary before this Court is empowered to review. As a result, this issue must be remanded for further proceedings and final adjudication.

The second issue presented on appeal stems from the District Court order that “. . . the defendant is no longer responsible for the maintenance of the plaintiff ...” This order was based on the District Court’s conclusion of law that “. . . material changes in the circumstances of the defendant’s ability to pay [maintenance] ...” existed.

This order and conclusion resulted from the District Court’s following findings of fact:

“5.

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Nyquist v. Nyquist, 631 P.2d 721, 193 Mont. 288, 1981 Mont. LEXIS 786 (Mo. 1981).

631 P.2d 721 (Nyquist v. Nyquist) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

State Ex Rel. Raw v. City of Helena
363 P.2d 720 (Montana Supreme Court, 1961)