No. 91-561 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

IN RE THE MARRIAGE OF 

PHILLIP A. HAMILTON, 

Petitioner and Respondent, 

and 

DEBRA M. DANELSON, f/k/a 

DEBRA M. HAMILTON, 

Respondent and Appellant, 

and 

Intervenors and Cross-Appellants., 8. 

and CLERK OF 

CAROL A. MITCHELL, SFATE 

Intervenor. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Douglas Harkin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Richard A. Volinkaty, Attorney at Law, Missoula, 

Montana 

For Respondent: 

Judith A. Loring, Attorney at Law, Stevensville, 

Montana 

For Intervenors and Cross-Appellants: 

~ichard A. Reep, Reep, Spoon & Gordon, P.C., 

Missoula, Montana 

For Intervenor: 

Timothy ~eiszler, Geiszler & Newcomer, Missoula, 

Montana 

submitted on Briefs: ~pril 23, 1992 

Filed: 
Justice John Conway Harrison delivered the Opinion the Court. 

Phillip A. Hamilton (Phillip) commenced dissolution of his 

marriage to Debra M. ane el son-~amilton (Debra) in the Fourth 

Judicial District, Missoula County, Montana. The District Court 

entered the Final Decree of iss solution on November 17, 1989 which 

incorporated by reference a marital and property settlement 

agreement. Debra later moved to modify, reopen, or revoke the 

property settlement and division, child custody, support and 

visitation provisions of the decree. The District Court denied the 

motion and Debra appeals. We affirm. 

The dispositive issues on appeal are as follows: 

1. id the District Court err when it denied Debra's motion 

to modify, reopen or revoke the property settlement and division. 

2. Did the District Court err when it denied Debrats motion 

to modify child support, custody and visitation provisions of the 

dissolution decree. 

The parties were married in Missoula, Montana, on July 30, 

1983. Prior to the marriage Debra obtained a college degree and 

was employed as a television announcer. She was not employed 

outside the home during the early years of the marriage but began 

a day-care in her home during the later stages of the marriage. 

Phillip worked as a musician, part-time bookkeeper and sometimes 

operated a recording studio business. The parties had one child, 

a son, Coleman. 

The parties came to live in a lifestyle that they, by their 

own means, could not support. Accordingly, throughout the marriage 
both parties borrowed money and received numerous gifts from their 

respective families. The couple separated in approximately October 

of 1988 and Phillip petitioned for dissolution on December 8, 1988. 

On November 6, 1989, Phillip and Debra entered into a marital 

and property settlement agreement with an effective date of 

September 18, 1989. On November 17, 1989, the District Court 

entered a Final Decree of Dissolution which incorporated by 

reference the marital and property settlement agreement of the 

parties. The agreement addressed division of property, debt 

allocation, maintenance, child custody, child support and other 

related issues such as a trust fund for Coleman and tax exemption 

issues. 

On September 17, 1990, Debra filed a motion IfTO RE-OPEN, 

MODIFY, OR REVOKE THE PROPERTY SETTLEMENT AND DIVISION, CHILD 

CUSTODY AND SUPPORT, AND FOR TEMPORARY MAINTENANCE AND ATTORNEY'S 

FEES." The District Court denied Debra's motion on May 15, 1991. 

Debra now appeals on the grounds that the property division was 

unconscionable. 

It should be noted that in addition to the above events, 

Leonard and Bonnie Hamilton, Phillip's parents, became parties to 

this action when they intervened for grandparent visitation by 

petition on July 12, 1989. Also, after the completion of the 

partiesf dissolution, Debra's initial attorney, Carol A. Mitchell, 

filed a notice of attorney's lien on May 17, 1990, to secure 

payment of unpaid attorney's fees. 

The record discloses that this dissolution was particularly 
fraught with animosity and spite. The parties were uncooperative 

and aggravating to one another throughout the entire proceeding. 

