NO. 91-335
IN THE SUPREME COURT OF THE STATE OF MONTANA
IN RE THE MARRIAGE OF
MARY B. LASKEY,
Petitioner and Respondent,
and
FREDERICK H. LASKEY,
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Joel G. Roth, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Michael S. Smartt, Great Falls, Montana
For Respondent:
Joan E. Cook; Miller & Cook, Great Falls, Montana
Submitted on Briefs: January 23, 1992
Decided:
. ~...- April 10, 1992
..-
Filed:
Justice R. C. McDonough delivered the Opinion of the Court.
Frederick K. Laskey appeals from an order of the ~ i g h t h
Judicial District Court, Cascade County, modifying the decree of
dissolution. We reverse.
The sole issue on appeal is whether the District Court erred
in modifying the decree of dissolution as to the family home and
as to the husband's military pension.
Frederick H. Laskey and Mary B. Laskey were married September
22, 1971. The parties have four children, three of which are
minors. The parties separated in March of 1985 and entered into a
written separation agreement dated June 21, 1985. The husband's
military pension was not specifically mentioned in the agreement.
The pertinent part of the separation agreement reads as
follows :
Section Three
Property Division
The parties have heretofore divided the properties,
both real and personal, which they owned either together
or separately, as follows: . , .
3. House at 3716 2nd Avenue South, Great Falls,
Montana, is to remain in joint tenancy but that wife is
to be given a power of attorney so that she has the
option to sell the house with the proceeds to be divided
equally; . ..
Section Four
Release of Property and Estate Rights
Each party hereby waives, relinquishes, and releases
all right and claim in or to the property of the other,
including all rights of dower and curtesy . ..
Section Eight
Independent Representation by Counsel
In connection with her status, rights, privileges,
duties, and obligations, and the preparation of this
agreement, the wife has been independently represented by
and has had the benefit of the counsel and advise of
Scott M. Radford, a member of the Bar of the State of
Montana and State of California. The husband has not
sought counsel and has done this knowingly and
voluntarily.
Section Nine
Modification
This agreement is to be modified only by written
agreement signed by both parties.
The separation agreement was incorporated into the decree of legal
separation on August 15, 1985. The Honorable Judge Bradford, in
this decree, found the parties made a reasonable division of their
property. Section 40-4-201, MCA (1985), governs separation
agreements. It provides in part:
(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 1989, the husband filed a petition for dissolution. Notice
of entry of decree was entered and served on July 11, 1990. The
District Court, in its findings of fact, found that husband's
military pension was not specifically included in the separation
agreement but that it was included within the general terminology
of the separation agreement.
Wife subsequently filed a motion for reconsideration. On
reconsideration, the District Court found that the absence of any
mention of the military pension was intentional and did not
constitute a waiver or relinquishment of the pension by the wife.
The District Court based this finding on the fact that wife's
attorney advised her that she had a vested interest in the pension
and that mention of the military pension was not required.
The District Court awarded the wife 50 percent of the military
pension accrued during the marriage. In regards to the family home
the court ruled that the trial date would be the date to determine
the equity of the family home. The court divided the equity in the
house equally between the parties at the time of sale. The wife
was to pay the husband his share at the time of sale, and the
property was to be sold no later than six months following the date
the youngest child of the marriage reaches majority.
Our standard of review is whether or not the District Court
abused its discretion in applying Rule 60(b)(6), M.R. Civ.P., to the
motion for reconsideration. Marriage of Lorge (1984), 207 Mont.
The District Court, in relieving wife of its prior judgment,
relied on Rule 60(b)(6), M.R. Civ.P. Rule 60(b)(6) provides:
On motion and upon such terms as are just, the court
may relieve a party or a party's legal representative
from a final judgment, order, or proceeding for the
following reasons:
...
(6) any other reason justifying relief from the
operation of the judgment.
Section 40-4-208(3), MCA (1991), governs modification of property
dispositions; it provides:
The provisions as to property disposition may not be
revoked or modified by a court, except:
(a) upon written consent of the parties; or
(b) if the court finds the existence of conditions
that justify the reopening of a judgment under the laws
of this state.
Under g 40-4-201(3), MCA, which governs separation agreements, the
standard that would justify reopening the judgment is
unconscionability.
Wife is not arguing that the separation agreement is
unconscionable. She asserts that since the military pension was
not mentioned in the agreement, her entitlement to it has yet to be
decided. Recently, we reviewed a similar case involving a
separation agreement which did not specifically mention the
military pension. Patzer v. Patzer, 234 Mont. 34, 792 P.2d 1101.
Mrs. Patzer did not claim the agreement was unconscionable. Patzer
at 38, 792 P.2d at 1103. She also argued that the district court
did not consider the military pension because it was not mentioned
in the separation agreement. Patzer at 36-37, 792 P.2d at 1102.
We said that a separation agreement did not have to mention every
single item of property the parties hold at the time of their
dissolution. Patzer at 38, 792 P.2d at 1103.
The military pension was part of the marital estate when the
separation agreement was drafted and signed. The wife was aware
at the time of the agreement that her husband would receive a
military pension. The wife has presented no facts evidencing
unconscionability, nor has she alleged the agreement was
unconscionable.
In Patzer, we affirmed our position that military pensions are
marital assets subject to equitable distribution. Patzer at 37,
792 P.2d at 1103 citing In re Marriage of Miller (1980), 187 Mont.
286, 609 P.2d 1185. In 1981, the United States Supreme Court held
that federal law precluded state courts from dividing military
retirement pay pursuant to state community property or equitable
distribution laws. McCarty v. McCarty (1981), 453 U.S. 210, 69
L.Ed.2d 589, 101 S.Ct. 2728. However, the United States Congress
essentially overturned that decision in 1983, allowing the states
to apply the law of their respective jurisdictions. See 10 U.S.C.
