No. 80-71 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

IN RE THE MARRIAGE OF 

RAYMOND C. MILLER, 

Petitioner and Respondent, 

ARLENE MILLER I 

Respondent and Appellant. 

Appeal from: District Court of the Seventeenth Judicial District, 

In and for the County of Valley. 

Honorable M. James Sorte, Judge presiding. 

Counsel of Record: 

For Appellant: 

Oleson Law Firm, Kalispell, Montana 

For Respondent: 

Langen and Nielsen, Glasgow, Montana 

Filed: 

Submitted on briefs: July 11, 1980 

Decided : 

? 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

This is an appeal from a denial to reopen and vacate a 

judgment in a divorce action in the District Court of the 

Seventeenth Judicial District, County of Valley. 

A separation agreement was signed and filed with the 

District Court by the parties October 22, 1976. On March 

28, 1978, respondent, Mr. Miller, finalized the divorce by 

obtaining a decree for dissolution. Appellant, Mrs. Miller, 

argues that this was done without notice to her of entry of 

judgment and that she only received a copy of the final 

decree after it had been obtained. 

In August 1978, Mrs. Miller moved to reopen or vacate 

the judgment. The motion was denied on the grounds that it 

offended Rule 60, M.R.Civ.P. On September 26, 1978, Mr. 

Miller filed a motion for partition of real estate. After 

hearing, the Honorable M. James Sorte issued an order on 

December 21, 1978, indicating that he would only consider 

property acquired by the parties between October 22, 1976 

and March 28, 1978. A motion for reconsideration was filed 

by appellant on June 8, 1979, but was never ruled upon. 

A hearing to determine the rights of the parties in 

real estate acquired between the time of the separation 

agreement and the final decree was conducted on August 24, 

1979. An order including findings of fact, conclusions of 

law and judgment and decree was entered on December 13, 

1979. Mr. Miller filed a notice of entry of judgment one 

week later. 

The Millers were married on November 13, 1974, and 

moved to Richland, Montana, where Mr. Miller had resided 

prior to the marriage. Two years later, on October 22, 
1976, after serious marital problems had developed between 

them, the Millers executed and filed a separation agreement. 

Thereafter Mrs. Miller moved to Kalispell, Montana. 

Mr. Miller followed her, and for sixteen months there were 

attempts to reconcile, resulting in at least a periodic 

marital relationship. During this reconciliation period, 

the Millers purchased two acres of land near Kalispell as 

the site of Mrs. Miller's trailer. The resumption of the 

marital relationship involved short periods wherein the 

parties lived together as husband and wife. Further, for 

the years of 1976 and 1977, the Millers filed joint income 

tax returns. 

On March 28, 1978, Mr. Miller obtained a divorce and a 

default judgment against Mrs. Miller. On August 10, Mrs. 

Miller filed a motion to reopen or vacate the judgment. Mr. 

Miller then moved to partition the real property. Af ter 

hearing on the motions on October 6, 1978, and a final 

hearing on August 24, 1979, the court entered the December 

13, 1979, decree which is now appealed. 

The following issues are raised for our consideration: 

1. What effect did the parties' attempt to reconcile 

have on the separation agreement? 

2. Can marital property be distributed in separate 

hearings without either hearing involving the totality of 

the property? 

3. Is the dissolution of the marriage divisible from 

the other aspects of the decree? 

4. Was there extrinsic fraud on the part of respondent 

so as to deny appellant her "day in court"? 

5. Was the court's final action an "action in real 

property," and if so, was the trial properly conducted under 

section 25-2-103, MCA? 
The record discloses that in the sixteen months between 

the filing of the separation agreement and the date of the 

final decree of dissolution, the Millers attempted a reconciliation. The first issue presented, therefore, is really 

twofold: Was there a reconciliation, and did it revoke the 

separation agreement? 

Reconciliation is the voluntary resumption of a marital 

relationship in the fullest sense, and is a state of mind to 

be determined by the evidence. Keller v. Keller (1932), 122 

Cal.App. 712, 10 P.2d 541. The incidents of reconciliation, 

and the evidence of it, generally include cohabitation where 

possible, sexual relations, and the maintenance of joint 

affairs as husband and wife. In 1927, in the case of Ward 

v. Ward (1927), 81 Mont. 587, 264 P. 667, this Court acknowledged that the revocation of such an agreement is determined by the intent of the parties. However, the intention 

must be to resume married life completely and entirely, and 

not to merely enjoy each other's society temporarily, for 

limited purposes, or as a trial to see if the parties want 

to continue as a married couple. Temporary cohabitation is 

not sufficient evidence of a mutual intent to revoke the 

separation agreement. Ward v. Ward, 81 Mont. at 602, 264 P. 

at 672. 

