*1 RE IN THE MARRIAGE OF MEASE,
ROBERT Appellant, and Petitioner MEASE, BRENDA Respondent Respondent. No. 02-580. August
Submitted
Briefs
2003.
Decided March
For Respondent: Robyn Firm, PLLC, L. Weber Law Helena.
JUSTICE Opinion WARNER delivered the Court. (Robert) Robert appeals Mease from an order of the Eighth ¶1 Court, County, Judicial District Cascade regarding his maintenance (Brenda). obligations to his ex-wife part Brenda Mease We affirm in and reverse in part. We following appeal: address the
¶2 issues 1. Did holding the District Court err in Brenda was entitled to ¶3 pre-dissolution, temporary support payments maintenance and child given the later settlement between parties? the 2. Did holding the District Court err in Robert’s maintenance ¶4 obligation was on his of his based before tax income instead after tax income? 3. Did the credit District err when failed to Robert’s
¶5 he obligation expenses with incurred? subjecting salary in to 4. the Court err Did satisfy to his maintenance wage withholding in order
automatic obligation? attorney fees? awarding err in 5. Did the District Court
I. AND PROCEDURAL BACKGROUND FACTUAL They daughters. in had two Robert and Brenda married By marriage, Brenda worked in the home. During majority oftheir retained a house in Great Falls and parties lived in of another residence in Connecticut. ownership At February petitioned marriage. Robert dissolve already petition, daughters had reached the time of his one of the proceedings, majority. During pending dissolution age support and child parties temporary stipulated agreement provided provide daughter. and the minor This for Brenda for maintenance and child pay per month to Brenda that Robert stipulation adopted final through entry of a decreе. by the signing as of the date of an order the court effective as mortgage payments on both parties May in 1996. Brenda made out the Connecticut residence Great Falls residence and payment. Robert pending, were still proceedings While the dissolution 1997, Brenda In March making temporary payments.
ceased contempt failure to make motion to hold Robert in for brought a for June, the motion payments. In the court denied payments. Robert then contempt to make the but ordered Robert However, July making he ceased brought his current. to enforce did not make another motion payments again. Brenda agreed During period, same time temporary payments. goal, up for sale. the Connecticut residence Towards put property make the $12,000 to needed to gave repairs he would Brenda that informed September marketable. fulfilling temporary maintenance money consider and he believed receipts repairs for the given she had not him any repairs. did not make she into a entered *4 In October debts maintenance, of their support, child division
regarding that among things other Robert provided agreement and assets. This youngest daughter monthly until their pay support child would $825 maintenance pay Robert would majority. provided It also reached remarried, a percentage calculated as turned 62 or Brenda until she any earned. The of his income minus income Brenda settlement agreement party past also released each from and current claims and attorney provided agreement incorpоrated fees. The was into the entered the court dissolution decree later month. entered, After the decree was Robert maintenance first
payment but then failed to make additional maintenance payments. support payments Robert continued to make child until youngest daughter graduated high their school in June 2000. 2001, comply Brenda filed a motion to force Robert to with his obligations. sought temporary maintenance maintenance signed, regular due from before the settlement monthly payments due agreement, under settlement and attorney fees. Robert asserted that he was not obligated pay temporary maintenance because was released from claims by such the settlement already paid because he had Brenda. He also asserted he did regular give proof because Brenda did not him wages of her to subtract from expenses his payment and because of he incurred to her due actions. Finally, he disputed how the was to be calculated under the wording agreement. settlement While income, believed amount was to be 15% of tax before argued Robert the amount was to be of after tax income. In 15% testimony of her position, expert Brenda introduced public certified accountant regarding meaning of certain terms in agreement. receiving After testimony and evidence from the parties, court points found Brenda’s favor on all her and awarded all the sought. Although maintenance she a judgment court not enter amounts, appropriate for the its order indicated Brenda was entitled through July maintenance and the maintenance due attorney 2002 and all fees and costs. The court also held that due to his repeated fulfilling responsibility, resistance to his maintenance wages subject withholding were to be to wage starting in August 2002. now appeals. Robert Further details are discussed below.
