No. 87-83 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

IN RE THE MARRIAGE OF 

JULIE J. GERLEMAN, 

Petitioner and Appellant, 

and 

GARY L. GERLEMAN, 

Respondent and Respondent. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Henry Loble, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hull & Sherlock; David N. Hull, Helena, Montana 

For Respondent: 

J. C. Weingartner, Helena, Montana 

AUG 1 9 1987 

Filed: 

Submitted on Briefs: June 4, 1987 

Decided: August 19, 1987 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

Julie Gerleman appeals a Lewis and Clark County 

District Court order which denies her motion to set aside the 

property settlement in this dissolution of marriage case. 

The issue on appeal is whether 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, following marital difficulties, the 

parties signed a "Custody, Support and Property Settlement 

Agreement." They apparently reached agreement as to division 

of their marital assets after consulting with counselors at 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 agreement but 

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, 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, 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. 

In November 1986, the wife moved 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 company he worked 

for, or his actual income. The parties 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 

assets or income. This appeal followed. 

The provisions of a property settlement may 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 the 
operation 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 

agreement was negotiated, she knew he had 

a retirement program and a retirement 

fund with 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 from her job which she received. 

Gary took his and she took hers. 

(Emphasis in 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 (that the wife knew of 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