In the case before us the facts are not conclusive as 

to the existence or nonexistence of a reconciliation. Mrs. 

Miller testified that she and Mr. Miller spent at most three 

months together between December 1976 and ~pril 1978. 

However, they filed joint income tax returns and purchased 

the Flathead County property together. We take note of the 

fact that this periodic state of matrimony may have been 

sufficient under the circumstances in light of the time 

demands placed on Mr. Miller to conduct his Richland business. 

The District Court found there was a reconciliation. 
It is the effect of the reconciliation which is at the 

heart of the issue at bar. We are confronted with the 

characteristics of both a separation agreement and a property settlement agreement inseparably mixed in one instrument. A reconciliation may have a certain effect upon a 

separation agreement and quite another on a settlement 

agreement. Annot., 35 A.L.R.2d 707, 711 (1954). The 

principal functions of a separation agreement are to stipulate that the parties may lawfully live separate and apart 

and to provide for the support of the wife and the custody 

and support of children. Acre v. Koenig (1965), 89 Idaho 

342, 404 P.2d 621, 623. On the other hand, the function of 

a property settlement is to make a full and final disposi- --- 

tion of the parties' rights with respect to joint and 

separate property. Annot., 35 A.L.R.2d at 711. We are 

persuaded by the reasoning in Potts v. Potts (1975), 24 

N.C.App. 673, 211 S.E.2d 815, wherein the court held that 

reconciliation and resumption of the marital relationship, 

and all the incidents thereof, will have no effect upon 

those provisions of the agreement which have already been 

executed. 

In the case before us, the Millers had executed all the 

terms of the agreement relating to the disposition of 

property owned by them as of October 22, 1976. In such a 

case it would require an express intent to revoke, manifested 

by clear and unmistakable action, to void the original 

agreement. We conclude that when the terms of an agreement 

have been executed, and the agreement does not disclose 

overreaching by either party, the instrument is binding as 

to both in the absence of a new agreement. 
If the parties did reconcile, that reconciliation had 

no effect on the provisions which had been completely fulfilled. For this Court to hold otherwise would be an affront 

to the policies of the Uniform Marriage and Divorce Act 

which encourage the amicable settlement of disputes and an 

improper infringement on the individual rights of persons to 

determine their own affairs. 

Appellant's reliance on our decision in Metcalf v. 

Metcalf (1979), Mont. , 598 P.2d 1140, 36 St.Rep. 

1559, is not well founded in its application to her appeal. 

In Metcalf we upheld the well-settled rule that a trial 

court is obligated to determine the net worth of the parties 

at the time of their divorce. See also Grenfell v. Grenfell 

(1979) - Mont. - , 596 P.2d 205, 207, 36 St.Rep. 1100, 

1103. However, the presence of a valid separation agreement 

is fatal to the applicability of the Metcalf rule. The 

trial judge must also honor the statutes of the State of 

Montana and is directed in section 40-4-201, MCA, as follows : 

I' (1) To promote amicable settlement of disputes 

between parties to a marriage attendant upon 

their separation or the dissolution of their 

marriage, the parties may enter into a written 

separation agreement containing provisions for 

disposition of any property owned by either of 

them, maintenance of either of them, and support, custody, and visitation of their children. 

"(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, a£- 

ter 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." (Emphasis added.) 

Unconscionability was never at issue at any time during 

the proceedings. When the District Court complies with such 
a direct statutory mandate, there can be no error. This 

Court takes note of the age of the agreement at the time of 

its incorporation into the final decree. But we will not 

substitute our conclusions for those of the District Court 

in the absence of clear and reversible error. In re Marriage of Kramer (1978), 177 Mont. 61, 580 P.2d 439, 442, 35 

St.Rep. 700, 704. We conclude that marital property can be 

distributed in separate hearings without either hearing 

discussing the totality of the marital estate where there is 

mutual agreement as to its disposition. The rule is well 

reasoned that persons must be able to separate amicably and 

divide their property without interference where such division is feasible. It is not the province of this Court to 

alter decisions and agreements made between husband and wife 

in the absence of compelling injustice. 

Appellant is correct in contending that the net worth 

of the parties is a necessary consideration; however, if 

there is a signed and executed separation agreement, we must 

conclude that the parties themselves have already made a 

determination of their net worth as a basis for their decision. 

Appellant contends that the District Court erred in 

separating the dissolution aspect of the decree from the 

property disposition of the Flathead County property. 

Argued conversely, the claim is that property distribution 

must take place within the same order, the decree being an 

unseverable instrument. The issue has no merit. 

