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In re Marriage of Buck

Supreme Court of Montana

April 11, 2017

IN RE THE MARRIAGE OF:SUSAN K. BUCK, n/k/a SUSAN K. LARSON, Petitioner and Appellant, and ALAN R. BUCK, Respondent and Appellee.

          Submitted on Briefs: March 15, 2017

         APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DR 87-425(A) Honorable Amy Eddy, Presiding Judge

          For Appellant: Susan K. Larson, self-represented, Kalispell, Montana.

          For Appellee: Peter F. Carroll, Attorney at Law, Kalispell, Montana.



         ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

         ¶2 Susan Larson appeals the District Court's order terminating the assignment to Susan by Alan Buck, her former husband, of his interest in certain payments and requiring her to repay him for a portion of the assigned payments. We affirm in part and reverse in part.

         ¶3 Susan and Alan entered into a Property Settlement Agreement as part of the couple's 1991 divorce. The Property Settlement Agreement was incorporated into the dissolution decree. The parties have a daughter, who was three years old when they entered into the Property Settlement Agreement. Prior to their divorce, Susan and Alan entered into a structured settlement agreement with a third party under which the couple received $500 per month for their lifetimes.

         ¶4 Under the Property Settlement Agreement, Alan assigned his $250 monthly share from the structured settlement to Susan. The Property Settlement Agreement provided that the assignment served as a credit towards his child support obligation. The Property Settlement Agreement established also that this assignment would continue as long as the couple's daughter remained in school. When she finished school, Alan again would be entitled to the $250 settlement payment.

         ¶5 In April 2016, Alan filed a motion to re-open the case and for a show cause hearing to terminate the $250 assignment to Susan. The District Court scheduled a hearing for May 10, 2016. The day before the hearing, Susan's counsel filed an unopposed motion to vacate the show cause hearing and to set a contested case hearing. For reasons that do not appear in the record, the show cause hearing was not vacated and occurred as scheduled. Because Susan was out of the state, she was not present at the hearing. But Susan's counsel was present, along with her current husband. Both Susan's husband and Alan testified at the hearing. Susan's husband testified that her daughter graduated from Montana State University in 2011 and that she was presently enrolled in a one-year online program to complete her graduate degree in accounting.

         ¶6 The District Court issued an order concluding that Susan was obligated to inform Alan when their daughter graduated from college in 2011, which she did not do. The court concluded further that the Property Settlement Agreement required Alan to pay child support while his daughter was in the graduate program, but not during the five interim years after she graduated from college and before she started the graduate program. The court therefore determined that Alan's obligation under the Property Settlement Agreement ended in 2012. It ordered Susan to reimburse Alan $12, 000-the amount paid pursuant to the Property Settlement Agreement from June 1, 2012, through May 21, 2016. The court ordered further that the assignment was terminated immediately. Susan appeals.

         ¶7 Appearing pro se on appeal, Susan argues that the District Court violated her due process rights because she did not receive adequate notice of the hearing, the court held the hearing without her present, and the court failed to grant her unopposed motion for a continuance. Susan argues also that the District Court erred by failing to recognize an alleged oral agreement between the parties. Under the oral agreement, Susan contends, Alan promised to permanently assign his share of the settlement payment to Susan in exchange for him not having to provide her with additional financial assistance.

         ¶8 The essential elements of due process are notice and the opportunity to be heard. In re Marriage of Fishbaugh, 2002 MT 175, ¶ 15, 310 Mont. 519, 52 P.3d 395. The record demonstrates that Susan had notice of the show cause hearing, that she was represented by counsel at the hearing, and that her husband testified on her behalf. The record does not reflect that Susan's counsel, present at the time set for hearing, made any objection to proceeding in Susan's absence. He presented evidence and argument on her behalf. We conclude that Susan received the requisite notice and opportunity to be heard. Accordingly, we hold that the District Court did not violate Susan's due process rights by holding the hearing in her absence.

         ¶9 We review a district court's findings of fact for clear error and its conclusions of law for correctness. In re Marriage of Healy, 2016 MT 154, ¶ 18, 384 Mont. 31, 376 P.3d 99. The construction and interpretation of a contract is a question of law. Grizzly Sec. Armored Express, Inc. v. Bancard Servs., 2016 MT 287, ¶ 27, 385 Mont. 307, 384 P.3d 68. During the hearing, Susan's counsel questioned Alan regarding his and Susan's alleged oral agreement that Susan claimed altered the written Property Settlement Agreement. In support of her position, Susan's counsel introduced a letter from Alan to Susan in which Alan offered to assign Susan his share of the settlement permanently. Susan's counsel also questioned Susan's current husband about the alleged oral agreement. Alan testified that he never received any ...

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