NO. 89-553
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
IN RE THE MARRIAGE OF
ROSS W. CANNON,
petitioner and Appellant,
and
SHARON CANNON,
Respondent and Respondent.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Joseph B. Gary, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
David H. Hull, Helena, Montana
For Respondent:
Charles Graveley, Helena, Montana
Submitted on Briefs: February 22, 1990
Decided: April 10, 1990
Filed:
Justice Fred J. Weber delivered the opinion of the Court.
After a hearing, the District Court for the First Judicial
District, Lewis and Clark County, divided the marital property
between the parties and awarded maintenance to Mrs. Cannon. The
husband appeals. We remand to the District Court for a
redetermination on the distribution of the Honda Prelude. with
that exception we affirm the District Court.
The issues for our consideration are:
1. Did the District Court erroneously fail to address the
separation agreement entered into and signed by the parties?
2. Did the District Court err in the distribution of
specific marital assets?
3. Did the District Court err in awarding maintenance,
considering the facts of the case and the duration of the marriage?
Mr. and Mrs. Cannon were married on June 12, 1985. Two years
later, in June 1987, the parties separated. There were no children
born of the marriage. The ~istrictCourt declared the marriage
dissolved on December 17, 1987, due to irreconcilable differences
arising from the costs of alcoholic treatment for Mrs. Cannon. The
Court reserved judgment on the disposition of the property.
Mr. Cannon testified that he was living in a condominium prior
to his marriage to Mrs. Cannon. He further stated that the 1986
Honda Prelude and the home located at 1075 Woodbridge ("Woodbridge
home1') were acquired during the marriage from savings he had
acquired before the marriage. He testified that Mrs. Cannon
brought tlhouseholdgoods, furniture and jewelry and china and
dishware and flatware and things from previous homes that she'd
lived in1'.
Mrs. Cannon testified that she brought $4000 into the marriage
and sold her complete bedroom set, a washer and dryer, and
everything that they would not need in their home together. She
testified that they did not have a joint bank account, nor did she
have an account of her own. The $4000 went into Mr. Cannon's own
account and was to be used for household expenses. When the couple
first lived together, Mrs. Cannon did not work. However, after
they were married, she worked as a real estate salesperson. She
testified that Mr. Cannon told her to give her paychecks to him
and it probably was used for household expenses. She testified
that Mr. Cannon eventually encouraged her to quit working so that
they could more easily spend time traveling together. She
testified that they traveled several times to London, California,
Washington D.C., and Las Vegas, among others. They also made trips
to Spokane twice a month for shopping. According to Mrs. Cannon's
testimony, Mr. Cannon gave her a desk for her work and gave her the
Honda Prelude for a Valentine's Day gift. The car was in her name.
Mrs. Cannon was attending paralegal school in Great Falls at the
time of the divorce.
On February 1, 1989, the District Court filed it's findings
of facts and conclusions of law with respect to the property
distribution. It ordered that Mrs. Cannon receive the washer,
dryer and refrigerator from the Duplex; all her personal property
at his residence; the 1986 Honda Prelude; the bedspread, mattress
pad, sham pillows and blankets from the master bedroom of the
Duplex; and the desk. It further ordered that Mr. Cannon pay her
maintenance in the amount of $350 per month for the period of four
years so that she may complete her college education. The
maintenance stops if Mrs. Cannon quits college or remarries. Mr.
Cannon was awarded the Duplex, the Woodbridge home, and all items
of personal property not specifically awarded to Mrs. Cannon. He
was further ordered to pay the debts secured by the duplex, the
Woodbridge home and the Honda Prelude. The parties were ordered
to share the costs of her alcohol treatment. Mr. Cannon appeals.
We affirm in part and remand in part.
I
Did the District Court erroneously fail to address the
separation agreement entered into and signed by the parties?
Mr. Cannon contends that the District Court erroneously failed
to address an agreement which the parties had signed. He testified
that he took the agreement to Mrs. Cannon and offered her an
ultimatum - sign the agreement or the marriage would not continue.
He also testified he was uncertain whether she had consulted with
her attorney before signing.
Mrs. Cannon maintains that the agreement was unenforceable
because it was entered into under undue influence. She contends
she was undergoing treatment for alcoholism when Mr. Cannon induced
her to sign the agreement by telling her she would not have a home
to return to and that the marriage would be over unless she signed.
The only item of property which would be covered by this
4
agreement, if it is to be classed as a separation agreement, is the
Honda Prelude. This issue is limited to the distribution of the
Honda Prelude.
