No. 88-123
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
IN RE THE MARRIAGE OF
SHEILA G. LYMAN,
Petitioner and Appellant,
and
CHARLES E . LYMAN,
Respondent.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Robert Holter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Warden, Christiansen, Johnson & Berg; Gary R.
Christiansen, Kalispell, Montana
For Respondent :
Hash, Jellison, O'Bri-en & Bartlett; M. Dean Jellison,
Kalispell, Montana
Submitted on Briefs: July 14, 1988
Decided: August 18, 1988
Filed: I8
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Sheila Lyman appeals from the judgment of the District
Court of the Eleventh Judicial District, Flathead County,
which denied her petition to modify a prior dissolution
decree. We affirm.
The issues before the Court are:
1. Did the District Court err when it concluded there
was insufficient evidence of fraud to justify setting aside
the parties' dissolution decree?
2. Was the District Court's failure to increase the
amount of child support originally ordered clearly erroneous?
Charles Lyman (Husband) and Sheila Lyman (Wife) were
married in Skokie, Illinois on June 20, 1 9 6 4 . Three children
were born of the union but only two remained minors when the
marriage was dissolved in 1 9 8 4 . One child remained at home
during the instant controversy.
During the course of the marriage, Husband controlled
the family finances. Husband testified that it was
traditional in his family that spouses were not made aware of
financial matters and that he followed that practice.
Consequently, Wife was not fully informed about the family's
income or assets.
The controversy at hand arises as a result of Wife's
purported lack of knowledge. Prior to the entry of the
dissolution decree, Wife initiated discovery procedures
designed to determine Husband's financial worth. She
requested, inter alia, a list of debts and of assets,
information concerning the lease on a Godfather's Pizza
establishment, information concerning a beer and wine
license, the parties' 1983 joint income tax return, and.
financial information about Husband's Mother. However, the
parties entered into a separation agreement before the
information was fully delivered.
It provides, in pertinent part:
13. The parties have agreed upon an equitable
division of the marital estate which division is
reflected on Exhibit A hereto. The division has
been predicated on an agreement which reflects the
unique circumstances of this case in that Husband
- - - - been the beneficiary of certain trusts
is and has -
and family gifts which have enhancyd the ability to
accumulate the marital estate and which aqreement
consists of the parties agreeing that wife would
make no claim to anv interest - - trusts or
- d
in the
gifted-property and Husband would concede - -E
that t
assets reflected on said Exhibit be treated as
resulting - - equal contribution of both
7 -
from the
parties. For reasons of privacy, the saidExhibit
does not contain the values agreed upon for the
various assets; however, the parties have agreed
upon values and the division amounts to an equal
division of the marital assets between the parties.
Exhibit B to the copies retained by the parties
reflects the agreed values. It is further agreed
that Husband shall have a right of first refusal to
meet the terms of any salg of the lot owned by
Sheila and located adjacent to the family
residence.
14. In accordance with the provisions of Sec.
40-4-201 M.C.A., it is agreed that the terms of
this agreement, other than custody, support and
maintenance matters, shall not be set forth in the
Decree to be entered by the Court, but the Court
may identify this agreement and shall have found
the same not to be unconscionable, reserving the
power to enforce its terms by all remedies
available for enforcement of a judgment. Except
for terms relatin to
fiitation - - ch?ldr~n, this agreement
of the
w &
support, custod or
n z
- modified
be the Court.
15. Each of the parties hereto - -has been
represented &-counsel - their choice - -
of and each
agrees that there - - - reliance -
has been no on
representations b~ the other in reaching this
agreement. Each Party - - access - -
has haT to such
information - - deemed necessary - - arrived
as was and has
- - independent judgment - - - equitableness
at an as to the
and reasonableness - - arrangement effected
of the
hereby. (Emphasis added. 1
The agreement and property settlement awarding each
party in excess of $500,000 in assets was subsequently
adopted by the District Court. Wife now seeks to modify the
property, maintenance and child support provision of the
agreement on the basis of the Husband's fraudulent failure to
fully inform her of the value of family assets.
Generally, the courts of this state are bound by
separation agreement freely entered into by the parties
unless the court determines the agreement to be
unconscionable. Section 40-4-202, MCA. However, the
adoption of such an agreement does not forever strip a court
of its inherent equitable authority to re-open an agreement.
A court of general jurisdiction has the right,
entirely independent of statute, to grant relief
against a judgment obtained by extrinsic fraud and
may grant that relief either on motion in the
original cause or upon separate equity suit ...
Cure v. Southwick (1960), 137 Mont. 1, 8, 349 P.2d 575, 579.
In the instant case, Wife contends that Husband's
failure to fully inform her of the family assets,
misrepresentations concerning certain debts and property, and
the forgery of her name on the couple's joint income tax
return is sufficient to demonstrate extrinsic fraud.
However, in order to demonstrate extrinsic fraud, Wife must
show "a material misrepresentation or concealment of assets"
which has prevented her from fully trying her case and that
the other equities such as laches or negligence are not
present. Pilati v. Pilati (19791, 181 Mont. 182, 189, 592
P.2d 1374, 1378. We conclude she has not done so.
Prior to the time of the signing of the separation
agreement, Wife was clearly aware the tax return would soon
be due; that the wine and beer license remained in Husband's
name; that the transfer of the pizza parlor interest had not
been recorded; that Husband could be compelled to produce the
documents; and that she might not receive 50% of the family
assets if the matter was decided by a court. Nonetheless,
Wife voluntarily chose to enter into the settlement agreement
rather than waiting for the documents. Having received the
benefit of the bargain, she will not now be heard to describe
her own decision as fraud. See e .g., Lance v. Lance (1981),
195 Mont. 176, 635 P.2d 571.
We therefore conclude that the District Court correctly
determined there was insufficient evidence of fraud to
justify setting aside the agreement. Wife's attempt to
modify the maintenance provision of the agreement must
similarly fail.
The second specification of error concerns the District
Court's refusal to increase child support from $1,000 per
month to $2,200 per month so that the remaining minor child
can properly engage in ski activities. However, we conclude
that the child's need for a new four wheel drive vehicle and
traveling expenses while skiing is not a change in
circumstances so substantial and continuing as to render the
child support provisions of the original decree
unconscionable within the meaning of § 40-4-208, MCA.
The judgment is affirmed.
/ ' Justice Y
/
I/