*1 HARRIS, re the MARRIAGE of WARREN KIRK Petitioner Appellant, HARRIS, v. DELLA MAE STROTHMAN Re- spondent Respondent. No. 80-20. Aug.
Submitted on Briefs
1980.
Sept.
Decided
At the conclusion of a 3rd District Court July hearing, of fact of law to the entered and conclusions effect two was deficient in items of personal property, to the After peti- court wife. denial of subsequently granted tioner’s motion amend the or in the alternative to findings, grаnt trial, a new the husband to this We affirm. Court. appealed Bozeman, Montana, married on July them, After serious marital problems between developed Harrises executed the 5th December settlement agreement. theBy terms of that agreement, the wife was deeded near Flathead Lake and a residence in Missoula. She to continue as co-owner with her husband of commercial real estate leased being Further, her husband’s business. she was directed agree- ment to sign six-year lease of the real business for $40,000 with the stock to be placed escrow. *3 for of the the husband his enforcement petition agreement, wife had to honor terms of their agree- his failed
alleged had ment the lease for the real that she failing by sign property, income, failed to the bank as to the the rental disposition direct stock in and that she had failed to her complete conveyance on the the business her husband. At thе operated hearing peti- wife she tion to the settlement testified that agreement, enforce had refused her under complete obligations agreement husband, that her to prior because it was obvious to her contrary and oral longer going representations, understanding an insurance cоverage. her with automobile medical provide in fact was agreed She that there was confusion to what testified District Court concluded that under the insurance, and the was deficient as to the automobile agreement husband the additional items. directed the to furnish review: for our issues following Petitioner оffers the made orally Mrs. Harris’ for additional request 1. Was court, months after of the entry legal separation over six barred Rule of the written agreement, decree and approval 60(b), M.R.Civ.P. court, as to the conscionability an of the
2. Was earlier of the as to the subsequent requests of the res agreеment, judicata wife. of an oral in considering allegations err
3. Did settle- with the written property made simultaneously ment agreement? as to of the oral pro- sufficient evidence
4. Was there to support and medical insurance for the automobile vision findings? District Court’s
5. Did the District Court err in making grant personal in аddition to property, the terms of the without agreement, mak- fact, ing required such as the net worth of the parties, 40-4-202, section required by MCA? 60(b)
Rule of the Montana Rules Civil Procedure recites in ap- plicable part:
“On motion and such terms as are the court just, may relieve a or his a final party legal reprеsentative from judgment, order, or for the reasons: proceeding following
“(6) other reason relief from the justifying operation judgment.” the husband made discloses that record
The District Court
of his
to the timeliness
hearing
at the enforcement
no objection
have been
that there may
we recognize
requеsts. Although
wife’s
court,
failure to object
the husband’s
at the trial
crucial issue
The reason
issue
appeal.
a nonjudiciable
makes timeliness
drawn
have its attention
court did not
clear. The trial
this is
*4
the wife’s requests
directed. If
we are now
to which
objection
Court,
of
the obligation
it is
to the District
made
inapрropriately
an ex-
by making
the impropriety
counsel to illuminate
opposing
513
to soit
resolve the issue. Error of
press objection
judge may
this
must be
at
kind
raised
the District Court level and
not be
may
this
Court for
first time on
Kearnes
urged upon
v.
appeal.
(1977),
239,
433;
McIntyre Construction Co.
173 Mont.
567 P.2d
87,
(1968),
v.
Pickett
151 Mont.
439
See
P.2d 57.
also Bower
Kyger
(1957),
146,
v. Tebbs
The District Court below in its acknowledged decree of legal separation, dated December that the settlement agree- ment executed into partiеs incorporated the decree was conscionable and should be The now approved. husband asks this find that the District Court’s as to finding conscionability of the Harris’ settlement is res agreement the issue of judicata their marital agreement, thus barring further any requests by the wife. We do not come that conclusion.
In Brannon v. Lewis and Clark County 200, the rule of State rel. citing ex Sullivan v. School District No. 100 Mont. we P.2d established four criteria which must be of established before plea resjudicata can be sustained. The must be the same parties privity same, issues must be the matter the action must be subject same, relationship subject mattеr concludes, we, must be the same. Brannon do that the most im portant these criteria is that of identity issue. In this case there is sufficient as to the issues involved to make the dissimilarity doctrine of judicata res inapplicable.
The District was that Court’s ex agreement unconscionable, ecuted was not not that was The necessarily complete. of the Harris’ disposed marital no but made provision for future any support. has no direct property disposition bearing contem be fulfilled the future. porary obligations Therefore, this Court must that there conclude is identity
514 on that does not bar further action any-
issues and res judicata to matters the not involving between alleged agreements of marital the disposition property. that in con-
Petitioner further asserts
the District Court erred
an
with
simultaneously
evidence of
oral
made
sidering
agreement
However,
the
the record discloses
written
made
trial court
during
husband
objection
proceedings
to his
the
and the insurаnce.
wife’s
about
automobile
testimony
have
we must conclude that
there
been
again,
although
may
Once
below, the
a critical issue as to the
of such evidence
admissibility
failure to raise the issue of
evidence of the District
husband’s
parol
v.
forfeited
to a
Kearnes McIn-
right
Court
remedy
appeal.
Co.,
also
Credit
Construction
See
tyre
supra.
