Marriage of Pearson, In re, 97-657
| Citation | 965 P.2d 268,291 Mont. 101 |
| Decision Date | 29 September 1998 |
| Docket Number | No. 97-657,97-657 |
| Parties | , 1998 MT 236 In re the MARRIAGE OF Thomas Edward PEARSON, Petitioner and Respondent, and Debra Kay Pearson, Respondent and Appellant. |
| Court | United States State Supreme Court of Montana |
Richard A. Reep, Reep, Spoon & Gordon, Missoula, for Respondent and Appellant.
Dexter L. Delaney, Brian L. Delaney, Mulroney, Delaney & Scott, Missoula, for Petitioner and Respondent.
¶1 The marriage of Thomas Edward Pearson (Tom) and Debra Kay Pearson (Debra) was dissolved on November 16, 1994, pursuant to the Findings of Fact, Conclusions of Law, and Decree entered by the Twenty-First Judicial District Court, Ravalli County. In entering the Decree, the court incorporated by reference a Marital and Property Settlement Agreement (Agreement) entered into by the parties on October 17, 1994, and an addendum to the Agreement entered into on November 15, 1994.
¶2 On April 16, 1996, Debra moved the court to modify the provisions of the Decree relating to spousal maintenance and child support. While these motions were pending, Tom moved the court to enforce and modify the provisions of the Decree relating to visitation. On May 23, 1997, the District Court issued its Findings of Fact, Conclusions of Law, and Decree deciding all motions in favor of Tom and awarding Tom attorney's fees and costs. Debra appealed. We affirm.
¶3 We restate the issues as follows:
¶4 1. Did the District Court err in denying Debra's motion to modify the maintenance provision of the dissolution decree?
¶5 2. Did the District Court err in denying Debra's motion to modify child support?
¶6 3. Did the District Court err in granting Tom's motion to enforce visitation?
¶7 4. Did the District Court err in granting Tom's motion to modify visitation?
¶8 5. Did the District Court err in not addressing whether Tom violated the Agreement by failing to maintain or provide proof of life insurance coverage for the benefit of the children?
¶9 6. Did the District Court err in awarding Tom attorney's fees and costs?
¶10 Tom and Debra married in November 1980. They had two children, Jennifer and Jonathan. Tom and Debra together built and operated Pearson Logging. Although Tom was the principal financial provider and Debra was the principal caretaker of the children, Debra was involved with Pearson Logging on a day-to-day basis. She not only kept the books of the business, but also prepared financial statements for the purpose of securing loans. Aside from her work at Pearson Logging, Debra briefly held jobs as a waitress and a fire-fighter.
¶11 After fourteen years of marriage, Tom and Debra decided to divorce. To save time and money, Tom and Debra themselves negotiated a settlement, rather than seek independent counsel. They discussed the issues of property distribution and custody, visitation, and support of the children, and made a "list" memorializing all to which they had agreed.
¶12 With list in hand, Tom and Debra hired an attorney to draft a settlement agreement and file the petition for dissolution with the court. The attorney testified that he represented Tom and Debra jointly. He testified that when Tom and Debra consulted him, they did not seek legal advice in obtaining a different property distribution, but simply asked him to draft a document reflecting their negotiated settlement. At that time, some details, such as allocation of the children's health insurance costs and uncovered medical expenses, had not been decided. After meeting with the attorney, the parties finally reached an agreement as to all issues pertaining to the dissolution. The attorney ¶13 The Agreement provides that each party has entered into it voluntarily, with full knowledge and understanding of its consequences, and full disclosure of assets. The Agreement provides that the parties have entered into it free from fraud, duress, coercion, or unfair persuasion or domination of either party by the other or by any other person. The Agreement provides that it shall fully and finally settle all rights, duties, and obligations of the parties as set forth therein. The Agreement also provides that each party releases and discharges the other from further obligations.
drafted the Agreement and the parties signed it on October 17, 1994. The attorney filed the petition for dissolution shortly thereafter.
