Kottas v. Kottas , 164 Mont. 30 ( 1974 )

No. 12515
I N T E SUPREME C U T O THE STATE O MONTANA
H OR F F
1973
HELEN KOTTAS ,
P l a i n t i f f and A p p e l l a n t ,
-VS -
LEO J. KOTTAS,
Defendant and ~ e s p o n d e n t .
Appeal from: D i s t r i c t Court of t h e F i f t h J u d i c i a l D i s t r i c t ,
Honorable Frank E. B l a i r , Judge p r e s i d i n g .
Counsel of Record:
For Appellant :
H a r r i s , Jackson and Utick, Helena, Montana
Vernon H a r r i s argued and J. R . Wine, Jr. argued,
Helena, Montana
For Respondent :
Leo J . K o t t a s , S r . argued, Helena, Montana
A l f r e d Dougherty argued, Helena, Montana
Submitted: November 27, 1973
Decided :FEB - 11974
F i l e d :FEB - 1 1974
M r . J u s t i c e John Conway Harrison d e l i v e r e d t h e Opinion o f t h e
Court .
This i s an appeal from t h e d e n i a l of a motion t o d i s m i s s o r
i n t h e a l t e r n a t i v e f o r a change of p l a c e of t r i a l e n t e r e d i n t h e
d i s t r i c t c o u r t of t h e f i f t h j u d i c i a l d i s t r i c t , J e f f e r s o n County.
Defendant, Leo J. K o t t a s , h e r e i n a f t e r r e f e r r e d t o a s Leo,
f i l e d a p e t i t i o n f o r o r d e r t o show c a u s e and f o r d e c l a r a t o r y
r e l i e f i n t h e form of d e c l a r a t o r y d e c r e e o r d e c l a r a t o r y supple-
mental d e c r e e , and f o r o t h e r a p p r o p r i a t e r e l i e f i n t h e d i s t r i c t
c o u r t , J e f f e r s o n County, on March 9 , 1973, praying f o r a n o r d e r
t o show cause d i r e c t e d t o p l a i n t i f f , Helen K o t t a s (McCluskey),
h e r e i n a f t e r r e f e r r e d t o a s Helen, o r d e r i n g h e r t o appear b e f o r e
t h e c o u r t and t o show c a u s e , i f any, why t h e r e l i e f prayed f o r
should n o t be g r a n t e d .
Helen f i l e d a motion t o d i s m i s s f o r l a c k of j u r i s d i c t i o n over
t h e person and s u b j e c t m a t t e r , o r i n t h e a l t e r n a t i v e , f o r change
of p l a c e of t r i a l . Hearing was h e l d on A p r i l 13, 1973, b e f o r e
t h e Hon. Frank E. B l a i r . Subsequently Judge B l a i r denied ele en's
motion and she now a p p e a l s .
The p a r t i e s were married i n 1943. O A p r i l 6, 1966, a d e c r e e
n
of d i v o r c e was g r a n t e d t o Helen by t h e d i s t r i c t c o u r t of t h e
f i f t h judicial district. That d e c r e e i n c o r p o r a t e d by r e f e r e n c e
a p r o p e r t y s e t t l e m e n t e n t e r e d i n t o between t h e p a r t i e s and which
i n p e r t i n e n t p a r t provided:
"2. *** and Lots F o u r ( 4 ) , Five ( 5 ) , S i x ( 6 ) ,
Seven (7) and Eight (8) of Block Seventeen (17)
of t h e C , W. Cannon Addition t o t h e C i t y of
Helena, Montana, s h a l l be t h e p r o p e r t y of f i r s t
p a r t y and second p a r t y i n e q u a l s h a r e s , and each
of t h e p a r t i e s a g r e e s t h a t he o r she w i l l n o t
s e l l o r encumber h i s o r h e r s h a r e i n any of s a i d
p r o p e r t y w i t h o u t t h e consent and agreement of t h e
o t h e r , and upon a s a l e of any of s a i d p r o p e r t y by
agreement, t h e n e t proceeds therefrom s h a l l be
d i v i d e d e q u a l l y between p a r t i e s . That t h e t a x
assessment s h a l l be d i v i d e d and each t o r e c e i v e
h i s o r h e r t a x n o t i c e s and each t o pay any t a x e s
o r assessments made on such i n t e r e s t , 11
On June 10, 1968, Helen quitclaimed her share of the property
to Leo, so that he could sell the property. He did so in July
1968, and remitted $12,360.25 to Helen as her one-half share after
deducting expenses of the sale. Helen alleges in August 1972,
she discovered the sale price of the property was some $53,000.