5 1408 (1983). As noted, the separation agreement was signed in
1985.
In Patzer, as here, the separation agreement stated it was a
full and final settlement of their property rights. Patzer at 38,
792 P.2d at 1103. The separation agreement signed by the Laskeys
in Section Four above, recited each party's relinquishment to the
property of the other. While the language of the Laskey separation
agreement is not as strong as the wording of the Patzer agreement,
it accomplishes the same finality regarding property not
specifically mentioned therein.
For the reasons set forth above, we conclude that it was
reversible error for the District Court to reopen the decree absent
a finding of unconscionability as required by statute. Therefore
we reverse the order of the District Court and remand for
proceedings not inconsistent with this opinion.
We Concur: A
-
Chief Justice
Justices
Justice Fred J. Weber dissents as follows:
I agree with the majority holding that under g 40-4-201(3),
MCA, which covers separation agreements, the standard that would
justify reopening the judgment is unconscionability. In substance
the majority appears to conclude that because the wife is not
arguing that the separation agreement is unconscionable, it is
proper to conclude the court's order modifying the dissolution
decree was reversible error on the part of the District Court.
The Findings of Fact Conclusions of Law and Order, dated
December 21, 1990, on the part of the District Court, pointed out
that the motion to reconsider came on for hearing on December 19,
1990, and that Mrs. Laskey and her counsel were present but that no
appearance was made by Mr. Laskey or his counsel. Mrs. Laskey
presented witnesses and the court made the following pertinent
findings of fact and conclusions:
FINDINGS OF FACT
* * * *
3. That the Legal Separation proceedings were never
intended to serve as a complete legal division of the
partiesv marital assets.
4. During the proceedings to obtain a Legal Separation,
Mr. Radford [Mrs. Laskeyvsattorney] informed Mrs. Laskey
that she was entitled to a portion of Mr. Laskeyvs
pension. It was Mr. Radfordts understanding that the
military pension was controlled by federal statute and
that it was not required that the military pension be
specifically mentioned as a divisible marital asset in
the Separation Agreement.
5. That the absence of any mention of the military
pension was intentional and did not constitute a waiver
or relinquishment of Mr. Laskeyvs military pension as a
marital asset.
* * * *
10. Mr. Laskey has offered to give Mrs. Laskey the
entirety of the marital real property as well as
increased child support should she waive the receipt of
his military pension. This offer was never accepted.
11. That at no time did Mrs. Laskey receive a marital
asset which would have served as adequate consideration
for a waiver of rights to a share of her husband's
military pension.
18. That as of this date, the military pension of Mr.
Laskey has not been divided between the parties, nor has
the real property accumulated by the parties located at
3716 2nd Ave. South, Great Falls, Montana.
CONCLUSIONS OF LAW
3. That facts of this case presented at hearing clearly
justify this court using its discretion to equitably
relieve Petitioner [Mrs. Laskey] from the operation of
the ruling made by this Court on June 7, 1990.
4. That Petitioner, Mary B. Laskey has not relinquished
or waived her right to her husband's military pension.
5. That there was a lack of adequate consideration
present for such a contract of waiver or relinquishment
t o have been effected.
6. That the real property of the parties accumulated
during t h e marriage, as well as the Respondent's military
pension have yet to be divided between the parties in the
dissolution proceeding.
The District Court based its conclusions of law on Rule 6 0 ( b ) ( 6 ) ,
M.R.Civ.P. Notwithstanding any statements made in the Separation
Agreement, the uncontradicted findings of fact on the part of the
District Court establish that Mrs. Laskey understood she was
entitled to a portion of the pension and that it was not required
that the military pension be mentioned in the Separation Agreement;
that the absence of a mention of the military pension was
intentional and did not constitute a waiver on the part of Mrs.
Laskey; and that Mrs. Laskey did not receive adequate consideration
for a waiver of her rights as to the military pension. The
District Court concluded that such facts clearly justified using
its discretion to "equitably relieve" Mrs. Laskey from the
operation of the ruling previously made. We note that the previous
ruling on the part of the District Court was its holding that the
military pension had been waived due to the language of the
Separation Agreement which is the position taken by the majority
opinion.
While it is true that the District Court did not use the term
unconscionable, it did conclude that it was justified in using its
discretion to equitably relieve Mrs. Laskey from its previous
ruling. The majority opinion states that Mrs. Laskey has presented
no facts evidencing unconscionability. I conclude the following
findings of fact of the District Court evidence unconscionability:
The absence of any mention of the military pension was intentional
and did not constitute a relinquishment of claim to the military
pension; Mrs. Laskey's understanding through her attorney that the
military pension need not be mentioned in the Separation Agreement;
and at no time did Mrs. Laskey receive adequate consideration for
a waiver of her rights in the military pension. I would therefore
affirm the ~istrictCourt.
The majority opinion relies on the Patzer case. There are a
number of factual distinctions between the two cases. In the
Patzer case, the ~istrictCourt considered a separation agreement
as a part of the dissolution proceeding and specifically found the
agreement was not unconscionable. In the present case, the
separation agreement was entered into in 1985 and the dissolution
took place in 1990. There was no finding of the absence of
unconscionability in the present case as was present in Patzer. I
therefore do not find the Patzer holding contro