July 3 2012
DA 11-0192
IN THE SUPREME COURT OF THE STATE OF MONTANA
2012 MT 140N
IN RE THE MARRIAGE OF
DAVID W. JOHNSON,
Petitioner, Appellee and Cross-Appellant.
and
MARY E. JOHNSON, n/k/a MARY E. BLACK,
Respondent and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. DDR 03-226
Honorable Katherine M. Irigoin, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Daniel J. Flaherty, Attorney at Law; Great Falls, Montana
For Appellee:
Joan E. Cook, Attorney at Law; Missoula, Montana
Submitted on Briefs: April 17, 2012
Decided: July 3, 2012
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), 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 Mary E. Johnson, n/k/a Mary E. Black (Mary) and David W. Johnson (David) were
married on June 12, 1993. In May 2003, David filed a petition for dissolution and in June 2003
the parties entered a Settlement Agreement, which distributed the marital estate. Mary was
served and defaulted. A decree of dissolution was entered on June 23, 2003, incorporating the
provisions of the parties’ Settlement Agreement and finding it was not unconscionable. The
decree stated that “there are no minor children of the parties hereto, and [Mary] is not pregnant at
this time.”
¶3 In 2007, Mary filed an action to set aside the decree, alleging that David had failed to
disclose and list properties in the Settlement Agreement, and requesting that the marital estate be
re-distributed. On November 25, 2008, in response to Mary’s motion for summary judgment, the
Eighth Judicial District Court, Hon. Dirk M. Sandefur presiding, entered an order setting aside
the marital property division. The court concluded that the underlying default judgment and
decree had been entered “without requiring compliance with the final disclosure and certification
requirements of §§ 40-4-253(1) and 40-4-254, MCA, and without good cause for waiver.
Therefore, as a matter of law, the underlying property rights judgment was void ab initio in
contravention of § 40-4-254, MCA.” The court further concluded that David “knowingly failed
to disclose material items of property and assets” and made affirmative misrepresentations to
Mary to induce an uncontested judgment, which “constitute[d] extrinsic fraud sufficient to
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warrant setting aside of the resulting void property rights judgment as a matter of equity in order
to fairly and properly account for, value, characterize, and equitably distribute the undisclosed
property and assets in consideration of the parties’ prior settlement agreement.” The court
denied Mary’s motion for an award of undisclosed properties as a matter of law, and ordered
further proceedings.
¶4 The matter was heard before the District Court, Hon. Katherine M. Irigoin presiding, on
October 27 and 28, 2010. The District Court emphasized that the proceeding before the court
“related only to undisclosed property.” (Emphasis in original.) The status of numerous
properties was contested by the parties, including whether the properties had been disclosed or
sufficiently disclosed in the Settlement Agreement. The court entered findings of fact,
conclusions of law and a decree of distribution. The court categorized the properties as David’s
pre-marital disclosed property, David’s pre-marital undisclosed property, marital property
equitably divided by the Settlement Agreement, and marital property not disclosed by the
Settlement Agreement, which was subject to equitable distribution. The court determined that
“Mary presented no reliable evidence of the existence or value of business money, securities,
cabin furnishings, personal property (including farm and ranch property and equipment), or a lot
worth $50,000 in Cascade County”; “provided no evidence of 1993 baseline values of David’s
pre-marital assets”; and “presented no evidence of the value or percentage of her contributions to
any increase in value of pre-marital assets” except for the residence, for which Mary was
awarded half of the value of the improvements. The court ultimately determined that Mary was
entitled to a total payment in the sum of $69,948.65 for the value of undisclosed assets, with
interest thereon at 10 percent per annum from June 23, 2003. The court ordered each party to
bear his or her own attorney fees and costs.
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¶5 The court gave brief mention to frozen embryos the parties had prepared for purposes of
in vitro fertilization, stating that Mary testified that she should receive the embryos and that
David testified that he objected to Mary receiving the embryos and requested they be donated to
science. The court ordered that they be donated to science.
¶6 On appeal, Mary challenges the District Court’s property distribution and assessment of
attorney fees. David cross-appeals the District Court’s determination to grant Mary some of his
pre-marital property. Mary relies primarily upon the provisions of the Settlement Agreement,
arguing that she was entitled to one-half of the value of all properties not disclosed in the
Agreement, including David’s pre-marital properties, and payment of her attorney fees, as a
matter of law. However, in voiding the original judgment, the District Court noted that “neither
party served a final disclosure” as required by statute and acted in equity to order further
proceedings to “value, characterize, and equitably distribute the undisclosed property and assets
in consideration of the parties’ prior settlement agreement.” The court denied Mary’s motion to
an award of undisclosed assets as a matter of law. Thus, even though the Settlement Agreement
was a relevant consideration, the valuation and characterization of the property of the estate
remained central issues in the subsequent proceedings. Mary failed in various respects in the
subsequent proceedings to sufficiently take up these evidentiary questions, and thus failed to
carry her burden of proof on many property issues and the attendant issue of attorney fees. We
further conclude the District Court did not err in awarding some of David’s pre-marital property
to Mary.
¶7 Mary also challenges the District Court’s order donating the parties’ embryos to science.
The court’s order consisted of a single sentence with no analysis. Exhibit A to the parties’
original Settlement Agreement stated, in part: “The parties acknowledge that they have
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contractual relations with Midwest Reproductive Medicine. Their agreement is governed by the
terms of that specific contract signed by Mary E. Johnson on November 20, 1999, and David W.
Johnson on November 11, 1999.” The contract with Midwest Reproductive Medicine referenced
here is not included in the record of this case. An email message in the record purports to set
forth two provisions taken from an “unsigned copy of the ‘Midwest Reproductive Medicine
Embryo Cryopreservation Consent.’”
¶8 As noted above, this proceeding was ordered in equity to address only the classification,
valuation, and distribution of marital property not disclosed in the parties’ Settlement
Agreement. The asserted reproductive contract was disclosed in the Settlement Agreement,
which states that the parties’ rights regarding the embryos are “governed by the terms of that
specific contract.” However, that governing contract is not part of the record, and this issue was
not ordered to be a part of this proceeding. Disposition of embryos raises potentially complex
issues, including those related to the parties’ contract. See In re Marriage of Witten, 672 N.W.2d
768, 771-83 (Iowa 2003). We conclude that the embryo issue is not properly before the courts
within this proceeding. We reverse the District Court’s order donating the embryos to science
and leave the issue to be addressed in the appropriate proceeding.
¶9 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our
Internal Operating Rules, which provides for noncitable memorandum opinions. Except for
those related to the embryo issue, the District Court’s findings of fact are supported by
substantial evidence and the legal issues are controlled by settled Montana law, which the
District Court correctly interpreted. Judicial discretion related to the distribution of marital
property was properly exercised without an abuse of discretion.
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¶10 Affirmed in part, reversed in part, and remanded for entry of an amended decree
consistent with this Opinion.
/S/ JIM RICE
We concur:
/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ BETH BAKER
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Marriage of Johnson
Combined Opinion