II. DISCUSSION in adopting asserts the District Court erred Brenda’s offact proposed findings and conclusions oflaw verbatim.
have often noted such an action is not error in and of itself. In re Marriage 276 Mont. of Stufft Rather, the the order on must show that the party disputing appeal *5 234 or the by evidence that findings supported were not substantial
court’s at that 276 Mont. Stufft, a conclusion of law was incorrect. court made 457, 916 argument must be considered P.2d findings those and conclusions. specific in his with disputes relation to arguments makes specific we turn to the Accordingly, appeal.
ISSUE ONE pre- holding in Brenda was entitled to Did the District Court err ¶16 given dissolution, temporary support payments maintenance and child the agreement parties? between the later settlement $9,000 awarding the District Court erred in Robert asserts July, September payments August, in temporary maintenance in the the released each other from such claims 1997 because agreement. argues already paid through the He her settlement also $12,000 check. the of the release did plain language apply Brenda asserts Marriage She In re temporary payments. maintenance cites of (1988), 518, her of 230 Mont. 749 P.2d
Halverson stipulation agreement the settlement must mention the argument that temporary maintenance in order for previously regarding entered atrial court argues maintenance to be waived. She also that temporary temporary payments has discretion award retroactive (1993), 188, 849 In Marriage re 257 P.2d 161. Spence under In Mont. addition, repairs made Brenda asserts she repairs she prove that cannot these Connecticut house and she payments cash to contractors without agreed and Robert to make receipts “under table.” order, language its Court held that release final liability for Robert from agreement
in the settlement did not excuse agreement did not because the temporary payments until final required payments or that it stipulation mention the stipulation simply The court held decree was entered. maintenance, pay temporary was to provided that Rоbert vacated, and had never been stipulation to the pursuant order entered required maintenance. that Robert had not release, with agree language reviewing After Robert from agreement released Whether the settlement Robert. is a unpaid temporary maintenance up make obligation to Heath v.Heath language ofthe contract. interpretation matter 590, 593; 40-4-201(5), MCA. Mont. agreements interpreted Such are the same as other contract in Heath, 527,901 272 Mont. at P.2d plain language controls. at 593. unpaid temporary If the release bars Brenda’s claim to the maintenance, need disputed we do not to consider the factual issue already paid whether Robert virtue of $12,000. between the states: MUTUAL Subject provisions agreement, RELEASE. to the ofthis party disсharged, each has released and herself, discharge does for himself ... release and the other *6 action, claims, and from all causes of or rights, demands whatsoever, parties in law or in which the equity, either of ever other, against except any had now has the or all cause or marriage except periodic causes of action for dissolution of for support payments child as for provided herein. language
This released from claims prior, unpaid temporary Contrary payments. emphasis to the District Court’s stipulation on the fact that vacated, the was not mentioned or the action, claims, “all rights, words causes of or demands whatsoever added], [emphasis in law or in which equity, parties either of the ever had or now has” definition temporаry includes Brenda’s claims for maintenance. Robert specifically gave Brenda notice of this dispute when sent her a letter in September telling her he would consider 12,000 temporary obligations fulfilled he gave $ check her for If still repairs. unpaid intended to claim temporary maintenance, she except had it from the “all causes language agreement. action” The District Court incorrectly interpreted require of the release that it specifically stipulation. Consequently, mention earlier the court in awarding erred to Brenda basis. assertions, Contrary to Brenda’s not require Halverson does case,
different result
In that
temporary stipulation provided
here.
[temporary]
“said
payments
continue,during
pendency
[were] to
Mont,
action.”Halverson,
231, 749
[the]
at
P.2d
521. The
at
assets, but,
then entered a farm
their
partnership agreement dividing
case,
agreement
regarding
unlike this
did not include a release
stopped
stipulated
disputed
making
claims. The husband
payments
partnership agreement
maintenance
after the
was entered.
disputed
payments
The
then
whether or not the maintenance
wife
were
due after
entered but before
partnership agreement
still
was
year
the final decree
decree
entered over a
was entered.
final
was
The District Court
partnership
after the
was made.
temporary
payments
the wife.
disputed
awarded
maintenance
holding
temporary
that the
This Court affirmed
disputed payments
husband
payments were still owed because the
entered,
that were due
payments
were due beforе the final decree
pending
plain language
while the action was still
under
Halverson,
231, 749
at
As
stipulation.