Disposition of such a question can be accomplished by 

referring to the statutes of Montana, the Uniform Marriage 

and Divorce Act. Section 40-4-104, MCA, recites in applicable part: 
"(1) The district court shall enter a decree of 

dissolution of marriage if: 

" (d) to the extent it has jurisdiction to do so, 

the court has considered, approved, or made provision for child custody, the support of any 

child entitled to support, the maintenance of 

either spouse, and the disposition of property 

or - provide -- for a separate,-later hearing to - 

complete these matters." (Emphasis added.) 

Clearly, the legislature intended to grant the District 

Court the power to sever the decree to whatever extent 

necessary to resolve disputes efficiently. 

The District Court must be free to dispose of those 

portions of the decree that are in a condition to be decided. We are persuaded by the comments to the Uniform Marriage and Divorce Act: 

"The phrase, 'considered, approved, or provided 

for, ' in subsection (a) (4) is intended to conf er upon the court the authority to refuse to 

make any award, if the evidence justifies an 

outright denial, as well as the authority to 

make such allotment as the facts require. To 

avoid any doubt, the court is authorized expressly to provide --- for a later hearing -- to cornplete action on these matters, if necessary." 

Uniform Laws Annot., S302, Commissioner's Comment (1973), Vol. 9A at 123. (Emphasis added.) 

We conclude, therefore, that the interests of justice 

and judicial economy are best served by giving District 

Courts broad discretion in the conduct of their proceedings 

and the severance of the various elements of dissolution 

decrees. 

Mrs. Miller assigns two claims of extrinsic fraud 

against Mr. Miller. Extrinsic fraud is that which denies an 

adversary the opportunity to have a trial or fully present 

her side of the case. Selway v. Burns (1967), 150 Mont. 1, 

429 P.2d 640. Cases decided by this Court reveal that the 

prohibited result of denying the other party access to a 

fair trial may be achieved by affirmatively misrepresenting 
facts (State ex rel. Sparrenberger v. District Court (1923), 

66 Mont. 496, 214 P. 85) or by concealment of facts by a 

person who had a legal duty to disclose those facts (Hoppin 

v. Long (1925), 74 Mont. 558, 580, 241 P. 636). Further, it 

has been this Court's longstanding rule that we have the 

inherent power in equity to grant relief from judgments 

obtained by extrinsic fraud. Bullard v. Zimmerman (1930), 

88 Mont. 271, 292 P. 730. However, for this Court to set 

aside a District Court judgment, the fraud complained of 

must be extrinsic or collateral and in no way intrinsic to 

the merits of the case. Khan v. Khan (1940), 110 Mont. 591, 

105 P.2d 665. 

The first allegedly fraudulent exercise upon appellant 

was Mr. Miller's statement to the court during dissolution 

proceedings on March 28, 1978. During those proceedings 

Judge Sorte asked Mr. Miller if the separation agreement 

included and disposed of all of the Millers' marital property. Mr. Miller replied that it did not include the Flathead County property acquired by the parties in the sixteenmonth period between October 1976 and March 1978. Appellant 

challenges that statement as being extrinsic fraud upon the 

court because her husband failed to acknowledge the receipts 

from the course of his farm and ranch business in the Richland area and contends that he had a legal duty to do so. 

We are directed by the language set down in Caldwell v. 

Taylor (1933), 218 Cal. 471, 23 P.2d 758, 760, which this 

Court adopted in Minter v. Minter (1936), 103 Mont. 219, 62 

P.2d 233. In Minter we found that "a showing of fraud 

practiced in the trial of the original action will not 

suffice." 103 Mont. at 230, 62 P.2d at 236. Such fraud is 

intrinsic and does not warrant relief. Moreover, we are not 
convinced that Mr. Miller's statements or concealments, 

whether by mistake or design, in any material way thwarted 

appellant's ability to present her case. On the record we 

see no connection between the concealment and any injury to 

the consideration of Mrs. Miller's case. His alleged 

fraudulent concealment is the "very warp and woof of the 

case itself" and, as such, could at best only constitute 

intrinsic fraud which does not afford this Court the grounds 

to disturb the District Court decree. Minter, 103 Mont. at 

The other claim of fraud charges Mr. Miller with fraudulently inducing the Valley County Clerk of Court to enter a 

default judgment'against Mrs. Miller which stated on the 

printed form, "having failed to appear." Appellant contends 

that she did make a general appearance when she filed an 

admission of service dated October 22, 1976. In that document appellant stated that she did "hereby voluntarily enter 

her general appearance." The conclusion she asks this Court 

to draw is that by obtaining a default,'on a preprinted form 

with the phrase "having failed to appear" on it, she was 

deprived of her "day in court" by means of extrinsic fraud. 

We do not draw that conclusion. 

If appellant relies on that portion of her admission of 

service, she is constrained by the whole of it. In that 

document there is language which reads: 

"Respondent has been fully and fairly advised in the premises, and with full knowledge, declines to answer or otherwise plead 

in such action and consents that her default 

may be entered therein, and that said cause 

may be set down for trial at the convenience 

of the court, and waives notice of such setting and any and all other notices or process 

required by law in the premises." 

