No. 83-322 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

IN RE THE MARRIAGE OF 

ANN MARIE LORGE, 

Petitioner and Respondent, 

and 

ROGER WILLIAM LORGE, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable James M. Salansky, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Murray, Kaufman, Vidal & Gordon; Marshall Murray, 

Kalispell, Montana 

For Respondent: 

E. Eugene Atherton, Kalispell, Montana 

-- 

Submitted on Briefs: September 8, 1903 

Decided: January 6, 1984 

Filed: !AC\j ,; .- 1984 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the 

Court. 

Roger William Lorge (the husband) appeals from an order 

of the District Court of Flathead County, requiring him to 

convey certain real property free of all liens to Ann Marie 

Lorge (the wife), awarding attorney fees to the wife, and 

stating that the parties' property settlement agreement would 

be set aside and a hearing held to determine division of the 

marital assets if the husband failed to convey the property 

and pay the attorney fees. We reverse in part the order of 

the district court. 

The wife petitioned for dissolution of the marriage in 

January, 1979. On July 30, 1981, the parties executed a 

property settlement agreement which stated that they had 

separated in 1977. The agreement purported to make a final 

settlement of all claims either party might have against the 

other. 

Paragraph 6 of the agreement sets forth the division of 

marital property. Subparagraph 6 (g) provides that a certain 

tract of jointly-owned real property in Flathead County was 

to be conveyed to the wife within 90 days of the date of the 

agreement free of any liens and encumbrances. There was no 

provision in the agreement regarding enforcement or attorney 

fees. 

The Decree of Dissolution of Marriage was entered the 

following day. The court approved the agreement in the July 

31, 1981 decree: 

"[Tlhe parties having resolved all property and 

custody disputes on the morning of trial and having 

represented to the Court, on the record, the nature 

of such resolution . . . and the Court having duly 

considered the custody and property settlement 

agreement previously filed herewith and finding it 

reasonable, not unconscionable and approving same; I1 . . . 
No further reference is made to the agreement. The court did 

not specifically incorporate the provisions of the agreement 

into the decree. 

A $10,350 mechanic's lien dated August 28, 1979 

encumbered title to the property that was to be conveyed to 

the wife. Summons and complaint for foreclosure of the 

mechanic's lien were served on the husband by the lienholder 

on August 5, 1981. The 90 days within which the husband had 

agreed to convey clear title to the property to the wife 

expired in October, 1981. 

On December 21, 1981, the wife petitioned the court to 

enforce the settlement agreement by compelling the husband to 

convey clear title to the property to her. She also asked 

for reasonable attorney fees and costs incurred in the 

enforcement action. On May 27, 1983, approximately 17 months 

after the date on which the enforcement petition was filed 

and 19 months after the agreed date on which the husband was 

to have conveyed clear title to the property, the court 

issued the following order: 

"It is hereby ordered that Respondent shall, before 

June 1, 1983, convey unto Petitioner herein Tract 

2J in the Northeast Quarter of the Southwest 

Quarter of Section 11, Township 28 North, Range 22 

West, M.P.M., according to his agreement in the 

Marital Property Agreement executed between the 

parties on July 31, 1981 and made a part of the 

original Decree of Dissolution herein on June 31, 

1981. When conveyed, said property shall be free 

and clear of any and all liens whatsoever. 

"It is hereby further ordered, that Respondent 

shall, before June 1, 1983, pay to E. Eugene 

Atherton, P. 0. Box 1796, Kalispell, Montana, the 

sum of $580.00, as and for attorney fees incurred 

by Petitioner in bringing her action to enforce the 

Property Settlement Agreement. 

"If Respondent shall fail to comply with either or 

both of the above orders by June 1, 1983 then, in 

such event, this Court will thereupon promptly 

order the Decree of Dissolution previously rendered 

herein on July 31, 1981 to be set aside as it 

relates to the unconscionability of the Property 

Settlement Agreement that was attached thereto and 

incorporated therein by reference and shall 

thereupon set a further hearing to determine the 
division of the marital assets between the 

parties. " 

From this order, the husband appeals the provisions 

pertaining to attorney fees and conscionability of the 

settlement agreement. The first part of the order, which 

enforces paragraph 6(g) of the agreement, is not challenged 

on appeal. 

Two issues are presented: 

1. Did the District Court err in awarding the wife 

attorney fees incurred in bringing an action to enforce the 

property settlement agreement? 

