### 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 MILLERI 

### Respondent and Appellant.

Appeal from: District Court of the Seventeenth Judicial District, In and for the County of Valley. HonorableM. 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:

? 

### ClerkMr. 

### Justice John Conway Harrison delivered the Opinion of the Court. This 

### is an appeal from a denial to reopen and vacate a judgment ina divorce action inthe DistrictCourt of the Seventeenth Judicial District, County of Valley. A 

### separation agreement was signed and filedwith the DistrictCourt 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 thiswas done without notice to her of entryof judgment and that she only received a copy of the final decree after it had been obtained. InAugust 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 thathe 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 todetermine 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 entryof judgment one week later. The Millers were married on November 13, 1974, and moved toRichland, Montana, where Mr. 

### Miller had resided prior to the marriage. Two years later, on October 22,1976, after seriousmarital 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 sixteenmonths there

### were attempts to reconcile, resulting in atleast a periodic marital relationship. During this reconciliation period, theMillers purchased two acres of land near Kalispell as the 

### site of Mrs. Miller's trailer. The resumption of the marital relationship involved shortperiods wherein the parties lived together ashusband 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 againstMrs. Miller. On August 10, Mrs. Miller filed a motion toreopen or vacate the judgment. Mr. Millerthen moved topartition the real property. After 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 

### isnow appealed. The following issues areraised for our consideration: 1. What effect did the parties' attempt toreconcile 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. Wasthere extrinsic fraud on the partof respondent

so as todeny appellant her "day in court"? 5. Was the court's final action an "action inreal property," and if so, was the trial properly conducted under section 25-2-103, MCA?The record discloses that inthe sixteen months between the filing of the separation agreement and the date of the final decree of dissolution, the Millers attempted a reconciliation. The firstissuepresented, therefore, 

### isreally 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 stateof 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 ashusband and wife. In 1927, in the case of Ward

v. Ward (1927), 81Mont. 587, 264 P. 667, this Court acknowledged that the revocation of such an agreement 

### is determined by the intentof the parties. However, the intention must be toresume married lifecompletely and entirely, and not tomerely enjoy each other's society temporarily, for limited purposes, or asa trialto see if the parties want tocontinue asa married couple. Temporary cohabitation 

### is not sufficient evidence of a mutual intent to revoke the separation agreement. Ward v. Ward, 81Mont. at602, 264 P. at672. In the case before us the facts arenot conclusive as to the existence or nonexistence of a reconciliation. Mrs. Miller testified that she and Mr. Miller spent atmost three months together between December 1976 and ~pril 1978. However, they filedjoint income tax returns and purchased the Flathead County property together. We take note of the fact that thisperiodic stateof matrimony may have been sufficient under the circumstances in lightof the 

### time demands placed on Mr. Millertoconduct his Richland business. The District Court found there was a reconciliation.It 

### is the effectof the reconciliation which 

### is atthe heart of the issue atbar. We are confronted with the characteristics of both a separation agreement and a property settlement agreement inseparably mixed inone instru

### ment. A reconciliation may have a certain effectupon 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 toprovide 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 tomake 

### a full and final disposi- 

### --- tion of the parties' rights with respect tojoint and separateproperty. Annot., 35 A.L.R.2d at711. We are persuaded by the reasoning inPotts 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 allthe incidents thereof, 

### willhave no effectupon those provisions of the agreement which have already been executed. In the case before us, the Millers had executed allthe terms of the agreement relating to the disposition of property owned by them asof October 22, 1976. In such a

case 

### it would require an express intent to revoke, manifested by clear and unmistakable action, tovoid the original agreement. We conclude thatwhen the terms of an agreement have been executed, and the agreement does not disclose overreaching by either party, the instrument 

### is binding as toboth 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 thisCourt tohold 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 inMetcalf v. Metcalf (1979), Mont. 

