NO. 92-268
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
IN RE THE MARRIAGE OF
DOROTHY DAVIES STOUT,
formerly DOROTHY DAVIES GOLLEHON,
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Petitioner and Appellant, .&
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THOMAS F. GOLLEHON, C,d c:..
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Respondent and Respondent. STATE 0;: i i r i i ~ N N A
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APPEAL FROM: District Court of the Ninth Judicial District,
In and for the County of Teton,
The Honorable R. D. McPhillips, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
K. Dale Schwanke; Jardine, Stephenson, Blewett &
Weaver, Great Falls, Montana
For Respondent:
Daniel Donovan, Attorney at Law, Great Falls,
Montana
Submitted on Briefs: June 23, 1993
Decided: October 4, 1993
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
Dorothy Gollehon appeals from the findings of fact,
conclusions of law and decree of dissolution entered by the Ninth
Judicial District Court, Teton County, distributing the marital
estate and declining to award attorney's fees and costs. We
affirm.
The following issues are raised on appeal:
1. Did the District Court err in distributing the marital
property?
2. id the District Court err by declining to award
attorney's fees and costs?
Dorothy Stout (Dorothy) and Thomas Gollehon (Thomas) were
married on December 30, 1987. At Dorothy's request, they signed a
premarital agreement on that date expressing their desire to "keep
separate and apart" their respective assets and obligations
acquired either before or during the marriage.
Prior to the marriage, Dorothy resided on leased property
referred to as the "Kreger Place" near Fairfield, Montana, where
she raised Tarentaise cattle. Dorothy characterized the Kreger
lease as a "sweetheart deal," asserting that she was charged only
one-third the cost of leasing comparable property and was also able
to sublease a portion of the property.
Dorothy moved her cattle onto Thomas' ranch, located eighteen
miles from the Kreger Place, shortly after the marriage. She
intended the cattle to remain there only for the winter and calving
2
season, after which she would return them to the Kreger Place.
However, Thomas insisted that she terminate the lease. Dorothy
claims that Thomas made the forfeiture of the lease a condition for
remaining married; Thomas asserts that she had agreed prior to the
marriage to terminate the lease. In any event, Dorothy
relinquished the lease in early 1988.
Thomas informed Dorothy that he wanted a divorce in April of
1989. Two months later, Dorothy filed a petition to dissolve the
marriage, asserting that it was irretrievably broken and requesting
an equitable division of the marital assets and obligations.
Dorothy subsequently determined that continuing to raise
cattle was not feasible given the loss of the Kreger lease and the
additional expense that would be involved in re-establishing her
ranching operation. As a result, Dorothy sold her cattle at an
auction sale held in October of 1989. Dorothy and Thomas formally
separated later that month.
The District Court held a dissolution hearing on March 22,
1990. On September 25, 1991, the parties stipulated to allow the
court to order the marriage dissolved pending later entry of the
decree of dissolution. The court entered an order dissolving the
marriage on November 1 , 1991 and filed its findings of fact,
conclusions of law and dissolution decree on April 17, 1992. The
court concluded that the parties were entitled to their individual
assets and liabilities as of the termination of the marriage. The
court also ordered that Dorothy and Thomas pay their own attorney's
fees and costs. Dorothy appeals.
Did the District Court err in distributing the marital property?
The ~istrictCourt found that Dorothy and Thomas had executed
a premarital agreement at Dorothy's suggestion and concluded that
the agreement was valid and enforceable. The court also made
extensive findings concerning the factors set forth in 5 40-4-202,
MCA. Based on those findings, the court concluded that it was
equitable for Dorothy and Thomas each to retain their own assets
and liabilities as of the termination of the marriage.
We review a district court's findings of fact relating to the
division of marital property to determine whether they are clearly
erroneous. Marriage of Danelson (1992), 253 Mont. 310, 317, 833
P.2d 215, 219. A district court, however, has no discretion in
determining a question of law; thus, we review a court's conclusion
of law to determine whether it is correct. Danelson, 833 P.2d at
219-20.
The bulk of Dorothy's asserted errors relate to the District
Court's findings under 5 40-4-202, MCA. She contends that a number
of the findings were clearly erroneous because they were not
supported by substantial evidence or reflect the court's
misapprehension of the effect of the evidence. However, because
the ~istrictCourt's conclusion regarding the enforceability of the
premarital agreement is dispositive if correct, we focus initially
on that conclusion.
Dorothy challenges the enforcement of the premarital agreement
on two grounds. First, she contends that she did not enter the
agreement voluntarily because she did not know that Thomas would
insist on the relinquishment of the Kreger lease. Second, Dorothy
asserts that she did not know Thomas1 financial situation when the
agreement was executed.
Thomas and Dorothy executed their premarital agreement on
December 30, 1987. The Uniform Premarital Agreement Act (the Act),
codified at 5 5 40-2-601 through -610, MCA, applies to premarital
agreements executed on or after October 1, 1987. 1987 Mont. Laws,
Ch. 189, Sec. 17. Thus, the Act applies to the agreement before
US.
Section 40-2-608, MCA, of the Act specifically governs the
enforceability of premarital agreements. A premarital agreement
may be set aside under subsection (1) of that statute if the party
seeking to avoid the agreement proves that it was not executed
voluntarily. The sole basis for Dorothy's claim regarding
voluntary execution is her assertion that she did not know Thomas
would insist on termination of the Kreger lease when she signed the
agreement. Even if her assertion is true, Dorothy cites no
authority to support her contention that a lack of knowledge
concerning Thomas' future conduct renders her execution of the
agreement involuntary. Furthermore, the record reflects that the
premarital agreement was executed at her suggestion and drafted by
her attorney. Thus, there is no merit to her contention that she
did not enter into the agreement voluntarily.