2. Did the District Court abuse its discretion by 

ordering the property settlement agreement to be set aside if 

husband failed to comply with its order to convey the 

property free and clear of liens? 

The husband argues that because the agreement is a 

private contract, was not incorporated into the decree, and 

contains no provision for enforcement or fees, the court's 

award of attorney fees to the wife is without basis and 

clearly erroneous. 

Paragraph 10 of the settlement agreement provides that 

the "agreement may be submitted to the Court in the 

proceedings for dissolution of marriage . . . for approval, 

and that the same may be incorporated in any decree of 

dissolution given by said Court with the provisions of this 

Agreement made on order in said decree, to be performed by 

the parties." Neither party appealed the decree, which 

specifically approved but did not incorporate the provisions 

of the agreement. 

Section 40-4-201(4), MCA provides: 

"(4) If the court finds that the separation 

agreement is not unconscionable as to disposition 

of property or maintenance and not unsatisfactory 

as to support: 
"(a) unless the separation agreement provides to 

the contrary, its terms shall be set forth in the 

decree of dissolution or legal separation and the 

parties shall be ordered to perform them; or 

"(b) if the separation agreement provides that its 

terms shall not be set forth in the decree, the 

decree shall identify the separation agreement and 

state that the court has found the terms not 

unconscionable." 

Section 40-4-201 (4), MCA permits parties to choose whether 

the terms of their agreement shall be set forth in the 

decree. If this is done, the agreement is enforceable as a 

judgment as well as a contract, and attorney fees are 

statutorily authorized. Sections 40-4-201(5), 40-1-110, MCA; 

Jensen v. Jensen (Mont. 1981), 629 P.2d 765, 769, 38 St.Rep. 

Here the court identified the separation agreement and 

stated that its terms were not unconscionable. The agreement 

did not provide "that its terms shall not be set forth in the 

decree," but the parties did not request that it be 

incorporated into the decree. The court followed the 

procedure prescribed in subsection 40-4-201(4) (b), MCA. It 

identified the agreement and stated that the court found the 

terms to be "reasonable, not unconscionable." It did not set 

forth the terms of the agreement in the dissolution decree. 

At the May 3, 1983 enforcement hearing, the court 

reiterated that the agreement had not been incorporated into 

the 1981 decree: 

"THE COURT: I don't think that was made part of 

the decree . . . It [the separation agreement] is 

not incorporated. It is approved." Transcript at 

17-18. 

On May 19, 1983, the wife petitioned the court for an order 

nunc pro tunc adding the following language to the 1981 

decree: 

"The custody and property settlement agreement 

previously filed herein is adopted by reference and 

made a part of this decree; the parties hereto are 

ordered to comply with its terms and conditions." 
No ruling was made on the record concerning this petition, 

and no order nunc pro tunc issued. 

When the terms of an agreement are not set forth in the 

decree, the agreement retains the status of a private 

contract and the remedies for the enforcement of a judgment 

are not available. Commissioners' Note, Annot. to section 

40-4-201 (4) , MCA. 

Both parties concede that their property settlement 

agreement contains no provision for attorney fees and that 

there is no contract between them that provides for such an 

award. Since the agreement was not raised to the status of a 

judgment by incorporation into the decree, the wife's 

remedies are limited to those available under contract 

theory. Her right to attorney fees must stand or fall upon 

the provisions of the agreement and contract law. 

Section 27-1-311, MCA specifies that the measure of 

damages for the breach of contract is the amount which will 

compensate the aggrieved party for all the detriment that was 

proximately caused or that would ordinarily be likely to 

result from the breach. Section 28-3-704, MCA provides for 

mutuality of obligation for attorney fees. Where one party 

has an express right to recover attorney fees from the other 

party to a contract, both parties are deemed to have the same 

right of recovery. Absent a statute or a contractual 

provision specifically providing for recovery, attorney fees 

are generally not recoverable. Sliters v. Lee (Mont. 1982), 

641 P.2d 475, 476, 39 St.Rep. 453, 455. 

Here, there is neither contract nor statutory 

authorization for the award of attorney fees. We reverse the 

award of $580 for attorney fees incurred by the wife in 

bringing her action to enforce the property settlement 

agreement. 
The husband also appeals from that part of the order 

which states the court would set aside the parties' property 

settlement agreement as unconscionable and set a hearing to 

d-istribute the marital assets by court order if the husband 

failed to comply with the other two provisions of the 

enforcement order. He argues that compelling conveyance and 

payment of attorney fees in this manner constitutes an abuse 

of discretion. 

Section 40-4-201(2), MCA imposes a duty upon the court 

to inquire into the conscionability of the property 

settlement agreement before it is approved: 

"In a proceeding for dissolution of marriage . . ., 

the terms of the separation agreement, . . . are binding upon the court unless it finds . . . -- that the separation agreemen - u~conscionable." 

(emphasis added) 

The district court specifically considered the question of 

conscionability in 1981. It entered a decree stating that 

the court had duly considered the property settlement 

agreement, found it "reasonable, not unconscionable" and 

approved it. No evidence challenging the conscionability of 

the agreement was offered at the wife's enforcement hearing. 

Modification of a property disposition is governed by 

section 40-4-208(3), MCA, which 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." 

As noted by Justice Sheehy, dissenting in part, in 

Hadford v. Hadford (Mont. 1981), 633 P.2d 1181, 1187, 38 

St.Rep. 1308, 1316: 

"The court may relieve a party under section 

40-4-208(3) (b) , MCA from a final judgment or order 

for mistake, inadvertence, surprise, excusable 

neglect, newly discovered evidence, intrinsic and 

extrinsic fraud, misrepresentation, misconduct, and 
'any other reason justifying relief from the 

operation of the judgment. Rule 60(b), 

M.R.Civ.P." 

No facts indicating the existence of any of the 

conditions specified by Justice Sheehy in Hadford were set 

forth in the wife's petition, nor presented at the show cause 

hearing. As was the case in In re the Marriage of Gibson 

(Mont. 1983), 671 P.2d 629, 632, 40 St.Rep. 1780, 1784: 

"The District Court made no findings or conclusions 

indicating that there were conditions that 

justified reopening the 1979 decree. No evidence 

of oppression, fraud or malice was presented at the 

show cause hearing." 

We hold that, absent evidence justifying reopening the 

decree and absent proper findings, the District Court abused 

its discretion by ordering the Lorge settlement agreement set 

aside if the husband failed to comply with the court's 

enforcement order. 

We reverse the provision of the court's order awarding 

attorney fees and setting aside the agreement as 

unconscionable for lack of compliance. We remand the cause 

to the District Court for amendment of its order in 

accordance with this opinion and for such further proceedings 

as may be appropriate in the light of this opinion. 

We concur: 
Justice John C. Sheehy, dissenting: 

I dissent because the majority does not give any direction to the district court or remand on how to afford relief 

to the wife. The majority tells the wife she is stuck with a 

decree that does not incorporate the settlement agreement. 

Without the protection of an incorporated agreement in a 

decree, enforcible as a judgment, there is little the district court can do to aid the wife and prod a husband who is 

flouting the court and the wife on terms he and the wife had 

agreed to as proper. The wife is only further delayed here. 

Larger than the effect of delaying wife's relief (and 

that is serious in itself) is the effect this decision will 

have on other cases. 

Contrary to what is said in the majority opinion, the 

district court did not follow section 40-4-201(4), MCA, when 

it entered the original judgment as far as the property 

settlement agreement is concerned. In subdivision 4 (a) , it 

is required ". . . unless the separation agreement provides 

to the contrary, its terms shall be set forth in the decree . 

. ." Here the district court had a statutory duty to incorporate the terms of the property settlement agreement. When 

the agreement is silent as to incorporation, there is no 

choice given to the court or the parties. The statute - requires incorporation in that event. Such a provision is a 

protection to the parties, especially to a wife. 

The wife ought not to be foreclosed from the protective 

pro~rision of subdivision 4 (a) because the district court 

missed its duty in the first instance. "That which ought to 

have been done is regarded as done, in favor of him to whom 

and against him from whom performance is due." Section 

1-3-220, MCA. Equity regards as done what ought to have been 
done. Shook v. Woodard (1956), 129 Mont. 519, 290 P.2d 750; 

Montana Power Co. v. Federal Power Commission (CA 9, Mont. ) 

(19641, 330 F.2d 781. Dissolution of marriage is an equitable proceedings. 

Because in this case, under the statute, the district 

court should have incorporated the agreeement in the decree, 

I would hold that wife is now entitled to all available means 

of enforcing her rights under the agreement, including contempt proceedings, execution, specific performance, and 

damages for breach. 

For the same reasons, I would hold wife is entitled to 

attorney's fees and costs under section 40-4-110, MCA, which 

is a statutory grant in dissolution cases independent of any 

contractual provisions.