In Re the Marriage of Gerleman , 228 Mont. 158 ( 1987 )

No. 87-83
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
IN RE THE MARRIAGE OF
JULIE J. GERLEMAN,
Petitioner and Appellant,
and
GARY L. GERLEMAN,
Respondent and Respondent.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Henry Loble, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Hull & Sherlock; David N. Hull, Helena, Montana
For Respondent:
J. C. Weingartner, Helena, Montana
Submitted on Briefs: June 4, 1987
Decided: August 19, 1987
AUG 1 9 1987
Filed:
Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
Julie Gerleman appeals a Lewis and Clark County
District Court order which denies her motion to set aside the
property settlement in this dissolution of marriage case.
The issue on appeal is whether the court erred in denying her
motion where she agreed to the property settlement without
knowing the value of certain assets of the husband,
respondent Gary Gerleman, or that those assets formed part of
the marital estate. We affirm.
In November 1975, the parties were married in Helena,
Montana. In March 1984, following marital difficulties, the
parties signed a "Custody, Support and Property Settlement
Agreement." They apparently reached agreement as to division
of their marital assets after consulting with counselors at a
Family Teaching Center. The agreement divided the marital
assets between the parties. The agreement states that each
of the parties warranted that there had been a full
disclosure of assets. An attorney prepared the agreement but
neither party received advice from an attorney. In April
1984, the District Court issued its order dissolving the
marriage and incorporated the agreement as part of the
decree.
Section 40-4-201, MCA, provides for the type of
agreement the parties executed. That statute provides in
part:
(1) To promote amicable settlement of
disputes between parties to a marriage
attendant upon their separation for the
dissolution of their marriage, the
parties may enter into a written
separation agreement containing
provisions for disposition of any
property owned by either of them,
maintenance of either of them, and
support, custody, and visitation of their
children.
(2) In a proceeding for dissolution of
marriage or for legal separation, the
terms of the separation agreement, except
those providing for the support, custody,
and visitation of children, are binding
upon the court unless it finds, after
considering the economic circumstances of
the parties and any other relevant
evidence produced by the parties, on
their own motion or on request of the
court, that the separation agreement is
unconscionable.
In November 1986, the wife moved to set aside the child
support and property settlement provisions of the divorce
decree. She alleged the husband had committed fraud and/or
misrepresentation at the time the agreement was executed.
She complained that she was not informed of the husband's
retirement program, his stock shares in the company he worked
for, or his actual income. The parties have stipulated that,
at the time of the dissolution, the District Court was not
aware of the husband's actual income, retirement program or
stock shares.
In December 1986, the District Court ruled against the
wife, declined to change the property settlement and held
that Gary had not committed fraud or misrepresented his
assets or income. This appeal followed.
The provisions of a property settlement may be modified
under 5 40-4-208, MCA. This Court recently stated:
"The court may relieve a party under
section 40-4-208 (3) (b), MCA from a final
judgment or order for mistake,
inadvertence, surprise, excusable
neglect, newly discovered evidence,
intrinsic and extrinsic fraud,
misrepresentation, misconduct, and 'any
other reason justifying relief from the
operation of the judgment. ' Rule 60 (b),
M.R.Civ.P. " (Citation omitted. )
In Re Marriage of Lorge (Mont. 1984), 675 P.2d 115, 118, 41
St.Rep. 50, 55.
The wife asserted that she had been misled as to the
husband's income, his retirement program and fund with his
employer and his shares of stock in his employer company.
The District Court addressed the allegations of fraud and
misrepresentation and stated:
[Wlhen Julie's motion was heard on
December 18, 1986, she testified that she
knew that Gary was making $36,000 per
year at the time and which she concedes
- his actual income.
was She testified
that the parties used his base rate of
$26,000 per year for the purpose of
negotiating the agreement, which did not
include the amount he had made for
overtime work. However, she testified
several times that she knew what his
actual income was. ... [W]hen she took
the stand, Julie testified that when the
agreement was negotiated, she knew he had
a retirement program and a retirement
fund with his company, American Telephone
and Telegraph Company and that she knew
that he had shares of stock in that
...
company. Julie also had retirement
benefits from her job which she received.
Gary took his and she took hers.
(Emphasis in original.)
The court concluded that there was no fraud or
misrepresentation and that the agreement was not
unconscionable.
The wife does not challenge the court's findings of
fact. Given those findings (that the wife knew of the assets
and the income) , we affirm the court's denial of the wife's
motion.
The wife's principal complaint is that the lower court
approved the property settlement agreement (as it was
required to do under 5 40-4-201, MCA, upon finding that the
agreement was not unconscionable) without knowing of the
existence of the disputed items, which were properly part of
the marital estate. Appellant overlooks the fact that in
December 1986, when the court was aware of the disputed
items, the court still found that there was nothing on the
face of the agreement which makes it appear to he
unconscionable. Moreover, substantial evidence supports the
finding that there was no fraud nor misrepresentation. We
defer to the District Court's rulins.
Affirmed.
We Concur: HJ
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