230 Mont. at
P.2d
mentioned,
case,
did
a settlement
unlike this
Halverson
not involve
disputed
from
claims.
respective parties
releasing
our
stipulation
interpretation.
in that
controlled
case
Here,
temporary
Robert does not owe Brenda
him
stipulation because she released
from this
payments under the
obligation by
agreement.
the later settlement
virtue of
with whether
distinguishable. In that case we dealt
Spence is also
modify
effective
temporary
or not a court can
retroactively
and while the action
the court enters a final decree
before
Mont,
Spence, 257
ofthe settlement he tax income because tax income rather than after based on before agreement means after tax used in the plain language believes testimony admitting argues He the District Court erred income. also because the parties intent of the accounting expert on the of Brenda’s of what the knowledge no actual expert admitted had intended. interpreted properly Brenda asserts the District
237 agreement language settlement to mean before tax income and testimony expert. of her also properly argues considered using figure income to disposable maintenance is unconscionable (1982), Marriage 315, under In re Mont. P.2d 199 649 1259. of Rowen The District Court held language “gross disposable income” meant before tax income based evidence only of how Robert calculated first and regular his payment testimony expert. and on of On this matter Brenda’s of interpretation, agree contract with Court. An ambiguity wording reasonably exists is when contract
subject
Wray
interpretations.
Compensation
two different
v. State
(1994),
219, 223,
725,
Ins. Fund
266 Mont.
P.2d
879
727. Whether an
ambiguity
a question
exists is
of
v.
Partnership
law. SAS
Schafer
(1982),
478, 482,
834,
200 Mont.
653 P.2d
When a contract
836.
term
ambiguous,
interpretation requires
is
its
question
a determination of a
SAS,
offact: the real intention of
contracting.
at the time of
482,
836;
MAINTENANCE. agrees pay Husband maintenance to Wife remarries, until dies, she attains the or age whichever occurs first. Husband monthly shall maintenance on a basis equal gross in an amount disposable 15% Husband’s income primary employment. his Gross income consists base salary any cash bonuses. Husband shall be entitled offset against amounts earned Wife in any year salary in the form of wages, commissions. added). (Emphasis that, face, “gross disposable
We hold on its the term income” is income, ambiguous gross usually means before tax income see (gross 26 U.S.C. 61 income “all income from whatever source derived”), disposable means left after usually income income deductions, payment Marriage of taxes and other see In re Bross 174, 176, (disposable 256 Mont. P.2d income *8 Therefore, at expenses). arrived after of taxes and business payment the intent properly рarties’ District Court evidence of the considered income.” “gross disposable in order define clearly hold District Court was erroneous We cannot that the Brenda’s maintenance to be based finding in intended of the evidence of Robert’s first Robert’s before tax income because income for the month of payment that himself calculated. Robert’s $1,050, $7,000. percent of is October 1997 was Fifteen is best Brenda for that month. Robert’s conduct amount he intent, contrary testimony to his though evidence of his even is Further, only parties’ at it is the direct evidence of intent trial. self-serving testimony. their intent other than individual payment that was the court’s determination disposable after tax gross tax income rather than calculated on before is erroneous. and income is based on substantial evidence evidence, makes the argues interpretation Despite and that we meaningless agreement in the “disposable” use ofthe word “gross disposable hold income” give every effect to word to should the clause is pay.” to “take-home analogous “disposable” income as used in this ambiguous “gross” in that mutually properly meanings, have exclusive context parties’ conduct. to the beyond looked Indeed, MCA, 28-3-306, proper it was for the District Court under § 28-3-306, MCA, ambiguity in Brenda’s favor. Section interpret reads: ambiguous or were are
Interpretation terms (1) If the parties. intended in a different sense different uncertain, it respect ambiguous in promise terms of a are believed, promisor in interpreted must in sense which it, it. promisee understood making time (2) intended in a of an have been When terms it, prevail that sense is different different sense other understood supposed in which he against party either provision otherwise it; of a are and when different constructions to the to be taken is most favorable equally proper, that is which made. provision in favor the was party whose of before tax case, interpretations the parties’ proposed In this 28-3-306(2),MCA, Thus, under “equally proper.” tax income are after was tax interpretation that a before the District Court’s decision the maintenance the statute because intended is accord with favor. provision made Brenda’s not consider the District Court could Finally, Robert asserts *9 testimony introduced on Brenda’s behalf to expert’s accountant However, parties. intent to the extent the court determine to testimony understand technical expert considered the court acted accounting meanings “gross” “disposable,” and Indeed, within its discretion. Robert himself introduced Barron’s dictionary “disposable definition accounting income” argument of their intent. Brenda was entitled to do the same Further, through dictionary. just rather than expert as through evidence of conduct is evidence intent indicating Robert’s 28-3-402, 30-2-208, MCA, performance, MCA; course of see § § cf. ofthe accounting gross disposable evidence technical definitions of parties’ was admissible to intent as words are show those to be usually interpreted by professionals in the understood course of usage, 28-3-502, MCA; 30-1-205, M.R.Evid.; trade see Rule § cf District MCA. properly admitted accountant’s testimony as evidence ofintent. awarding The Court’s decision Brenda based maintenance on of Robert’s before tax income 15% from 1997 the present November until is affirmed. prevails Because Brenda on this issue on the
¶35 based evidence trial, presented at need argument we not address her that using disposable income is unconscionable.
ISSUE THREE Did the District Court err it credit when failed to Robert’s he expenses with incurred? Robert asserts he should be credited for the additional $11,000 he spent repairing on the Connecticut order to it get house sold, money he expended after the final decree was entered and after $12,000 given complete he had to the work. Because the parties agreed in the settlement net split proceeds on house, argues the sale of the Connecticut he he is entitled to сredit for expense. argues He entitled also he is to credit for additional marriage interest he was on charged loans unrelated to their because the mortgage Brenda defaulted on on the Great house after the Falls final decree hurt thereby rating. was entered his credit Robert is either asserts not entitled to credit for of these She out that expenses. points mortgage she defaulted on the stopped and that fact paying spent Robert she in her gave repairs Robert on to the Connecticut house. District Court concluded that Robert was entitled credit for payment attorney the October made and fees and party disputes lost. Neither for an earlier motion that Brenda costs apparently the court determined these credits. also crеdits because Brenda some was not entitled additional the Connecticut house until was sold. mortgage payments of the record, the result reached reviewing agree After with expenditures on the Connecticut Regarding the District Court. split house, agreement clearly parties were to the settlement reads interpretation, Therefore as a matter of contract proceeds.” “net expenses are entitled incurred on sale both proceeds sale. The Connecticut house before the division by the to enable the sale expenditures determination ofrelative by the District Court which we do not disturb finding was a of fact 459, 916 P.2d at 770. Stufft, unless it is erroneous. Mont. and Robert made The court in effect determined that Brenda approximately equal expenditures when it found that Brenda *10 repairing the house and Brenda’s spend some of divorce payments mortgages during pending continued on both finding erroneous and proceedings. District Court’s was a for this Robert is not entitled to credit amount. good credit due to the default on the Regarding Robert’s loss of again, the settlement mortgage, language
Great Falls house
of
Mont,
Heath,
controlling.