## , 598 P.2d 1140, 36 St.Rep. 1559, 

### isnot well founded in

### its application toher appeal. InMetcalf we upheld the well-settled rule that a trial court 

### isobligated todetermine the net worth of the parties atthe 

### timeof 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 trialjudge must alsohonor the statutesof the State of Montana and 

### isdirected in section 40-4-201, MCA, as follows:

I' (1)To promote amicable settlement of disputes between parties to a marriage attendantupon 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, arebinding 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 atissue atany 

### timeduring the proceedings. When the District Court complies with sucha direct statutorymandate, there can be no error. This Court takes note of the age of the agreement atthe 

### timeof 

### its incorporation into the final decree. But we 

### willnot substitute our conclusions for those of the DistrictCourt in the absence of clear and reversible error. In reMarriage of Kramer (1978), 177 Mont. 61, 580 P.2d 439, 442, 

### 35 St.Rep. 700, 

### 704. We conclude thatmarital property can be distributed in separatehearings without either hearing discussing the totality of the marital estatewhere there 

### is mutual agreement as to 

### itsdisposition. The rule 

### is

### well reasoned thatpersons must be able to separate amicably and divide their property without interference where such division 

### is feasible. It 

### isnot the province of this Court to alter decisions and agreements made between husband and wife inthe absence of compelling injustice. Appellant 

### is correct incontending 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 thatproperty 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 statutesof Montana, the Uniform Marriage and Divorce Act. Section 40-4-104, MCA, recites inapplicable part:"(1)The district court shall enter a decree of dissolution of marriage if:

"(d) to the extent 

### it has jurisdiction todo so, the court has considered, approved, ormade 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 towhatever extent necessary toresolve disputes efficiently. The DistrictCourt must be free to dispose of those portions of the decree that are in a condition to be decided. We arepersuaded by the comments to the Uniform Marriage and Divorce Act: "The phrase, 'considered, approved, or provided for,

### ' in subsection (a)(4) 

### is intended toconferupon 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 

### toprovide --- for a later hearing to corn

### -- plete action on thesematters, 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 arebest served by giving District Courts broad discretion inthe conduct of theirproceedings and the severance of the various elements of dissolution decrees. Mrs. Miller assigns two claims of extrinsic fraud against Mr. Miller. Extrinsic fraud 

### is thatwhich denies an adversary the opportunity tohave a trial or fullypresent her side of the case. Selway v. Burns (1967), 150 Mont. 1, 429 P.2d 640. Cases decided by thisCourt reveal that the prohibited result of denying the other party access to a fair trialmay be achieved by affirmatively misrepresentingfacts (Stateex 

### rel. Sparrenberger 

### v. DistrictCourt (1923), 66 Mont. 496, 214 P. 85) orby concealment of factsby a person who had a legal duty todisclose those facts (Hoppin



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

### it has been thisCourt's longstanding rule that

### we have the inherent power inequity togrant relief from judgments obtained by extrinsic fraud. Bullard 

### v. Zimmerman (1930), 88 Mont. 271, 292 P. 730. However, for thisCourt to 

### set aside a DistrictCourt judgment, the fraud complained of must be extrinsic orcollateral and inno way intrinsic to the

### meritsof the case. Khan 

### v. Khan (1940), 110Mont. 591, 105P.2d 665. The firstallegedly fraudulent exerciseupon appellant

was Mr. Miller's statement to the court during dissolution proceedings on March 28, 1978. During those proceedings Judge Sorte asked Mr. Millerif the separation agreement included and disposed of allof theMillers' 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 asbeing 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 thathe had a legal duty todo so. We are directed by the language 

### set down inCaldwell v. Taylor (1933), 218 Cal. 471, 23 P.2d 758, 760, which this Court adopted inMinter v. Minter (1936), 103Mont. 219, 62 P.2d 233. InMinter 

### we found that "a showing of fraud practiced in the trial of the original action 

### willnot suffice." 103Mont. at230, 62 P.2d at236. Such fraud 

### is intrinsic and does not warrant relief. Moreover, 

### we are notconvinced thatMr. Miller's statements or concealments, whether by mistake ordesign, in any material way thwarted appellant's abilitytopresent her case. On the record 

### we

see no connection between the concealment and any injury to the considerationof Mrs. Miller's case. His alleged fraudulent concealment 

### is the "verywarp and woof of the

case itself" and, as such, could atbest only constitute intrinsic fraud which does not afford this Court the grounds todisturb the 

### District Court decree. Minter, 103Mont. at

The other claim of fraud charges Mr. Millerwith fraudulently inducing theValley County Clerk of Court to enter a default judgment'against Mrs. Millerwhich stated on the printed form, "having failed to appear." Appellant contends that she didmake a general appearance when she filed an admission of service dated October 22, 1976. In thatdocument appellant stated that she did "hereby voluntarily enter her general appearance." The conclusion she asks this Court todraw 

