Englund v. Englund , 184 Mont. 488 ( 1979 )

No. 14787
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979
DANNIE ENGLUND ,
Plaintiff and Respondent,
-vs-
CLINTON E. ENGLUND,
Defendant and Appellant.
Appeal from: District Court of the First Judicial District,
Honorable LeRoy L. McKinnon, Judge presiding.
Counsel of Record:
For Appellant:
Smith and Harper, Helena, Montana
Charles A. Smith, I11 argued, Helena, Montana
For Respondent:
Dowling Law Firm, Helena, Montana
Thomas Dowling argued, Helena, Montana
Submitted: September 24, 1979
Decided: DEC 1 4 1979
Filed: R f4
C ygg>
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Clinton E. Englund appeals from an order dismissing his
petition to terminate property settlement payments. The order
was entered by the District Court, First Judicial District,
Lewis and Clark County, upon a motion to dismiss by Dannie
Englund.
Clinton and Dannie were formerly husband and wife. Their
marriage was dissolved in May 1970 after some thirty years of
marriage. The marriage dissolution decree ordered Clinton
to make four lump sum payments of $2,500 each to Dannie as
part of the property settlement arrangement. In returning,
Dannie was to convey to Clinton any interest Dannie held in
jointly owned realty acquired during the marriage. In addition,
Clinton was to pay $400 per month to Dannie, indefinitely.
Thereafter, Clinton sought enforcement of that portion
of the marriage dissolution decree which ordered Dannie to
convey her interest in jointly-owned realty acquired during
the marriage. In March 1971, the District Court found
Dannie in contempt of court and ordered her to execute the
appropriate deeds and documents to Clinton. Dannie complied
with the order.
Clinton continued the $400 monthly payments until 1975
when he moved to set aside the payments. Clinton asserted the
payments constituted void alimony payments because the divorce
was granted to Clinton. The District Court denied Clinton's
motion. Upon appeal, we found the $400 payments to be a part
of the property settlement arrangement and not alimony as
referred to by the District Court. Further, we affirmed the
District Court judgment that Clinton was estopped from challenging
the monthly payments having successfully taken affirmative
action to enforce the property settlement arrangement.
Englund v. Englund (1976), 169 Mont. 418, 547 P.2d 841.
On February 2, 1979, Clinton filed this petition to
terminate the $400 monthly payments on the sole ground Clinton
had already paid more than the value of Dannie's interest in
the jointly-held marital property. Dannie's motion to dismiss
the petition was granted. Specifically, the District Court
concluded Clinton would not be permitted to challenge the
$400 monthly payments having availed himself of the benefits
of the property settlement arrangement.
The sole issue upon this appeal is whether the ~istrict
Court erred in granting Dannie's motion to dismiss. We find
there was no error.
In Fiscus v. Beartooth Elec. Cooperative, Inc. (19791,
Mon t . , 591 P.2d 196, 197, 36 St.Rep. 333, 335:336,
we said:
"'The rule is well established and long adhered
to in this state that where, upon an appeal, the
Supreme Court, in deciding a case presented states
in its opinion a principle or rule of law necessary
to the decision, such pronouncement becomes the
law of the case, and must be adhered to throughout
its subsequent progress, both in the trial court and
upon subsequent appeal;. .
. ' Carlson v. Northern
- -R. Co., 86 Mont. 78, 281 P. 913, 914."
Pac. -
Englund v. Englund, supra, is the "law of the case"
upon this appeal. In Englund, we held, in part, that Clinton
was estopped from challenging the $400 monthly payments having
successfully availed himself of the benefits of the property
settlement provisions of the marriage dissolution decree.
The order of the District Court iq affirmed.
W e Concur:
Chief J u s t i c e
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