ISSUE FOUR subjecting salary Did the Court err in Robert’s to District wage withholding satisfy automatic in order obligation? that Regarding payments the continued maintenance would come future, history
due in the District Court found that “has a ignoring his maintenance until the Court orders him the court present “[a]ll it.” ordered obligations should be via wage withholding order.” subjecting Robert asserts the Court erred in his income because, wage withholding to automatic support, unlike child mechanism is judgment not allowed for maintenance until there is a amount, past execution, garnishment. for a due Robert further produce asserts Brenda failed to credible evidence that she has years had no income in the intеrvening and that is entitled to her deduct income from his under the of the settlement agreement. He argues what evidence she did produce not credible because she able to live on no maintenance from him and no from wages increasing savings. income while still her He also asserts the District Court erred in she finding that is disabled she introduced no medical evidence her position. eventually Brenda asserts that because the District could wage withholding garnishment order as a if she were execute Robert, judgment against given court’s action was not in err undisputed history to make payments. failure She also *11 argues findings regarding court’s of fact her lack of income and inability to supported by work were substantial evidence. Although the District Court did not cite statute giving
authority subject wage to withholding, Robert’s income to we hold that MCA, authority. 40-4-207, the court had such a Under trial court § may person order a paying assign part maintenance to his or her MCA, periodic earnings. 40-4-207, Section reads: Assignments. may person obligated The court pay order to support assignment part or maintenance to make an of a of his periodic or to earnings person trust income entitled to receive payments. assignment The is binding employer,
trustee, upon after payor or other of the funds weeks service payor that it has been made. The shall withhold him of notice person obligated earnings payable from the or trust income to assignment to amount in the shall support specified The person specified to the the order. transmit exceeding a may payment $1 from each sum not payor deduct discharge An shall not or employer for costs. reimbursement a or employee wage salary an as a result of discipline otherwise authorized section. assignment that the statute The Note to this section states Commissioners’ assuring obligations for “provides an additional method of be when due.” The Commissioners’ Note and maintenance will met analogous is to also indicates statute’s mechanism garnishment. 40-4-207, MCA, permits addresses maintenance and Section Further, repeated Robert’s
trial court to ensure its orders are followed. an past proper grounds maintenance in the is order pay failure to 40-4-207, MCA. assign him to under requiring wages payments, aid of order Brenda’s future regarding its require assign part to Robert to his power District Court had subject wage withholding. wages and in effect his income to automatic automatic subjecting order Robert’s income to The District Court’s required assign in that is to 15% wage withholding is affirmed Robert above, earned income, when gross periodically of his as defined shall so through employer. to his District Court notice order on remand. subject withholding, arguing wages should be under the he is an offset for Brenda’s income
also asserts entitled to We he is entitled to offset agreement. agree terms of the settlement salary, “wages, under the terms of the for Brenda’s argument, in order address this commissions.” must obligations maintenance and future past separately. considered given past obligations, Robert asserts Regarding the trial, is past oflack of income not proof at Brenda’s
evidence submitted no maintenance to live on no income and credible was able because she he does not have argues therefore from him. Robert unless the finding offact to District Court’s maintenance. We defer at 770. Stufft, 276 Mont. finding is erroneous. judge to observe Further, position court in the best the district guess the district therefore, not second credibility, “[w]e will witness
243 regarding strength weight conflicting court’s determination testimony.” (1995), 486, AA Co. Mont. Corp. Double v. Newland & 273 138, past 905 P.2d 142. The court that Brenda had no found finding income. is on testimony This based from Brenda which serves Therefore, as substantial for the court’s as to past evidence decision. due, already determined the District Court has that the offset to Robert’s for Brenda’s income is zero and affirm. maintenance, future Court Regarding did address light wage how offset was to be calculated in of Robert’s Instead, аssignment. was simply court found Brenda unable finding to work. Robert asserts this is not Brenda credible because disability. disagree. not submit sufficient evidence of medical We This finding testimony is based on from Brenda which serves as substantial for Again, evidence the court’s decision. we do not reverse a trial Mont, court’s fact is finding Stufft, unless it erroneous. 276 at agreement applies settlement to Brenda’s commissions,” “wages, salary, words, other income earned from working. arrangement, against maintenance, This for offset was parties. may cumbersome, entered into it ofthe While be unconscionable, it is not pursuant ordered the District Court the original agreement, and it will be enforced. Robert required payments by shall make the wage assignment previously as Then, annually, discussed. or if Robert petition choosеs court to arrange interval, some other Brenda shall advise him all wages, salaries, and appropriate commissions she earned and the offset can necessary, be made. If procedures provided by the enforcement law are applicable. Finally, specific we note that the District did not a enter judgment Rather,
final regarding past amount due maintenance. court stated it would judgment issue later after Robert had necessary information. entry furnished income Thus we for remand an appropriate judgment. Although wage withholding asserts immediate
may
place
past
take
for these
due
under the garnishment
amounts
25-13-614, MCA,
executing
statute codified at
rather than first
on a
judgment,
interpretation of the
is in
import
her
this statute
error.
garnishment
wages
While she is correct that
this statute allows
obligations,
for
it does not excuse the need
execute on
judgment
either a
or an order
White v.
garnishment
before
allowed.
