No. 83-549
IN THE SUPRELW COURT OF THE STATE OF MOFITAPIA
1984
ADOLPH DUANE SCHAAK, JR.,
Petitioner and Respondent,
-vs-
BETTY FRANCES LORRAINE SCHAAIC,
Respondent and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Diane G. Barz, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Nye & Meyer, Billings, Montana
For Respondent:
Douglas Y. Freeman, Hardin, Montana
Submitted on Briefs: March 23, 1984
Decided: $lay 31, 1984
--
Clerk
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
This is an appeal from Yellowstone County of an order
dismissing a motion under Rule 60 (b)(6), M.R.Civ.P., to set
aside a decree of dissolution entered by that court and, more
specifically, to set aside the property settlement agreement
incorporated into that decree. We affirm the order dismiss-
ing the petition.
The parties were married in June 1958. In April 1979
wife filed a petition for dissolution. This was converted to
a legal separation on November 6, 1979. The parties' at-
tempts at marital counseling failed, and a dissolution was
granted November 5, 1980.
During the counseling period prior to the dissolution,
wife informed,husband that she wanted to settle their proper-
ty rights. Wife, a college-educated school teacher, drafted
and signed her proposed agreement which was admitted into
evidence at the hearing below. This agreement was prepared
in final form by counsel for husband.
Husband's counsel forwarded the proposed agreement to
wife's counsel for review. Wife's counsel responded, in
pertinent part, as follows:
"I briefly reviewed the Agreement with
Betty and my recommendation to her was
that she should not sign it under any
circumstances. I specifically advised
her that there was a total lack of dis-
closure of the value of the marital
assets and the interest in and to Pryor
Land Company. In addition, I represented
to her tha.t she was entitled to a com-
plete, fair and candid disclosure of the
value of all assets and future expectan-
cies owned by Duane and Betty and which
may accrue to Duane in the future in
connection with the holdings of his
father. I concluded our discussion by
suggesting that she should absolutely
refrain from executing the Agreement and
that she was entitled to far more than is
represented under the terms of that
Agreement.
"My specific advice notwithstanding,
Betty informed me that she is willing to
sign the Agreement and, in fact, stated
that it was her intention to do so ...
". . . however, from a lawyer's point of
view I could not recommend the signing of
the Agreement. Nevertheless the signed
Agreement is being returned to you at my
client's express instructions . . ."
Wife now alleges that she was suffering from depression
at the time she drafted the agreement and that she received a
disproportionate share of the marital esta.te. She received
cash and assets worth approximately $50,000. Husband re-
ceived essentially the interest in Pryor Land Company, a
farming corporation, owned solely by his father, brothers and
himself. Wife contends that the fair market value of the
corporation is approximately $10 million and her husband owns
a 25 percent interest.
Wife raises a number of matters on appeal, but the only
issue is whether the District Court ruled properly in denying
her petition for relief from the decree of dissolution.
The petition was filed pursuant to Rule 60(b)(6),
M.R.Civ.P., which states:
"On motion and upon such terms as are
just, the court may relieve a party or
his legal representative from a final
judgment, order, or proceeding for the
following reasons: . .
. ( 6 ) any other
reason justifying relief from the opera-
tion of the judgment."
The statute allows a limited time to seek relief from
the judgment except
". .
. This rule does not limit the power
of a court to entertain an independent
action to relieve a party from a judg-
ment, order, or proceeding, or to grant
relief to a defendant not actually per-
sonally notified as may be required by
law, or to set aside a judgment for fraud
upon the court."
Petitioner would now have us believe that she was
deprived of a fair property settlement due to the fraudulent
acts of her husband. However, the evidence presented a.t the
hearing discloses otherwise.
Wife was questioned as follows:
"Q. And did you tell Duane what you
wanted in the form of a property settle-
ment? A. Yes. We wrote it down.
"Q. And you wrote it down? A. I wrote
it down. He didn't write anything down.
"Q. And that was what your request was
for a property settlement? A. Yes."
Further questioning of wife revealed the following:
"Q. Prior to that time, you and your
husband lived on the properties referred
to as the Pryor Land Company properties?
A. We had nothing else but Pryor Land
Company properties.
"Q. You were acquainted with what the
properties were? You lived there?
A. Well, I could see what was going on.
"Q. And, primarily, this was a farming
and a ranching type farm corporation; was
it not? A. Yes.
"Q. And you were acquainted with the
ranch, having lived there all your mar-
ried life, so you knew the extent of the
ranch properties? A. Well, I can't say
that I knew the extent of the ranch. I
didn't know the value of anything.
"Q. I am not saying 'value'. I am
sa.ying you knew the extent of the ranch,
what the ranch consisted of? A. Well,
basically."
Testimony of the wife at this hearing conclusively
shows that she was aware of the nature and extent of the
marital estate. There is an absence of substantial evidence
indicating any fraud on the part of the husband either toward
petitioner or on the court.
The basis of petitioner's allegation of fraud is the
failure of the husband to reveal the value of the marital
estate, particularly the value of the interest in Pryor Land
Company. However, at the outset of this matter, wife's
counsel propounded an extensive set of 121 interrogatories
designed to reveal the extent and value of the marital es-
tate. These interrogatories were never answered due to a
stipulation by counsel that discovery would not proceed
d.uring the period when the parties und.erwent marital counsel-
ing. When their attempts at reconciliation failed, counsel
for husband put in final form the property settlement agree-
ment originally drafted by wife and submitted it to wife's
counsel. His response to the agreement is quoted above.
Like the District Court, we find no evidence of fraud
under the circumstances of this case. The wife decided what
she wanted in terms of a property settlement and drafted it
herself. She also signed her draft of the agreement. She
knew exactly what she was getting and what her husband was
getting. She was advised by c0mpeten.t legal counsel that she
was entitled to know the value of a.11 marital assets and that
she was entitled to fzr more than the agreement awarded her.
In spite of this advice, wife insisted upon executing the
agreement.
This Court has indicated that a full inventory of the
assets should be made. In. re Marriage of Lawrence (Mont.
1982), 642 P.2d 1043, 39 St.Rep. 548. "However, we have not
held that a. lack of inventory is fraud upon the court. We
noted in Pilati [(Mont. 1979) 592 P.2d 1374, 36 St.Rep. 6191
that the fraud was the failure to disclose all the assets to
the wife, not the failure to disclose all the assets to the
court." Lawrence, 642 P.2d at 1047.
Here, all assets were disclosed even though the values
had not been determined. Wife insisted on signing the prop-
erty settlement without all values known and expressly
against the advice of counsel.
While we recognize that a disproportionate settlement
may have occurred in this matter, a decree of dissolution
cannot be interfered with a number of years later simply
because a party has changed her mind with regard to what
property she wants from the marital estate. One of the goals
of the dissolution statutes in this State is finality,
Hadford v. Hadford (Mont. 1981), 633 P.2d 1181, 38 St.Rep.
1308, and absent sufficient legal cause, such a decree will
not be disturbed.
We affirm the order of the District Court dj-smissing
the petition for relief.
- $
Chief Justicd ~ &
We concur: