Harris v. Harris, 80-20

• Decision Date: 25 September 1980
• Docket Number: No. 80-20,80-20
• Citation: 616 P.2d 1099,189 Mont. 509,37 St.Rep. 1696
• Parties: In re the Marriage of Warren Kirk HARRIS, Petitioner and Appellant, v. Della Mae Strothman HARRIS, Respondent and Respondent.
• Court: Montana Supreme Court

Page 1099

616 P.2d 1099

189 Mont. 509

In re the Marriage of Warren Kirk HARRIS, Petitioner and Appellant, v. Della Mae Strothman HARRIS, Respondent and Respondent.

No. 80-20.

Supreme Court of Montana.

Submitted on Briefs Aug. 14, 1980.

Decided Sept. 25, 1980.

Morrow, Sedivy, Olson & Scully, Bozeman, for appellant.

Bolkovatz, Romine & John F. Bell, Helena, for respondent.

HARRISON, Justice.

Warren Kirk Harris appeals the decision of the District Court of the Eighteenth Judicial District, Gallatin County, awarding property to his wife, Della Mae Harris, upon a finding that their property settlement agreement was deficient.

On January 26, 1978, petitioner filed an action for dissolution of the marriage. The matter came before the Honorable W. W. Lessley, presiding without a jury, and was completed on December 4, 1978. The following day, the parties executed and signed a settlement agreement disposing of the marital property. The agreement was approved by the District Court and incorporated into the decree of legal separation entered on December 19, 1978. The decree of legal separation was converted into a decree of dissolution on June 27, 1979. Husband petitioned the District Court for enforcement of the settlement agreement.

At the conclusion of a July 3rd hearing, the District Court entered findings of fact and conclusions of law to the effect that the agreement was deficient in two items of personal property, which the court subsequently granted to the wife. After denial of petitioner's motion to amend the findings, or in the alternative to grant a new trial, the husband appealed to this Court. We affirm.

The parties were married in Bozeman, Montana, on July 4, 1975. After serious marital problems developed between them, the Harrises executed the December 5th settlement agreement. By the terms of that agreement, the wife was deeded property near Flathead Lake and a residence in Missoula. She was to continue as co-owner with her husband of commercial real estate being leased to her husband's business. Further, she was directed by the agreement to sign a six-year lease of the real property to the business for $40,000 with the stock to be placed in escrow.

In his petition for enforcement of the agreement, the husband alleged that his wife had failed to honor the terms of their agreement by failing to sign the lease for the real property, that she had failed to direct the bank as to the disposition of the rental income, and that she had failed to complete the conveyance of her stock in the business operated by her husband. At the hearing on the petition to enforce the settlement agreement, the wife testified that she had refused to complete her obligations under the agreement because it was obvious to her that her husband, contrary to prior understanding and oral representations, was no longer going to provide her with an automobile and medical insurance coverage. She testified that there was confusion as to what in fact was agreed to under the agreement. The District Court concluded that the agreement was deficient as to the automobile and the insurance, and directed the husband to furnish the additional items.

Petitioner offers the following issues for our review:

1. Was Mrs. Harris' request for additional property made orally to the court, over six months after entry of the legal separation decree and approval of the written agreement, barred by Rule 60(b), M.R.Civ.P.

2. Was an earlier finding of the court, as to the conscionability of the agreement, res judicata as to the subsequent requests of the wife.

3. Did the District Court err in considering allegations of an oral agreement made simultaneously with the written property settlement agreement?

4. Was there sufficient evidence of the oral agreement as to provision for the automobile and medical insurance to support the District Court's findings?

5. Did the District Court err in making the grant of personal property, in addition to the terms of the agreement, without making required findings of fact, such as the net worth of the parties, as required by section 40-4-202, MCA?

Rule 60(b) of the Montana Rules of Civil Procedure recites in applicable part:

"On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:

". . .

"(6) any other reason justifying relief from the operation of the judgment."

