Marriage of Phillips & Bucknum ( 2020 )

11/24/2020
DA 20-0010
Case Number: DA 20-0010
IN THE SUPREME COURT OF THE STATE OF MONTANA
2020 MT 294N
IN RE THE MARRIAGE OF:
DAWN E. PHILLIPS,
Petitioner and Appellee,
and
FRANK M. BUCKNUM,
Respondent and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and For the County of Lake, Cause No. DR-18-104
Honorable James A. Manley, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Quentin M. Rhoades, Rhoades, Siefert & Erickson PLLC, Missoula,
Montana
For Appellee:
Gregory A. McDonnell, Thomas C. Orr Law Offices, P.C., Missoula,
Montana
Submitted on Briefs: September 23, 2020
Decided: November 24, 2020
Filed:
Vir-6A.-if
__________________________________________
Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Frank Bucknum appeals from an Entry of Final Decree, Finding of Contempt, and
Order of Attorney Fees entered on November 14, 2019 by the Twentieth Judicial
District Court, Missoula County. We affirm.
¶3 Dawn Phillips and Bucknum were married on October 2, 2004, in
Missoula, Montana. They entered into a premarital agreement the day before their wedding
on October 1, 2004, and subsequently amended the premarital agreement on August 28,
2006. The Premarital Agreement and the First Amendment to Premarital Agreement
included the disclosure of the parties’ respective assets and provided for both disclosure
obligations as well as distribution of those assets in the event of a dissolution. On
September 24, 2018, Phillips filed a Petition for Dissolution of Marriage. The petition
noted the existence of the Premarital Agreement and subsequent amendment but claimed
both were null and void due to “intimidation, misrepresentation, deceit, and fraud.”
Bucknum denied such allegations and asserted that the Premarital Agreement and
subsequent amendment should govern the division of the parties’ accumulated property
and debts.
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¶4 On February 15, 2019, Phillips and Bucknum attended a master-supervised
settlement conference and entered into a Marital Property Settlement Agreement (MPSA).
Bucknum appeared by video conference from Canada and independent counsel represented
him in the negotiation and preparation of the MPSA. Bucknum maintains that he was
suffering from pneumonia during the conference. Phillips appeared in-person and was also
represented by counsel. As part of the MPSA, both parties acknowledged that they
“intend[ed] through th[e] agreement to accomplish a fair and equitable distribution of their
marital estate . . .;” and they “ha[d] carefully and thoroughly read and approved th[e]
agreement in its entirety and . . . entered into negotiation and preparation of th[e] agreement
with full knowledge and understanding of its consequences.” This included an
acknowledgement that the MPSA was fair and equitable and that it would be incorporated
into the Final Decree of Dissolution of Marriage. The MPSA also contained the following
provision:
This agreement is complete and contains all understandings and agreements
between the parties with regard to the issues set forth herein. No written or
oral promises, understandings, representation, warranties, covenants,
agreements, or any other undertakings exist between the parties other than
those expressly set forth herein. No oral statement or written matter extrinsic
to this agreement shall have any force or effect.
(Emphasis added.) By signing, the parties agreed that the MPSA was “effective and
enforceable immediately upon the execution . . . by both parties.” Bucknum, Phillips, and
their attorneys signed the MPSA that day, and it was filed with the District Court on
February 25, 2019.
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¶5 On May 16, 2019, Bucknum’s counsel requested to withdraw from the proceedings
based on a “major break down in attorney client communication . . . .” The District Court
granted the motion and Phillips issued a Uniform District Court Rule 10 Notice to
Bucknum notifying him that the court had granted his attorney’s request to withdrawal. On
May 23, 2019, Phillips requested the District Court order Bucknum to comply with the
MPSA and hold Bucknum in contempt for, inter alia, canceling Phillips’ insurance
coverage on the vehicle Phillips had been operating and the premises in which she had been
living, and failing to pay previously-awarded attorney fees and a temporary maintenance
payment. Bucknum failed to respond to the Rule 10 Notice or Phillips’ motion. Phillips
filed another motion on July 18, 2019, requesting that the District Court issue an order
holding Bucknum in default for his failure to respond and to set a hearing to determine
damages. Specifically, Phillips sought to address Bucknum’s failure to make promised
and stipulated payments and to execute documents as required by the MPSA.