(judgment
past
White
Mont.
FUTURE herein, enforce, modify, any contained interpret provisions court, suit, attorney’s fee a cost shall award a reasonable of party. successful MCA, 40-4-110, enforce because we provision This controls over § Heath, any 272 Mont. at agreements like other contract. 527, 593; 40-4-201(5), prevailed MCA. P.2d at Because 901 Court, normally entitled to fees under in the District she would be contract term. contract attorney awаrd of fees in a general rule is fee proof may from which a reasonable requires
action introduction of provide payment for of though the contract terms be determined even (1975), 168 Corp. Mont. Georgetown afee. Crncevich v. Recreation 119-20, determine the reasonableness of P.2d 59. In order to 541 (1) character of the fees, the amount and a trial court reviews: (3) (2) labor, time, involved; rendered; and trouble services were in which the services importance litigation character and of (4) property value of the rendered; money the amount of or the (6) (5) for; called affected; professional experience skill (7) standing profession; in their attorneys’ character and Janke attorneys. Swenson v. by the services of results secured sum, attorney 354, 361, for (1995), 908 P.2d 682-83. 274 Mоnt. court, type proof to be a trial there must be some of of fees awarded amount and reasonableness introduced into the record counsel. The record no the amount a reasonable proof contains of of fee. its the District abused discretion when failed to attorney awarding assess reasonableness Brenda’s fees before her held in “all” fees. As we First Sec. Bank v. Tholkes 422, 429-30, 1328, 1332-33, Mont. without evidence court, attorney the above introduced in factors the district the award improper. fees was We remand the to the trial for a proper issue court determination of fees.
III. CONCLUSION incorrectly Because the District Court interpreted release agreement, portion in the settlement we reverse that awarding order We maintenance. affirm рart of the order Robert to directing base his maintenance payments on of his before tax income court properly 15% because the the parties’ part found intent. We affirm that order denying repairs Robert credit for on the Connecticut residence findings court’s issue were on based substantial *14 the evidence. We affirm denial of credit to Robert for increased the cost two due of loans he secured to Brenda’s failure to remove him from the mortgage on the Great Falls residence because he failed to introduce proof. the proper subjecting We affirm order income to wage withholding require assign and remand to the court to to Robert 15% his before periodic earnings Finally, of tax to Brenda. in this instance awarding attorney we remand that of the part order Brenda fees for a of proper pay determination fees. Both are to their own fees appeal. entry judgment and costs on We remand for of with consistent Opinion. this
JUSTICES REGNIER and RICE concur. concurring dissenting. JUSTICE COTTER and 3, 4, 2, I concur disposition in the Court’s of Issues and 5. I respectfully disposition dissent from the of 1. Court’s Issue the District reversing Court’s conclusion that $9,000 support entitled to receive the sum of in and temporary maintenance, Court appears relegate binding to Order of the issuing court requiring per Robert to month “pending disposition entry of this of proceeding, through the a final secondary decree ...” applies governing to status. The Court the law interpretation contract that the property of a to conclude settlement out an wiping the had the effect оf entered between order. I previously imposed upon pursuant to court wrong.