She demanded $26,500, less her proportionate share of the sale
expenses, from Leo as her share of the proceeds. Negotiations
ensued, proved fruitless, and on February 23, 1973, Helen's
attorney informed ~ e o ' sattorney by letter that a complaint to
recover the alleged deficiency would be filed on March 15, 1973,
unless a satisfactory accord was reached prior to that date.
On March 9, 1973, Leo filed the heretofore mentioned petition
in the district court of Jefferson County. In that petition
Leo alleged, among other things, that at the time the property
settlement was negotiated it was understood by the parties that
the term "net proceeds'' as used in paragraph two of the property
settlement meant the gross sale price less proper expenses of
sale and, in addition, less his investment in the property,
that is to say,what he paid for it. It was on this basis that
he paid $12,360.25 to Helen.
On the same day, March 9, 1973, the district court issued an
order to show cause directed to Helen, ordering her to appear on
April 13, 1973. On March 12, 1973, el en's attorney filed a
complaint against Leo in the first judicial district, Lewis and
Clark County. Basically she alleged that the term "net proceeds"
as used in the property settlement meant the gross sale price
less any proper expenses of the sale, hence her share of the
sale price should have been $26,500, less one-half of the sale
expenses.
In her appeal Helen characterizes the issue as a jurisdictional
one. She reasons that the failure to pay over her alleged share
of the proceeds of the sale sounded in either tort or contract
and jurisdiction properly belongs in the first judicial district.
We do not agree.
We base our holding on the distinction between actual modi-
fication of a judgment and clarification or interpretation of a
judgment. This Court in State ex rel. Kruletz v. District Court,
110 Mont. 36, 41, 98 P.2d 883, said:
he test is whether on the one hand the change
will make the record speak the truth as to what
was actually determined or done, or intended to
be determined or done by the court, or whether,
on the other hand, it will alter such action or
intended action. 1 1
See also: State ex rel. Vaughn v, District Court, 111 Mont. 552,
111 P.2d 810; Morse v. Morse, 116 Mont. 504, 154 P,2d 982; State
ex rel. Truax v, Town of Lima, 121 Mont. 152, 193 P.2d 1008.
The above cited cases deal with the types of error now taken
care of by Rule 60, M.R.Civ.l?., such as the entry of a wrong
date, or failure to include a party in an order.
The instant case does not present such a clear cut case of
scrivner's error, or inadvertent omission; nevertheless we
think the problem is of such a nature that the court rendering
the decree should take jurisdiction to resolve the issue. Such
a resolution will not change the rights of the parties as set
forth in the original decree, rather it will be a further declara-
tion and amplification dwhat was originally held.
In 27B C.J.S., Divorce, § 300(4) ( ) it is said:
a,
I IThe interpretation or clarification of an ambiguous
judgment does not involve amendment thereof, so that
even though power to modify is lacking, a court may
construe and clarify a decree disposing of property,
or enforce it. II
That application is exactly what is called for in the instant
case. Murphy v. Murphy, 64 Nev. 440, 183 P.2d 632; Grenz v.
Grenz, 78 Nev. 394, 374 P.2d 891; Stieler v, Stieler, 244 Minn.
312, 70 N.W.2d 127; Palmi v. Palmi, 273 Minn. 97, 140 N.W.2d 77;
Mitchell v. Mitchell, 307 Mich. 366, 11 N.W.2d 922; Walker v.
Walker, 327 Mich. 707, 42 N.W.2d 790; Harbin v. Harbin, 12 Mich.
App. 320, 162 M.W.2d 822.
Therefore, t h e d i s t r i c t c o u r t of t h e f i f t h j u d i c i a l d i s t r i c t
p r o p e r l y took j u r i s d i c t i o n t o c l a r i f y t h e ambiguity i n ' t h e
p r o p e r t y s e t t l e m e n t i n c o r p o r a t e d by r e f e r e n c e i n t o t h e d i v o r c e
decree.
Judge lair's o r d e r of d e n i a l i s a f f i r m e d .
i IZJe Cbncur: F
u -a-'.Ld
Chief J u s t i c e
Justices.