MARRIAGE OF WILLIAMS
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NO. 83-183 IN THE SUPREME COURT OF THE STATE OF MONTANA 1984 IN RE THE MARRIAGE OF: ROSE WILLIAMS, Petitioner and Respondent, and DENNIS WILLIAMS, Respondent and Appellant. Appeal from: District Court of the Courth Judicial District, In and for the County of Missoula Honorable James B. Wheelis, Judge presiding. Counsel of Record: For Appellant: Datsopoulos, &Donald and Lind, Missoula, Montana Milton Datsopoulos argued and David Cotner araued, Missoula, Montana For Respondent: Terry Wallace argued, Missoula, Montana submitted : Filed: December 5 , 198 3 Mr. Justice John C. Court. Sheehy delivered the Opinion of the Dennis Williams appeals from an order of the District Court, Fourth Judicial. District, Missoula County, reinstating his obligation to pa.y maintenance to his previous wife, Rose Williams. remand We reverse the decision of the District Court and the cause to the District Court for further proceedings. A final decree dissolving the marriage between Rose Williams and Dennis Williams was entered on April 21, 1980. The decreeeincorporated an agreement by which the parties attempted to make a complete and final settlement of their property and adjust all of their marital obligations. provides in part tha-t Dennis Williams make the It house payments, including taxes and! insurance, on the family home until the family home was paid for or sold, or unt-il Rose Williams remarried. The agreement further provided that if Rose Williams remarried and chose to continue living in the family home Dennis Wil-liams would no longer be required to make the house payments. On July 1.0, 1982, Rose FJilliams remarried. She and her new husband decided to live in the family home and, pursuant to the agreement, Dennis Williams stopped making the house payments. Two mont.hs later, on September 1, 1982, Rose Williams filed a petition to invalidate her recent marriage on the grounds that she lacked the capacity to consent to the marriage and that any consent to the marriage was induced by fraud. The petition was granted and a retroactive decree of invalidity was entered. On December 8, 1982, Rose Williams filed a petition asking the District Court to enforce the portion. of the dissol-ution decree requiring Dennis Williams to make the house payments. After considering the briefs of counsel, the District Court issued an order in which the court determined that "[pletitioner's annulment of her second marriage has served to revive respondent's obligation for maintenance." It is from this determination that Dennis Williams appeals. Contrary to the District Court ' s d-etermination , Dennis Williams contends that his obligation to pay maintenance in the form of house payments was terminated by Rose Will.iamsl remarriage and that this obligation was not automaticallv revived by the retroactive decree of invalidity. Historically in Montana the annulment of a marriage ab rend-ered that marriage void - initio, void as of the date of the marriage. State ex rel. Wooten v. District Court (1920), 57 Mont. 517, 189 P. 233; In re Takahashi's Estate (1942), 113 Mont. 490, 129 P.2d 217. In 1975, however, the Montana legislature adopted the Uniform Marriage and Divorce Act which provided that a decree of invalidity or an annulment could be declared nonretroactive as well as retroactive in effect. Section 40-1-402 (5), MCA, provides that. the court shall declare the marriage invalid as of the date of the marriage " [u]nless the court finds, after a consideretion of all relevant circumstances, including the effect of a retroactive decree on third parties, that the interests of justice would be served by making the decree nonretroactive." If a nonretroactive decree of invalidity is issued, the statute further provides that "[tlhe provisions of chapter 4 [section 40-4-101 to 40-4-225, inc., MCA] relating to property rights of the spouses, maintenance, support, and custody of children appl-j-cable. . These on dissolution of marriage are . " provisions do not alter the status of the marriage; in the eyes of the law the marriaqe is deemed as having never occurred, regardless of whether the decree of invalidity is declared retroactive or nonretroactive. These provisions do, however, have an effect on the rights of the parties to the recent marriage other third persons, depending on whether the decree of invalidity is declared nonretroactive or retroactive. For example, if a decree of invalidity nonretroactive, the is declared to be spouse granted the decree may petition the District Court for a division of support. the marital propertv, maintenance, or child Therefore, before making a decision as to the retroactivity or nonretroactivity of a decree, the District Court must consider all of the relevant circumstances including the effect - -a retroactive decree - third parties of on and balance the equities involved. Unfortunately, there is no evidence in this record that the District Court retroactive decree considered on any possible third parties before effect of a granting the decree and declaring it to be retroactive. In some jurisdictions it is well-settled that the annulment of a marriage permanently terminates any prior obligation for alimony or maintenance. (1978), 118 Ariz. (1971), 82 N.M. 572, 578 P.2d See Hodges v. Hodges 1001; Chavez v. Chavez 624, 4E(5 P.2d 735; Torgan v. Torgan (1966), 159 Colo. 93, 410 P.2d 167. In other jurisdictions, however, it the is well-settled that annulment of a marriage automatically reinstates any prior obligation for maintenance or alimony. See Johnston v. Johnston (1979), 3 Kan.App.2d 208, 592 P.2d 1.32; Sutton v. Leib (7th Cir. 1952), 139 ~ . 2 d 163; Boiteau v. Boiteau (1948), 227 Minn. 26, 33 ~ . ~ . 2703. d While there is no consensus among the va-rious jurisdictions as to the effect of an amnulment or decree of invalidity on a prior spouse's obligation to pay alimony or maintenance, the underlying basis for the courts1 decisions to terminate or reinstate the obliqation appears to be the same: equity. After examining the hasis for the other courts' decisions, the Utah Supreme Court in Ferguson v. Ferguson (Utah 1977), 564 P.2d 1380, recognized. the anomaly of a- strict "all or nothing" rule and adopted a flexible rule which neither automatically restores nor automatical1.y terminates a prior obligation for alimony or maintenance. The court held tha.t: "Upon proper application to the District Court invoking its continuing jurisdiction, it should be free to proceed in conformity with its general equitable powers upon these generally sound propositions: that when a wife remarries, her right to receive alimony under the divorce decree from her former husband should terminate, and that an annulment of the subsequent marriage should not automatically restore the alimony under the prior decree. Notwithstanding the foregoing, the court may exercise its sound discretion in ordering reinstatement of the alimony in the prior decree if, upon its consideration of all of the circumstances, it appears clearly and persuasively that that is necessary to rectify serious inequity or injustice." 564 P.2d at 1383. We find the reasoning of the Utah Supreme Court to he persuasive and adopt the above cited rule. It follows from this that Dennis Williams1 obligation to pay maintenance to his previous wife was not automaticall-y reinstated upon the issuance of the decree of invalidity. The decree finding Rose's second marriage void was entered September 30, 1982. It has become final. In that action, without findings required section making the in 40-1-402(5), MCA, the District Court ordered that the decree of annulment be retroactive. However, the District Court in which the marriage of Rose and Dennis was dissolved has continuing jurisdiction over the parties in matters relating to support and maintena.nce. In the statutory scheme provided by section 40-1-402, MCA, in all-owing annulments to be made nonretroactive, there is no provision as to which court, the court having jurisdiction of the annulment cause, or the court having jurisd.i.ction of the dissolution cause, should determine the rights of "third parties." case here, Dennis is a "third party." In the annulment His objections, i.f any, to retroactive effect should be heard. in court. It is appropriate in this case to require the District Court having jurisdiction of the dissolution ca.use to provide that opportunity to Dennis for objection and hearing, and for findings to be made by the court leading to its decision. Rased on the foregoing, the decision of the District Court automatically reinstating Dennis Williams' obligation to pay maintenance is reversed and the cause remanded to the same District Court for further proceedings in accord.ance with this opinion. We Concur: %A-4 4 4 4 &, $ Chief JuStice
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