No. 87-83

INTHE SUPREME COURT OF THE STATE OF MONTANA
1987

IN RE THEMARRIAGE OF JULIE J. GERLEMAN, Petitioner andAppellant, and
GARY L. GERLEMAN, Respondent and Respondent.

APPEAL FROM: District Court of the FirstJudicial District, Inand for the County of Lewis & Clark, TheHonorable Henry Loble, Judgepresiding.
COUNSEL OF RECORD:
ForAppellant:
Hull & Sherlock; DavidN. Hull,Helena,Montana
For Respondent:
J. C. Weingartner, Helena,Montana



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## 19

## 1987 Filed: Submitted onBriefs: June 

### 4, 1987 Decided: August 19, 1987

ClerkMr. Justice 

### L. C. Gulbrandson delivered the Opinion of the Court.

Julie Gerleman appeals a Lewis and Clark County DistrictCourt order which denies her motion to set aside the property settlement in this dissolution of marriage case. The issue on appeal iswhether the court erred in denying her motion where she agreed to the property settlement without knowing the value of certain assets of the husband, respondent Gary Gerleman,or that those assets formed part of the marital estate. We affirm. In November 1975, the parties were married in Helena, Montana. In March 1984, followingmarital difficulties, the parties signed a "Custody, Support and Property Settlement Agreement." They apparently reached agreementas to division of theirmarital assets after consulting with counselorsat a Family Teaching Center. The agreement divided the marital assets between the parties. The agreement states that each of the parties warranted that there had been a full disclosure of assets. An attorney prepared the agreementbut neither party received advice from an attorney. In April 1984, the District Court issued its order dissolving the marriage and incorporated the agreement as part of the decree. Section 40-4-201, MCA, provides for the type of agreement the parties executed. That statute provides in part: (1) To promote amicable settlement of disputes between parties to a marriage attendant upon their separation for 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, andsupport,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, after 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.

InNovember 1986,the wifemoved to set aside the child support and property settlement provisions of the divorce decree. She alleged the husband had committed fraud and/or misrepresentation at the time the agreement was executed. She complained that she was not informed of the husband's retirement program, his stock shares in the companyheworked for,or his actual income. Theparties have stipulated that, at the time of the dissolution, the District Court was not
aware of the husband's actual income, retirement program or stock shares. In December 1986, the District Court ruled against the wife, declined to change the property settlement and held that Gary had not committed fraud or misrepresented his assetsor income. This appeal followed. Theprovisions of a property settlementmay be modified under 

### 5 40-4-208,MCA. This Court recently stated: "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 theoperation of the judgment.

### ' Rule 60(b)

## , M.R.Civ.P. " (Citation omitted.)
In Re Marriage of Lorge (Mont. 1984), 675 P.2d 115, 118, 41 St.Rep. 50, 55. The wife asserted that she had been misled as to the husband's income, his retirement program and fund with his employer and his shares of stock in his employer company. The District Court addressed the allegations of fraud and misrepresentation and stated: [Wlhen Julie's motion was heard on December 18, 1986, she testified that she knew that Gary was making $36,000 per year at the time and which she concedes was his actual income. She testified 

### - that the parties used his base rate of $26,000 per year for the purpose of negotiating the agreement,which did not include the amount he had made for overtime work. However, she testified several times that she knew what his actual income was.

# .. . [W] hen she took the stand, Julie testified that when the agreementwas negotiated, she knewhe had a retirement program and a retirement fundwith his company, American Telephone and Telegraph Company and that she knew that he had shares of stock in that company.

# . .. Julie also had retirement benefits fromher jobwhich she received. Gary took his and she took hers.

(Emphasisin original.)
The court concluded that there was no fraud or misrepresentation and that the agreement was not unconscionable. The wife does not challenge the court's findings of fact. Given those findings (thatthe wife knewof the assets and the income)

## , we affirm the court's denial of the wife's motion.The wife's principal complaint is that the lower court approved the property settlement agreement (as it was required to do under 5 40-4-201, MCA, upon finding that the agreement was not unconscionable) without knowing of the existence of the disputed items, which were properly part of the marital estate. Appellant overlooks the fact that in December 1986, when the court was aware of the disputed items, the court still found that there was nothing on the face of the agreement which makes it appear to he unconscionable. Moreover, substantial evidence supports the finding that there was no fraud nor misrepresentation. We defer to the District Court's rulins. Affirmed.

We Concur: HJ 

# d4<LA- / Chief Justice

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Justices