The agreement signed by both parties in pertinent part
provided:
In the event the parties dissolve their marriage:
It is further agreed that wife has no interest in
the 1986 Honda since the source of funds for the purchase
of the same - has come solely from husband1 business,
s
which is his sole and separate property. . . .
In the event the parties dissolve their marriage:
Wife hereby waives, releases, foregoes, and
disclaims all her rights in any and all property, real,
personal, or mixed, wheresoever situated, of which
husband is or may become seized or possessed. . .
The effect of the foregoing provisions is that Mrs. Cannon agreed
she had no interest in the Honda Prelude, and further agreed that
if the marriage were dissolved, she released and disclaimed any
right in such automobile. The District Court failed to refer to
the agreement in its findings and conclusions.
Section 40-4-201, MCA, provides in pertinent part:
(2) In a proceeding for dissolution of marriage . . . the
terms of the .separation agreement . . . 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 . . . that the
separation agreement is unconscionable.
(3) If the court finds the separation agreement
unconscionable, it may request the parties to submit a
revised separation agreement or may make orders for the
disposition of property. .. .
The record contains substantial evidence which the District Court
may consider on the issue of unconscionability. Unfortunately the
District Court has not addressed that issue. We therefore remand
to the District Court to determine if the so called separation
agreement is unconscionable with regard to the distribution of the
Honda Prelude. Following that determination, the District Court
shall make such distribution of the Honda Prelude as it finds to
be appropriate.
Did the District Court err in the distribution of specific
marital assets?
This issue shall apply to all distributed property with the
exception of the Honda Prelude which is controlled by the preceding
issue.
The standard of review on the part of this Court is set forth
in Marriage of Stewart (1988), 232 Mont. 40, 42, 757 P.2d 765, 767:
A District Court has far-reaching discretion in dividing
the marital property. Our standard of review is that the
District Court's judgment, when based upon substantial
credible evidence, will not be altered unless a clear
abuse of discretion is shown.
We have reviewed the record and conclude that the District Court
did not SO abuse its discretion. The District Court made clear
and complete findings of fact, after considering all the relevant
factors as set out in 540-4-202, MCA, for the division of property.
It found that both parties made llunreasonablell
requests for the
property division in light of the short duration of the marriage
and the few assets acquired, and divided the property in an
equitable manner. We hold that the District Court did not err in
the distribution of specific marital assets. This holding does not
cover the Honda Prelude referred to under Issue I.
Did the District Court err in awarding maintenance,
considering the facts of the case and the duration of the
marriage?
Mr. Cannon maintains that maintenance should be awarded only
in very limited circumstances and that it was improper to award
maintenance in this case. He contends that Mrs. Cannon failed to
show her lack of ability to support herself; that she does not
need, at age 50, to go back to college to earn a degree; and he
emphasizes the short duration of the marriage. Last, he urges that
he is unable to pay the maintenance requested.
Mrs. Cannon asserts that she was working as a real estate
agent when the couple was first married, but quit at his insistence
so she would be free to travel with him. She also contends that
any paychecks she-received were given to him and deposited in his
account. Consequently, she had acquired no savings with which to
even attempt to support herself.
The District Court found that Mrs. Cannon was a recovering
alcoholic, was 50 years old, had no assets nor retirement, was
attending college, and was in need of maintenance so that she could
complete her education and then support herself for the rest of her
life. The court further noted that:
[ulnder the circumstances . . . with the ability of [Mr.
Cannon] to earn money as an attorney and (sic) has the
ownership of assets such as the duplex that can return
money and increase equity, has a Keogh plan, some Public
Employees Retirement earnings, and Air Force Retirement
[Mr. Cannon] is capable of earning sufficient monies to
pay maintenance to [Mrs. Cannon] for a period of four (4)
years so that she can obtain an education so as to
support herself for the rest of her life.
Section 40-4-203, MCA, allows the court to award maintenance:
only if it finds that the spouse seeking maintenance:
(a) lacks sufficient property to provide for his
reasonable needs; and
(b) is unable to support himself through
appropriate employment. . .
It further requires the court to consider the financial resources
of the party seeking maintenance; the time necessary to acquire
sufficient education or training to enable the party seeking
maintenance to find appropriate employment; the standard of living
established during the marriage; the duration of the marriage; the
age and health of the party seeking maintenance; and the ability
of the spouse from whom maintenance is sought to meet his needs
while meeting those of the spouse seeking maintenance. Again, the
record is clear that the District Court carefully considered all
of these factors. We hold that the District Court did not err in
awarding maintenance.
We remand to the District Court for its determination in
connection with the Honda Prelude as described under Issue I. With
that exception we affirm the District Court.
We Concur:
cb
Justices