By signing the above instrument, Mrs. Miller did more to 

deprive herself of her "day in court" than did any action of 

Mr. Miller. 
We are not persuaded that the inaccuracy on the default 

form constituted fraud. Moreover, even assuming for the 

sake of argument that this were fraud, there is nothing in 

the record or in appellant's argument which discloses that 

this incorrect phrase had any impact whatsoever on Mrs. 

Miller's case or her opportunity to present it. We must 

conclude, as we did in Dudley v. Stiles (1963), 142 Mont. 

566, 386 P.2d 342, that such a small error cannot amount to 

fraud on the court, and we are restrained from exercising 

our equitable prerogatives. 

Mrs. Miller asserts that the order determining the 

rights of the parties in the Flathead County property was a 

"partition" of real property and that those rights must be 

determined by a Flathead County District Court pursuant to 

section 25-2-103, MCA. She concludes that the Valley County 

District Court is "totally without jurisdiction to hear and 

decide such a partition action." We disagree. 

First of all, the statute to which appellant refers is 

a venue statute, not a statute establishing or restricting 

jurisdiction. See sections 3-5-301 et seq., MCA. Clearly, 

any District Court in this state has jurisdiction over a 

civil cause of action such as this. Although section 25-2- 

103, MCA, states that actions involving real property must 

be tried in the county where the property is situated, that 

statute is in pari materia with section 25-2-201, MCA, and 

the two statutes must be read together to determine the true 

intent of the legislature. State ex rel. Foster v. Mountjoy 

(1928), 83 Mont. 162, 271 P. 446. See also section 1-2-102, 

MCA. Section 25-2-201, MCA, recites in applicable part: 

"The court or judge must, - on motion, change 

the place of trial in the following cases: 

" (1) when the county designated is not the 

proper county; . . . " (Emphasis added. ) 
Montana has long followed the rule that although a Distric Court may not be the proper court because of venue 

considerations, the court can nevertheless try the case if 

there is no objection from the parties. This Court is 

guided by our decision in Bullard v. Zimmerman (1928), 82 

Mont. 434, 443, 268 P. 512, 516, wherein we held: 

"Thus, we see, with certain exceptions, of 

which this suit is not one, an action in a 

matter over which the district court has 

jurisdiction may be brought in any county 

of the state and may be tried where brought, 

unless sent elsewhere upon demand of defendant or by agreement . . ." (Emphasis supplied. ) 

The record in this case does not disclose any motion 

for a change of venue which would have required the Valley 

County court to transfer the case to Flathead County. We 

conclude that the judge in Valley County had jurisdiction to 

hear this matter, and we refuse to decide whether that court 

was the proper forum for the trial. The issue on appeal is 

moot and will not be considered. 

We call the attention of the parties and the court to 

the instrument transferring the Flathead County property. 

The instrument is a commonly used joint tenancy deed which 

grants to the parties equal shares in the property and a 

right of survivorship. It is well settled in Montana that a 

right of survivorship accompanies all joint tenancy interests in real property. Hennigh v. Hennigh (1957), 131 Mont. 

372, 377, 309 P.2d 1022. If the intent of the court is to 

grant to each party an undivided one-half interest, some 

additional order or instrument will have to be executed. 

The Millers are not tenants in common, and there exist certain restraints on the free alienation of the property by 

either. Neither party has complete control over their interest 

even though they have equal interest. The joint tenancy 
deed, beyond giving the parties equal interests, has limited 

their individual rights in the property. Section 70-1-307, 

MCA. See First Westside National Bank of Great Falls v. 

Llera (1978), 176 Mont. 481, 580 P.2d 100, 35 St.Rep. 717. 

In conclusion, we must affirm the District Court decision in all respects. We are of the view that the reconciliation could not affect an agreement that had already 

been executed. Further, we can find no serious inequity in 

the agreement that would justify our interference in the 

mutual agreement of the Millers. The District Court did not 

err in making two separate dispositions. Although we do not 

favor such a piecemeal distribution, in cases of valid 

separation agreements which do not dispose of all marital 

property, we must respect the District Court's discretion 

and the integrity of mutual agreements. We find the same 

reasoning persuasive with respect to separating the dissolution from other aspects of the decree. As to the issue of 

extrinsic fraud, we find no fraud which would justify 

disturbing the District Court judgment. Finally, the 

Valley County District Court clearly had jurisdiction, 

and if venue was improper, the court was not required to 

transfer the case without a demand from appellant. No 

motion was made, and, therefore, the objection is not reviewable 

by this Court. 

Af firmed. 
We concur: 

7 Chief Justice L 

Justices !ddL @ .2y