find this conclusion 40-4-121(9)(b), MCA, a of temporary to order According upon order of the court or when support maintenance or “terminates and, the case of a ... voluntarily temporary the is dismissed in petition order, of the ....”The District support upon entry decree of dissolution and temporary support, an order maintenance and Court entered of entry in until that the order remain effect the specifically stated would above, the such an order of a final decree. Under statute noted order the decree or continues effect until further of court dismissed, otherwise, is petition voluntarily unless first which not occur here. important is to note that the settlement property It that, by speсify Decree did
incorporated into court’s Final and language, delinquent support general virtue of release approved When it obligations would be eliminated. agreement, the found that property final District Court It is provisions equitable.” document were “fair and clear of Law at issue here Findings court’s Fact Conclusions “fair and contemplate finding the court did not document wiped out would be equitable” support that its Order contained in document. When general release an to the Decree apparent gave interpretation became that Robert to intend, Decree so as interpreted did not the court court This the court its and maintenance. reinforce earlier Order clearly permitted do. 215 Mont. Marriage In In re Cannon authority judgment has tо amend its that a district court held decided, originally the relief actually grant reflect what was fashion, judicial errors in intended. The court cannot correct parties; it can exercise such rights alter substantive Cannon, 215 actually decided. authority only express what the court Mont, in terms of Although not framed 697 P.2d at the intent of clarifies judgment, appeal the court’s Order amended *15 parties: agreement of in the settlement approving court requiring from its earlier Order not to release Robert court did intend Final entry of the maintenance until him and pay support Decree. of review applied an erroneous standard the Court has I believe
¶66 interpretation one of not be question issue. The should to this contract, ofwhether the District abused its discretion but rather Court I interprеting in its own Order and Decree as intended. would conclude discretion, and affirm the there was no abuse would District Court’s decision that Brenda was entitled to receive the and of a subject pre-dissolution that were the court Order. I dissent. therefore GRAY, part
CHIEF concurring dissenting JUSTICE in part. opinion I concur in the as except Court’s to issue which is
correctly as subjecting stated whether District Court erred in salary wage withholding Robert’s satisfy automatic order to his obligation. I opinion dissent the Court’s on that entirety, issue in its and would reverse the District Court. quote The Court’s from the Disti’ict Court’s order this issue on
correct; “present the trial court ordered obligations be paid wage withholding Sadly, should via very order.” little the Court’s subsequent wage withholding discussion any relationship issue bears to the case us. before In the Court trial did properly ¶ notes that the court not cite specific authority correct, for its wage withholding decision. While Court’s statement is irrelevant requirement because no exists that a court trial do so. The remainder of subsequent paragraphs-upon 47 and which ¶
the Court its bases decision that the District Court did err in not this regard-are laced with error. Rather issue than address the presented to us both to this appeal, Court ¶ 40-4-207, MCA, “discovers” and holds-on that the District § basis-that with problem approach not err. is that the Court done by locating has extra work Brenda’s behalf this statute and Neither premising party its decision thereon. raises this statute for the consideration; Indeed, Court’s nor did Brenda it in the trial raise court. require assign the District Court did not Robert to under income § 40-4-207, and, required MCA. The trial court under wagе withholding thereto, reading rational trial court the statute related doing erred in so. arguments The Court never addresses authorities Instead, MCA, 40-4-207, presents. sponte sua introduces into this result would appeal, apparently because it does like the which necessary parties’ taking if it relied on arguments. Brenda, I approach, submit the Court has become advocate and has violated Robert’s due process rights. *16 It objectionable statements in 48. ¶ Court makes additional The proper to maintenance “is failure repeated
states 40-4-207, wages under assign him to grounds requiring for an order true, clearly require did not may MCA.”This be but District Court statute; to the “assignment” wages pursuant of Robert’s withholding.” two not the “wage to are subject Robert’s income case, same, retry here is to and the effеct of the Court’s decision correct decision-notwithstanding its reformulate the District Court’s “wage withholding”-and decide on relating ofthe issue as to statement 40-4-207, MCA, in this case. applies its own that § power” the trial court “had The Court also states that the trial court wage assignment by again; True but require a Robert. do so. did not decision, permits which Brenda to I from the Court’s dissent on addressing appeal the actual basis of Robert’s
prevail without ever on feel like practice If a “when we this issue. this is be Court’s basis, it an enormous it,” miss,” we can” does “hit or “because If only few-cases. particular in certain-but disservice on practice deciding appeal, cases general is to be the Court’s generally doing courts taking will and trial cases appeal-to theory presented or not the our own research-whether liking. part I will not be which are more the Court’s reach results it.