### is thatby obtaining a default,'on 

### a preprinted form with the phrase "having failed to appear" on 

### it, she was deprived of her "day incourt" by means of extrinsic fraud. We do not draw that conclusion. If appellant 

### relies on thatportion of her admission of service, she 

### is constrained by thewhole of it. In that document there 

### is language which reads: "Respondent has been fully and fairly advised inthe premises, and with fullknowledge, declines to answer or otherwise plead in such action and consents thather default may be entered therein, and that said cause may be 

### set down for trialatthe convenience of the court, and waives notice of such setting and any and allother notices orprocess required by law inthepremises." By signing the above instrument, Mrs. Miller did more to deprive herself of her "day incourt" 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 thiswere fraud, there 

### isnothing in the record or inappellant's argument which discloses that this incorrectphrase had any impact whatsoever on Mrs. 

### Miller's case or her opportunity topresent it. Wemust conclude, as

### we did inDudley 

### v. Stiles (1963), 142Mont. 566, 386 P.2d 342, that such a small error cannot amount to fraud on the court, and 

### we arerestrained from exercising

our equitableprerogatives. Mrs. Millerasserts that the order determining the rights of the parties inthe Flathead County property was a "partition" of real property and that those rightsmust be determined by a Flathead County DistrictCourt pursuant to section 25-2-103, MCA. She concludes that theValley County DistrictCourt 

### is "totallywithout jurisdiction tohear and decide such a partition action." We disagree. Firstof all, the statutetowhich appellant refers 

### is

a venue statute, not a statuteestablishing orrestricting jurisdiction. See sections 3-5-301 

### et seq., MCA. Clearly, any DistrictCourt inthis statehas jurisdiction over a civilcause of action such asthis. Although section 25-2- 103, MCA, states that actions involving realproperty must be tried in the county where the property 

### is situated, that statute

### is inparimateria with section 25-2-201, MCA, and the two statutesmust be read together to determine the true intent of the legislature. Stateex 

### rel. Foster 

### v. Mountjoy (1928), 83Mont. 162, 271 P. 446. See also section 1-2-102, MCA. Section 25-2-201, MCA, 

### recites inapplicablepart: "The court orjudge must, 

## - on motion, change theplace of trial inthe following cases: 

### "(1)when the county designated 

### isnot the proper county; 

# ..." (Emphasis added.)Montana has long followed the rule that although a DistricCourt may not be the proper court because of venue considerations, the court can nevertheless try the case if there 

### isno objection from the parties. This Court 

### is guided by our decision inBullard 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 districtcourt has jurisdiction may be brought inany county of the state and may be triedwhere brought, unless sent elsewhere upon demand of defendant or by agreement 

# .

# . ." (Emphasis supplied.) The record inthiscase does not disclose any motion for a change of venue which would have required the Valley County court to transfer the case toFlathead County. We conclude that the judge inValley County had jurisdiction to hear thismatter, and 

### we refuse to decide whether that court

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

### is moot and 

### willnot 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 

### iswell settled inMontana that 

### a right of survivorship accompanies alljoint tenancy interests inreal property. Hennigh 

### v. Hennigh (1957), 131Mont. 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 

### willhave tobe executed. The Millers arenot tenants incommon, and there existcertain restraints on the free alienationof the property by either. Neither party has complete control over their interest even though they have equal interest. The joint tenancydeed, beyond giving theparties equal interests, has limited their individual rights inthe property. Section 70-1-307, MCA. See FirstWestside 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 DistrictCourt decision inallrespects. We are of the view that the reconciliationcould not affect an agreement thathad already been executed. Further, 

### we can find no serious inequity in the agreement thatwould justify our interference in the mutual agreement of the Millers. The DistrictCourt did not



### err inmaking two separate dispositions. Although 

### we do not favor such a piecemeal distribution, incases of valid separation agreements which do not dispose of allmarital property, 

### we must respect the DistrictCourt'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 fraudwhich would justify disturbing the DistrictCourt judgment. Finally, the Valley County DistrictCourt clearly had jurisdiction, and if venue was improper, the courtwas not required to transfer the casewithout 

### a demand from appellant. No motion was made, and, therefore, the objection 

### isnot reviewable by thisCourt. Affirmed.

### We concur:

7

### Chief Justice 

### L

Justices 

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