¶6 On September 27, 2019, the District Court held a hearing on the outstanding
motions. Bucknum represented himself and Phillips appeared with counsel. Phillips
testified and presented exhibits. Bucknum testified and attempted to introduce a letter from
his physician in Victoria, Canada, to explain his condition at the mediation conference and
to support his request to withdrawal from the MPSA. The District Court properly excluded
it on hearsay grounds. Next, Bucknum wished to have the doctor appear through the
court’s video conference system; however, Bucknum did not make arrangements to use the
system and did not know how to use it. Bucknum did not indicate or request to call remote
witnesses through the video conference system at the hearing. The District Court did
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permit Bucknum to call any witness he wanted to present on his cellphone, but Bucknum
chose not to do so. Bucknum then called two witnesses who were present in the courtroom.
Ultimately, the District Court heard testimony and admitted exhibits from both parties.
¶7 In the District Court’s October 8, 2019 Findings of Fact and Conclusions of Law,
and Order, the District Court found Bucknum in contempt for failing to abide by its
previous orders relating to the distribution of assets and duties under the MPSA.1 The
District Court concluded that the MPSA was not unconscionable and was binding and
enforceable between the parties. The District Court concluded that the
Premarital Agreement and the First Amendment to Premarital Agreement were void “to the
extent that . . . the MPSA was approved, entered into, and executed by and between the
parties and their respective counsel.” Among other things, the court specifically ordered
Bucknum to transfer certain real property and ownership of vehicles belonging to Phillips
in accordance with the MPSA. The District Court ordered Bucknum to pay attorney fees
previously ordered and the single maintenance payment agreed upon by the parties. Within
30 days, Bucknum was to pay the parties’ taxes. The District Court granted Phillips’
motion for attorney fees incurred to enforce the MPSA.
¶8 Bucknum failed to follow any of the District Court’s orders. On November 5, 2019,
Phillips filed another motion to compel Bucknum to abide by the District Court’s orders
and instructions and to hold him in contempt for the third time. The District Court held a
hearing on Phillips’ motion. Bucknum did not appear and the District Court found him in
1
The District Court had previously issued an order on December 24, 2018, holding Bucknum in
contempt after violating an economic Temporary Restraining Order between the parties.
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contempt of court for failure to abide by the October 8, 2019 order. On November 14,
2019, the District Court entered the Final Decree at issue in this appeal. Phillips received
a writ of execution on December 17, 2019, and executed it against Bucknum to recover
monies previously awarded. The writ was partially satisfied after Bucknum’s bank was
levied, but he still has not fully complied with the District Court’s orders or instructions
regarding compliance with the MPSA.
¶9 The first issue Bucknum raises on appeal is whether the District Court erred in its
conclusion of law that the parties’ Premarital Agreement and subsequent agreement are
void. Bucknum argues that the terms of the Premarital Agreement should be incorporated
into the MPSA and the documents should be read together. He maintains that the District
Court’s failure to do so constitutes prejudicial error, and, when read together, the Premarital
Agreement and the MPSA’s disposition of property result in no award of attorney fees and
no equalization payment to Phillips. We affirm.
¶10 The standard of review of a district court’s conclusions of law is whether the
conclusions are correct. In re Marriage of Rada, 263 Mont. 402, 405, 869 P.2d 254, 255
(1994).
¶11 Montana’s public policy promotes “the amicable settlement of disputes between
parties to a marriage.” In re Marriage of Wagenman v. Wagenman, 2016 MT 176, ¶ 14,
384 Mont. 149, 376 P.3d 121 (citing § 40-4-201(1), MCA). “For this reason, parties [to] a
marriage dissolution may enter into a written settlement agreement” that governs the
disposition of each spouse’s property. Wagenman, ¶ 14 (citing § 40-4-201, MCA). A
district court is bound by the terms of the separation agreement unless the court finds the
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separation agreement unconscionable. Wagenman, ¶ 14 (citations omitted). In other
words, a district court may not modify the terms of a settlement agreement absent a finding
of unconscionability. Wagenman, ¶¶ 14, 17-18; Hadford v. Hadford, 194 Mont. 518, 523,
633 P.2d 1181, 1184 (1981) (the conscionability versus unconscionability of a settlement
agreement is decided by operation of law when the settlement is approved and merged with
the divorce decree). Unconscionability is discussed in the Code Commissioner’s
comments to § 40-4-201, MCA, where it is defined as including “protection against one-
sidedness, oppression, or unfair surprise.” Section 40-4-201, MCA, Annotation, Comm’rs
Note (2013); In re Marriage of Lawrence, 197 Mont. 262, 271, 642 P.2d 1043, 1048
(1982). “Terms of [an] agreement set forth in [a] decree are enforceable by all remedies
available for enforcement of a judgment, including contempt, and are enforceable as
contract terms.” Section 40-4-201(5), MCA. As such, parties to a settlement agreement
are bound by the terms of that agreement unless the district court finds the settlement
agreement unconscionable.
