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NO.

95-399

IN THE SUPREME COURT OF THE STATE OF MONTANA 1996

IN RE THE MARRIAGE OF MARGARET HORN, f/k/a MARGARET GREEN, Plaintiff and Respondent, and JIMMY LEE GREEN, Defendant and Appellant.

APPEAL FROM:

District Court of the Twelfth Judicial District, In and for the County of Hill, The Honorable John Warner, Judge presiding.

COUNSEL OF RECORD: For Appellant: Jimmy L. Green, Pro Se, Colorado Springs, Colorado For Respondent: Kathleen H. Richardson, Attorney at Law, Havre, Montana

Submitted on Briefs: Filed:

February 22, 1996

Decided: March 14, 1996

Justice W. William Leaphart delivered the Opinion of the Court. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1995 Internal Operating Rules, the following decision shall not be cited as precedent and shall be published by its filing as a public document with the Clerk of the Supreme Court and by a report of its result to State Reporter and West Publishing Company. Jimmy Lee Green, pro se, Findings of Fact, appeals from the June 29, 1995,

Conclusions of Law and Judgment of the Twelfth

Judicial District Court, Hill County, entered in Hill County cause numbers DV-92-088 andDR-84-212, obligating him to pay a promissory

note and interest, medical and dental expenses, the face value of undelivered savings bonds, as well as attorney's fees and costs. We affirm and remand for recalculation of the amount due on the promissory note. The following issues are raised on appeal: 1. Does the statute of limitations or the doctrine of lathes operate to bar Margaret's claims? 2. Did the District Court err in determining that Jimmy was obligated to pay the promissory note, interest, and attorney's fees, as well as amounts due under the modified 1986 decree? Margaret Green [Horn] (Margaret) and Jimmy Lee Green (Jimmy) were married in 1972 and their marriage was dissolved in July of 1984. Two children were born of the marriage. At the time of the

dissolution,

Jimmy and Margaret executed a settlement agreement, In the agreement, Jimmy

the provisions of which are now at issue.

agreed to "maintain health insurance for the benefit of the minor children" and to "pay any uninsured medical, dental and optical 2

expenses Further,

incurred on behalf of the parties' the agreement provided

minor

children."

that Jimmy would continue to

purchase two $75 United States Savings Bonds each month, one in the name of each minor child, to be held by Margaret. In 1986, Jimmy In the

moved to modify and reduce his child support obligation.

modification, Jimmy was relieved of his obligation to purchase the bonds. The court did not, however, relieve Jimmy from his

obligation to deliver the children's bonds he was to have purchased and delivered prior to the modification. In fact, the court held

Jimmy in contempt for failing to deliver the bonds. The 1984 settlement agreement also required Jimmy to execute a promissory note to Margaret in the amount of $2,850, with

interest at lo%, payable in equal monthly installments of $144.68, to be paid in full by July 1, 1987. The settlement agreement also provided that "should any action be commenced to enforce, modify or interpret any provision contained herein, the court, as a cost of suit, shall award a reasonable attorney's fee to the successful Jimmy appeals from the District Court's determination that

party."

he remains liable for these obligations. Does the statute of limitations or the doctrine of lathes 1. operate to bar Margaret's claims? Margaret asserts that Jimmy did not raise the statute of limitations or the doctrine of lathes at the District Court and that issues not raised below are not considered on appeal. Paternity of Adam (Mont. 1995), 1029. In re

903 P.2d 207, 211, 52 St.Rep. 1026,

Further, she argues that the statute of limitations must be Rule 8(c), M.R.Civ.P.

pled affirmatively or it is deemed waived. 3

Although we agree that Jimmy's defenses are deemed waived by his failure to raise them at the District Court, for Jimmy's benefit we briefly consider his argument. Jimmy asserts that Margaret waited too long to pursue her claims against him. Jimmy argues that

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