Dorothy's assertion that she did not know the extent of
Thomas' assets also provides no basis to preclude enforcement of
the agreement under 5 40-2-608, MCA. A party must prove that a
premarital agreement was unconscionable when executed and that
there was no fair and reasonable disclosure of the other party's
property and financial obligations before the agreement can be set
aside under 5 4 0 - 2 - 6 0 8 ( 2 ) , MCA. Dorothy has not contended that the
premarital agreement was unconscionable at the time of execution.
Indeed, such a position would be untenable considering that the
agreement was executed at her suggestion and drafted by her
attorney. Thus, her assertion that she did not know the extent of
Thomas' property is not a sufficient basis to set aside the
agreement under 5 4 0 - 2 - 6 0 8 ( 2 ) , MCA. We conclude that the ~istrict
Court correctly concluded that Dorothy and Thomasf premarital
agreement was valid and enforceable.
We next turn to the terms of the agreement to ascertain the
distribution of the marital property. The premarital agreement
reflects Dorothy and Thomas' intent "to keep separate and apart"
the assets and liabilities they individually acquired either prior
to or after the marriage. The agreement expressly governs Itany
rights that either might or could have as to the other or the
property owned by the other by reason of said marriage."
Furthermore, the premarital agreement contains Dorothy and Thomas'
mutual waiver of all rights and interests in the other's property
that they might acquire as a consequence of the marriage. Thus,
according to the terms of the premarital agreement, Dorothy was not
entitled to any share of Thomas1 assets upon the dissolution of the
marriage.
Dorothy contends that, even if the premarital agreement
precludes her from obtaining an interest in Thomasf assets that
might have arisen as a consequence of their marriage, it should not
be construed to prevent her from obtaining damages resulting from
the termination of the Kreger lease. Relying on 66 Am. Jur. 2d
Release 14 (19731, she asserts that a person cannot release
another from liability arising out of the other's future acts.
The obvious flaw in Dorothyfs position is that the termination
of the Kreger lease is not relevant to the distribution of property
upon dissolution of the marriage. As discussed above, the
distribution of the marital property is governed by the premarital
agreement in which Dorothy waived all her rights and interest to
Thomasf individually-owned assets acquired either before or during
the marriage. Any appropriate action Dorothy may have for damages
resulting from Thomas' insistence that she relinquish the lease is
separate and apart from the dissolution proceeding and the
distribution of the marital estate therein.
Finally, we turn to Dorothy's alleged errors concerning the
District Court's findings under 5 40-4-202, MCA. She asserts that
the findings did not take into account the financial detriment,
including additional expenses and loss of future income, that she
incurred as a result of Thomasf insistence that she terminate the
Kreger lease. On that basis, she contends that an equitable
distribution of the marital property requires that she be awarded,
at a minimum, $36,837 from Thomasf assets.
Prior to enactment of the Act, a premarital agreement was but
one factor a district court was required to consider when
distributing marital property under 5 40-4-202, MCA (1985). In re
the Marriage of Johnston/~urrin (1992), 255 Mont. 421, 425, 843
P.2d 760, 762. However, the legislature added subsection (5) to 5
40-4-202, MCA, when it passed the Act: that subsection requires
premarital agreements to be enforced as provided by the Act. Thus,
where a premarital agreement is enforceable under the Act, the
property distribution is governed by the agreement and not the
factors set forth in 5 40-4-202, MCA. Therefore, we do not address
Dorothy's asserted errors relating to the court's findings
regarding those factors.
While the District Court erred in applying the § 40-4-202,
MCA, factors rather than relying solely on the valid and
enforceable premarital agreement, its distribution of the marital
property was in accord with that premarital agreement. We hold
that the District Court did not err in distributing the marital
property.
Did the District Court err by declining to award attorney's
fees and costs?
Section 40-4-110, MCA, allows the district court to award
attorney's fees and costs to either party in a dissolution action
after considering the parties' respective financial resources. The
district court has considerable discretion in making such an award.
In re the Marriage of Peetz (1992), 252 Mont. 448, 453, 830 P.2d
543, 549. We will not overturn a court's denial of attorney's fees
absent an abuse of discretion. In re the Marriage of Wackler
(Mont. 1993), 850 P.2d 963, 966, 50 St.Rep. 406, 408.
8
Dorothy asserts that the District Court's only finding
concerning this issue was that she did not include a specific
request in her pleadings. She also contends that her requests for
fgsuch
other and further relief" in her petition and for attorney's
fees in her proposed findings of fact, conclusions of law and
decree were a sufficient basis for the court to award attorney's
fees and costs. Finally, relying on In re the Marriage of Johnsrud
(1978), 175 Mont. 117, 572 P.2d 902, Dorothy contends that the
District Court has jurisdiction to make such an award even absent
a specific request.
Dorothy's assertion that the District Court limited its
findings on attorney's fees to her failure to make a request is not
supported by the record. In addition to that finding, the court
found that she had not demonstrated an inability to pay her own
attorney's fees and costs. According to the court's findings,
Dorothy had sufficient income and assets from which to pay her own
attorney' s fees, including the proceeds of her cattle sale, "loansf'
or gifts from her father, jewelry and other personal property. The
court also found that she had not established the amount and
reasonableness of her attorney's fees and costs.
We conclude that the District Court did not err or abuse its
discretion in declining to award attorney's fees and costs to
Dorothy.
A T firmed.
We concur: