In re Marriage of Delude, No. 99-456.

Docket NºNo. 99-456.
Citation2000 MT 75, 999 P.2d 306
Case DateMarch 23, 2000
CourtUnited States State Supreme Court of Montana
999 P.2d 306
2000 MT 75
In re the MARRIAGE OF Sandra Kay DeLUDE, Petitioner and Respondent, and
Randall Allen DeLude, Respondent and Appellant.
No. 99-456.
Supreme Court of Montana.
Submitted on Briefs February 10, 2000.
Decided March 23, 2000.

Kerry N. Newcomer, Geiszler & Newcomer, P.L.L.P., Missoula, Montana, For Appellant.

Jeannette Ellen Berry, Attorney at Law, Bozeman, Montana, For Respondent.

Chief Justice J.A. TURNAGE delivered the Opinion of the Court.


¶ 1 Randy DeLude moved the Eighteenth Judicial District Court, Gallatin County, to compel his ex-wife, Sandy Black, to solely assume a business loan pursuant to their divorce decree and the parties' property settlement agreement. In its findings of fact, conclusions of law and order, the District Court denied Randy's motion based on Sandy's reasonable, yet unsuccessful, efforts to remove Randy from the loan. Randy appeals; however, we conclude that this matter is not appealable.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 Randy DeLude and Sandy DeLude, now known as Sandy Black, entered into a

999 P.2d 307

property settlement agreement which was fully incorporated by reference in the District Court's findings of fact, conclusions of law and decree of dissolution. In part, the property settlement agreement provided that Sandy would acquire the parties' restaurant, known as Azteca and located in Bozeman, and also would assume the loan associated with it. The pertinent language in the agreement is as follows:

The parties agree that the business is valued at approximately $100,000. The parties currently owe $76,297 on the loan for the business with Mountain West Bank of Helena. The parties have approximately $23,703 in equity in the business.

The wife shall receive sole right, title and interest in and to the parties' business ... and wife shall solely assume the business loan, releasing the husband from all liability therefrom, and she shall indemnify him and hold him harmless from said loan.

A draft of the agreement read that Sandy "shall make every effort to" solely assume the loan and release Randy from all liability. Randy says that he struck out the words "make every effort to," initialed the change, and that Sandy also initialed the change before she signed the agreement.

¶ 3 After receiving a past due notice on the loan from Mountain West Bank, Randy filed a motion to compel Sandy to secure his release from the joint obligation. Randy also requested attorney fees and costs incurred in bringing this motion pursuant to the following language of the parties' property settlement agreement:

Should any action be commenced to enforce any provisions contained herein, the Court, as a cost of suit, shall award a reasonable attorney's fee to the successful party.

¶ 4 A hearing on the motion was held at which only Randy and Sandy...

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1 practice notes
  • Ihnot v. Ihnot, No. 99-350.
    • United States
    • Montana United States State Supreme Court of Montana
    • March 23, 2000
    ...parties agreed no oral argument was necessary. In summary, Plaintiff wishes to set aside a Judgment against him regarding real property 999 P.2d 306 dated June 17, 1996. Plaintiff admits, in paragraph 14 of the complaint that he knew of this judgment as early as July 4, 1996. Clearly, Plain......
1 cases
  • Ihnot v. Ihnot, No. 99-350.
    • United States
    • Montana United States State Supreme Court of Montana
    • March 23, 2000
    ...parties agreed no oral argument was necessary. In summary, Plaintiff wishes to set aside a Judgment against him regarding real property 999 P.2d 306 dated June 17, 1996. Plaintiff admits, in paragraph 14 of the complaint that he knew of this judgment as early as July 4, 1996. Clearly, Plain......

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