¶14 Regarding the marital property, the Agreement provides that Tom receives everything on "Exhibit A," including three parcels of real property; two mining claims; and Lots 1 and 4 of the Lost Trail Cabins subdivision. Debra receives everything on "Exhibit B" including the family home and real property in Stevensville; Tom's interest in a contract for deed for the sale of certain real property; Lot 1 of the Sunny Estates subdivision; and Lots 2 and 3 of the Lost Trail Cabins subdivision. Prior to consulting with the attorney, Tom and Debra negotiated an equitable division of the remaining assets including their logging business, vehicles, camper, snowmobiles, and other personal property. The Agreement only makes general reference to these items and provides that each party is the sole and exclusive owner of those items presently in his or her possession. The Agreement also provides that each party is responsible for the liabilities associated with the assets he or she is awarded. Exhibits produced at trial showed that Tom received a total asset distribution worth $305,500, and Debra received a total asset distribution worth $385,710.
¶15 Regarding spousal maintenance, the Agreement specifically provides that, having considered the factors set forth in § 40-4-203, MCA, neither party shall be entitled to maintenance.
¶16 Regarding the children, the Agreement provides that Tom and Debra have joint custody, that Debra is the primary residential custodian, and that Tom has "liberal" visitation. The Agreement provides that the proceeds from the sale of lot 2 of the Sunny Estates subdivision will fund child support for the children. Pursuant to the contract for deed for the sale of this parcel, the buyer makes monthly payments of $437.86 over 15 years into escrow. The Agreement requires the escrow agent to deliver each monthly payment to Debra as primary residential custodian of the children. In the event Tom is designated primary residential custodian, the escrow agent is required to deliver the payment to Tom. If the parties eventually have split custody of the children, the escrow agent is required to deliver half of the payment to Tom and the other half to Debra. The Agreement acknowledges that payments are scheduled to continue several years after the children reach the age of majority, and provides that the monthly payments will be disbursed to the children even after the age of majority.
¶17 For purposes of comparison, the parties completed child support financial affidavits and figured that pursuant to the Uniform Child Support Guidelines(Guidelines), Tom's child support obligation would be $82.50 per child per month until the children reached the age of majority. This child support obligation was based in part on Tom's annual income reported as $16,000. Both Tom and Debra thought that their proposal of funding child support with the contract receivable payments was an "excellent idea" as it provided more money to the children for a longer period of time than is required under the Guidelines. Further, the payments would be a steady, reliable source of income, independent of Tom's wage-earning ability.
¶18 Initially, the Agreement provided that each party would alternate paying the children's monthly health insurance premiums, and that each party would be responsible for half of the uncovered and deductible sums incurred on behalf of the children. However, an addendum to the Agreement entered into November 15, 1994, changed this provision. Now, Tom pays Jennifer's health insurance coverage and Debra pays ¶19 Regarding modification, the Agreement provides that, except as provided in § 40-4-201(6), MCA, the provisions of the Agreement, and the Decree of Dissolution into which the Agreement is incorporated, may not be modified or amended without the parties express written consent. Lastly, regarding attorney's fees, the Agreement provides that should any action be commenced to enforce, modify, or interpret any of its provisions, the court shall award a reasonable attorney's fee to the prevailing party.
Jonathan's coverage. The provision regarding unpaid and deductible sums remains unchanged. With respect to Tom's life insurance, the Agreement provides that Tom shall continue to name the children as primary beneficiaries.
¶20 Soon after the dissolution became final, the parties experienced problems with visitation and child support. Visitation between Tom and the children proved to be troublesome. Debra testified that Tom spent less time with the children because he did not have the time or the room for them. Debra testified that the children did not want to visit their father because they did not like his new girlfriend. Debra testified that Jennifer did not want to visit her father because she did not like going into the woods, and that Jonathan often "came home unhappy" after visiting his father.
¶21 Tom testified that Debra turned the children against him and was the real cause of the visitation troubles. Tom testified that he made several attempts to see the children, but that Debra refused to allow the children to see him. He testified that Debra wrongfully advised school officials that he was not allowed to visit the children in school.
¶22 Because the "liberal visitation" provision of the Agreement proved not workable, Tom filed a motion to modify the Agreement and requested the court to set a visitation schedule with the children. After a hearing on the issue, the parties reached an agreement concerning a visitation schedule. The court incorporated this...
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