The District Court record discloses that the husband made no objection at the enforcement hearing to the timeliness of his wife's requests. Although we recognize that there may have been a crucial issue at the trial court, the husband's failure to object makes timeliness a nonjudiciable issue on appeal. The reason for this is clear. The trial court did not have its attention drawn to the objection to which we are now directed. If the wife's requests were inappropriately made to the District Court, it is the obligation of opposing counsel to illuminate the impropriety by making an express objection to it so that the judge may resolve the issue. Error of this kind must be raised at the District Court level and may not be urged upon this Court for the first time on appeal. Kearnes v. McIntyre Construction Co. (1977), 173 Mont. 239, 567 P.2d 433; Pickett v. Kyger (1968), 151 Mont. 87, 439 P.2d 57. See also Bower v. Tebbs (1957), 132 Mont. 146, 314 P.2d 731. Without an objection there need be no ruling, and without a ruling this Court must conclude that the wife made her requests within the "reasonable time" required by Rule 60(b), M.R.Civ.P.

The District Court below acknowledged in its decree of legal separation, dated December 19, 1978, that the settlement agreement executed by the parties and incorporated into the decree was conscionable and should be approved. The husband now asks this Court to find that the District Court's finding as to conscionability of the Harris' settlement agreement is res judicata as to the issue of their marital agreement, thus barring any further requests by the wife. We do not come to that conclusion.

In Brannon v. Lewis and Clark County (1963), 143 Mont. 200, 387 P.2d 706, citing the rule of State ex rel. Sullivan v. School District No. 1 (1935), 100 Mont. 468, 50 P.2d 252, we established four criteria which must be established before a plea of res judicata can be sustained. The parties must be the same or in privity the issues must be the same, the subject matter of the action must be the same, and the relationship of the parties to the subject matter must be the same. Brannon concludes, as do we, that the most important of these criteria is that of the identity of issue. In this case there is sufficient dissimilarity as to the issues involved to make the doctrine of res judicata inapplicable.

The District Court's finding was that the agreement executed by the parties was not unconscionable, not that it was necessarily complete. The agreement disposed of the Harris' marital property but made no provision for any future support. The property disposition has no direct bearing on any contemporary agreement for obligations to be fulfilled in the future. Therefore, this Court must conclude that there is no identity of issues and that res judicata does not bar further action on any alleged agreements between the parties as to matters not involving the disposition of marital property.

Petitioner further asserts that the District Court erred in considering evidence of an oral agreement made simultaneously with the written settlement agreement. However, the record discloses that the husband made no objection during trial court proceedings to his wife's testimony about the automobile and the insurance. Once again, we must conclude that although there may have been a critical issue as to the admissibility of such evidence below, the husband's failure to raise the issue of parol evidence of the District Court forfeited any right to a remedy on appeal. Kearnes v. McIntyre Construction Co., supra. See also Massey-Ferguson Credit Corp. v. Brown (1976), 169 Mont. 396, 401, 547 P.2d 846.

It is the petitioner's position that there is insufficient evidence to support a finding that an oral agreement existed between the parties. In the resolution of this issue, we are guided by a number of well-established principles adhered to by this Court. The credibility of witnesses and the weight to be given their testimony are matters which are exclusively the province of the District Court in a nonjury case. Corscadden v. Kenney (1977), 175 Mont. 98, 572 P.2d 1234. In examining the sufficiency of the evidence we review the same in a light most favorable to the prevailing party, and we further presume the findings of fact and conclusions of law of the District Court to be correct. Rock Springs Corp. v. Pierre (1980), Mont., 615 P.2d 206, 37 St.Rep. 1378, 1384. Only if our review discloses a decided preponderance of evidence contrary to the findings and conclusions of the District Court, will we disturb the judgment of the District Court. Morgan and Oswood Const. Co. v. Big Sky of Montana (1976), 171 Mont. 268, 275, 557 P.2d 1017, 1021.

In the case at bar, we conclude that there is no preponderance of evidence contrary to the findings of the trial court. The only evidence that an oral agreement did not exist was the husband's denial that such an agreement was made. However, the husband did place a car at his wife's disposal for several months after their separation which could properly be interpreted as an action in furtherance of his obligations under the oral contract. We will not decide whether or not the District Court was correct in its assessment of the evidence before it, but we do find that the evidence was sufficient to support differing conclusions, and we are constrained to honor the judgment of the District Court.

Accordingly, we can also conclude that the findings of the District Court were based on sufficient...