Massey-Ferguson
396, 401,
(1976),
846.
v. Brown
169 Mont.
P.2d
Corp.
that there is insufficient
position
is the petitioner’s
It
that an oral
existed be
a
support
evidence
issue,
we
the
of this
are guided
tween the
In
resolution
parties.
adhered
this Court.
number of well-established principles
testimony
be
thеir
given
of witnesses and
weight
credibility
of the
District
which are
exclusively
province
are matters
(1977), 175 Mont.
v. Kenney
in a
case. Corscadden
nonjury
of the
we
evidence
1234.
examining
sufficiency
572 P.2d
In
to the prevailing party,
same in a
most favorable
light
reivew the
fact
conclusions
law
findings
and we
presume
further
v. Pierre
tо be correct. Rock Springs Corp.
of the District Court
our
discloses
Only
Accordingly, conclude District Court were based on so sufficient evidence properly the court’s support judgment.
Petitioner contends finally that the District Court erred an of making “equitable” grant personal without making estate, certain such as the net worth of the findings, as required 40-4-202, under section MCA. We disagree.
This has that a held District Court need not with set forth its if there is substantial particularity evidence that the was court aware of and the considered directive items of section 40-4-202, MCA. The husband mentions the net worth specifically As marital estate. this Court found in v. Maberry Maberry (1979), P.2d 598 1115:
“There nois in the evidence record that the trial court did not establish the net worth of the marital estate prior granting maintenance the petitioner.” estate,
The court below held a on all elements in marital hearing and there is substantial evidence the court did not consider the of whole the marital estate that the agree- separation Moreover, ment was deficient. we found in Re the Marriage of Miller,--Mont.--, of a the existence valid that the net worth of the presumes has been parties considered as to by of parties property disposed by agreement. In the case before us there is substantial evidence net worth of was parties by established the District Court and the settlement agreement executed by parties.
This will not disturb of the conclusion the lower court absent a clear abuse discretion which the trial ar- acted judge without of conscious ex-
bitrarily
employment
judgment
ceeded the bounds
reason. In Re the
Fredericksen
Marriage of
we recognize
Accordingly, DALY, concur. SHEA SHEEHY MR. JUSTICES dissenting: HASWELL MR. CHIEF JUSTICE I dissent. this case way disgruntled decision in majority paves into at for a review of their written come court time
spouses Not does this violate settled agreements. only law, of the Uniform Mar- contract but circumvents purposes 40-4-201(1), Act in this state. Section Divorce riage adopted to a can marriage procedure by MCA provides their rights enter into a written forth agreement setting respective termination their obligations upon marriage: (1) To amicable settlement promote “Separation agreement. to a attendant their marriage between disputes *7 of marriage, or the dissolution their parties may separation enter into a written separation agreement containing provisions them, of maintenance owned either of any property disposition them, and visitation their of either of and support, custody, children.” court, unless the court finds is binding upon
This it to be unconscionable:
“(2) or for of marriage legal In a for dissolution proceeding those except agreement, the terms of separation separation, children, are and visitation of for the support, custody, providing finds, after considering the court unless binding economic circumstances of the and other relevant evidence on produced their own motion or on re- parties, court, of the that quest is unconscion- separation agreement 40-4-201(2), able.” Section MCA.
The district in judge, decree of entering legal separation 19, 1978, December made several with respect par- ties’ written property agreement:
“2. That Settlement of the Property Agreement parties, 5, 1978, dated December is made of this Decree.” part “6. That said Property Settlement is not unconscion- Agreement able.”
Once such Court, findings are entered by the District the UMDA further provides that . . are agreement. enforceable “[t]erms . . . as 40-4-201(5), contract terms.” Section MCA. enforcing settlements as contractual agreements, this Court has con- relied on Montana sistently contract law to that a find written instrument supersedes all oral negotiations occurred prior with the simultaneously execution of the written agreement. Sec- 28-2-904, MCA; tion 172, Merritt v. Merritt 178, 526 P.2d
Both parties to this action admit to extensive negotiations discussiоns this prior signing Mrs. Harris in court that “. acknowledged . . for a whole we year discussed [sicj of many ways settlement. time he Every decided to divorce me we would again, come with up another settlement.” type 5, 1978, Finally, December did set- written sign tlement agreement, their disposing real personal property. At time point fixed their they rights with obligations their respect Miller v. property, Miller and their St.Rep. discussions prior about disposition their longer determinative. 28-2-904, Section MCA. *8 no that had made factual the finding district judge Rather, he a oral into enforceable agreement.
entered separate that settlement finalized thе parties’ property cluded the property was a final property agreement except disputes complete car. to insurance and the There respect that was deficient with of, fraud, of, mistake or over- no or allgations findings these items explain why nor was reason any given reaching, this the District Court and were not included the Yet this written property agreement, are rewrite prepared the of their own both and in by presence signed voluntarily parties, attorneys. as matters characterizes the car and insurance
The majority which would be covered necessarily property not that could be rather as items of “future support” but agreement, no there was factual find- of a Yet separate agreement. subject fact, the district of a judge support agreement, ing separate noted in his that these two items were implicitly merely settlement, omissions from the and in these tо awarding property Harris, Mrs. the district found that same consideration judge award of these the other supported supported items distributed to her. in Mon- judges
I do not power dispute 40-4-208(3)provides: a settlement. Section tana modify property not be re- “(3) disposition may The provisions court, except: voked or modified by “(a) or parties; consent written that “(b) justify the existence of conditions if court finds laws of this state. under reopening judgment which judge made district finding there was But was no finding this There the reopening judgment. justifies fraud, mistake, other condition misrepresentation, contract a contract. This modification of rеscission or allows the it to be “inequitable,” court found because the was modified only not “un- that the agreement earlier despite judge’s conscionable.”
isIt unfortunate if one to an party neglects include terms which in retrospect feels should been spouse have in- *9 cluded. But this is no reason to overturn the law of age-old tracts, which seeks to preserve sanctity written agreement, and allows be of their apprised rights obliga- tions under that agreement.