¶12 The record establishes Bucknum and Phillips both willingly attended the settlement
conference on February 15, 2019. The settlement conference was supervised by an
experienced settlement master, and both parties were represented by counsel in negotiating
the terms of the MPSA. Phillips and Bucknum signed the agreement at the end of the day
acknowledging that they “intend[ed] that th[e] agreement be determined by the [District
Court] to be fair and equitable and the agreement be incorporated into the Final Decree of
Dissolution of marriage . . .” The parties participated in good faith to resolve the
outstanding issues between them and reached an agreement in the end. Along with a
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division of the parties’ property, the argument over the validity of the
Premarital Agreement and subsequent agreement was resolved by the provisions of the
MPSA. The terms of the MPSA indicate that the parties agreed the MPSA was “complete”
and contained “all understandings and agreements between the parties with regard to the
issues” between the parties. A prior written agreement, such as a premarital agreement,
can be modified by a subsequent written agreement, such as a settlement agreement, but
modification requires a manifestation of intent by both parties. AAA Constr. of Missoula,
LLC v. Choice Land Corp., 2011 MT 262, ¶ 27, ¶ 29, 362 Mont. 264, 264 P.3d 709. By
signing the MPSA, both parties manifested their intent that the MPSA controlled and was
a complete resolution of prior disputes.
¶13 We conclude the District Court did not abuse its discretion when it determined the
Premarital Agreement was void. The MPSA was enforceable and resolved the dispute over
the validity of the Premarital Agreement and the disposition of the property. Because we
find the MPSA enforceable, we need not address Bucknum’s arguments that the MPSA
and the Premarital Agreement, read together, result in no award of attorney fees and no
equalization payment to Phillips.
¶14 The second issue Bucknum raises on appeal is whether the District Court erred when
it did not continue the final hearing and Bucknum was unable to present his remote witness
through the courtroom’s video conference system. Bucknum argues the system failed and
the District Court should have reset the final hearing.
¶15 “We review a district court’s decision to grant or deny a motion for a continuance
for abuse of discretion.” In re Marriage of Eslick, 2013 MT 53, ¶ 10, 369 Mont. 187, 304
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P.3d 372. “Any motion for a continuance is within the sound discretion of the district court
and we will not overrule the court’s decision to deny a request for a continuance unless
there is an affirmative showing that [the movant] has suffered prejudice.” Eslick, ¶ 10. “A
district court abuses its discretion when it acts arbitrarily without the employment of
conscientious judgment or exceeds the bounds of reason, resulting in substantial
prejudice.” Eslick, ¶ 10.
¶16 Bucknum argues that his pneumonia made him extremely tired, and the illness and
remote nature of the settlement conference led him to misunderstand the legal implications
of signing the MPSA on February 15, 2019. Believing the Premarital Agreement was still
valid and that he had three days to read and rescind the MPSA if he so chose, Bucknum
argues he signed the MPSA without comprehension. To support this argument, Bucknum
sought to call his doctor in Victoria, Canada, as a witness at the September 27, 2019
hearing. Bucknum now maintains that the District Court’s courtroom equipment and
remote hook-up infrastructure failed, and he was prejudiced because his doctor was unable
to testify. However, the record does not indicate the court’s video conference system was
not working. Instead, Bucknum failed to make arrangements to use the system and did not
know how to use it. There is no motion or other request in the record indicating that
Bucknum planned to call remote witnesses through video conferencing at the hearing.
When Bucknum could not operate the teleconference system, the District Court permitted
him to call witnesses on the phone, which he chose not to do before calling his two
witnesses who were present in the courtroom.
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¶17 Bucknum had the burden of presenting his own witnesses and, if necessary, to
arrange for them to testify remotely. Alternatively, Bucknum could have called his witness
on the phone or moved the court for a continuance, recess, or postponement of the hearing.
He took none of these actions. Instead, Bucknum called witnesses who were present and
chose not to call his doctor by phone after the District Court granted him permission to do
so. Bucknum did not make arrangements to use the teleconference system prior to the
hearing, and he did not request a continuance. Because no motion to continue was made,
we do not need to address whether Bucknum was prejudiced by a denial of such motion.
The District Court did not abuse its discretion when it did not continue the hearing sua
sponte.
¶18 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled law or by the clear application of
applicable standards of review.
¶19 Affirmed.
/S/ LAURIE McKINNON
We concur:
/S/ MIKE McGRATH
/S/ INGRID GUSTAFSON
/S/ DIRK M. SANDEFUR
/S/ JIM RICE
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