It is against this unfortunate backdrop that we address the 

dispositive issues, 

I. Modification, Revocation or Reopening of the Marital and 

Property Settlement Agreement. 

Debra asserts that it is necessary and proper to modify, 

revoke, ox reopen the property settlement agreement (the agreement) 

which was incorporated by reference in the dissolution decree. She 

claims that since the signing of the agreement, several events have 

substantially altered the valuation of the marital estate. We 

note, however, that each of her contentions involve a change in her 

own or ~hillipls financial status which took place after the 

dissolution. For example, although the parties borrowed from both 

sets of parents, a great deal of money was owed to Phillip's 

parents, This debt figure was utilized in calculating the 

agreement. Debra alleges that Phillip's parents waited until the 

agreement was signed and then forgave approximately $100,000 of 

debt. She also indicates that after the dissolution, Phillip's 

parents made other gifts to him in the form of stock interests. 

Debra argues that this information was concealed from her during 

settlement negotiations. 

Next, Debra asserts that after the agreement was signed, she 

learned that her father was diagnosed with cancer and that he also 

was going through a divorce. She states that she signed the 

agreement relying on the fact that her father would be in a 

4 
position to help her financially. 

Finally, she asserts that the May 17, 1990, action by her 

former attorney Carol Mitchell has severely hampered her financial 

condition. Ms. Mitchell intervened in the case at bar to protect 

her interest in Debra's unpaid legal fees. 

Debra claims that since none of these factors were known to 

her at the time she signed the agreement, she should now be able to 

revoke, modify or reopen the agreement. We disagree. 

Section 40-4-208, MCA, states the basis for modification and 

termination of provisions for maintenance, support, and property 

disposition. The relevant portion regarding property disposition 

is as follows: 

(3) 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. 

Section 40-4-208 (3), MCA. 

Phillip has not consented in writing to modification of the 

property disposition and after reviewing the record, we do not find 

conditions that justify reopening the judgment. In fact, the 

record indicates that both Debra and Phillip stipulated to the 

agreement which provided for property settlement and distribution. 

Both were represented by counsel who assisted them during a lengthy 

negotiation period. Further, the record indicates that the parties 

freely, and with full understanding, signed the agreement. The 

parties agreed to limit modification of the settlement and property 

5 
division as indicated by the following language in the agreement: 

j. Modification. No modification or waiver of the 

terms of this Agreement shall be valid unless in writing 

and signed by both parties. 

 his modification limitation is authorized by § 40-4-201(6), 

MCA. The District Court did not find the terms of the agreement 

unconscionable and neither do we. 

On appeal, our standard of review in the division of marital 

property was recently clarified by this Court in In re Marriage of 

Danelson (Mont. 19921, No. 91-255, decided July 9, 1992. In 

Danelson, we stated: 

This Court has recently clarified that our standard of 

review in regard to the factual findings of the district 

court relating to the division of marital property is 

whether the district court's findings are clearly 

erroneous. In re Marriage of Sacry (Mont. 1992), 49 St. 

Rep. 452. Concerning this Court's review of conclusions 

of law made by a lower court we have stated that "[w]e 

are not bound by the lower court's conclusions and remain 

free to reach our own.If Schaub v. Vita Rich Dairy 

(l989), 236 Mont. 389, 391, 770 P.2d 522, 523. The basis 

for simply determining if the lower court's conclusions 

are correct is that there is no discretion in determining 

a question of law. The lower court either correctly or 

incorrectly applies the law. Steer, Inc. v. Department 

of Revenue (1990), 245 Mont. 470, 803 P.2d 601. 

In adopting these standards of review in division of 

marital property cases, this Court is not in any way 

discounting the considerable discretionary power that 

must be exercised by district courts in these cases. The 

courts are obligated to fashion a distribution which is 

equitable to each party under the circumstances. In re 

Marriage of Jones (1987), 229 Mont. 128 745 P.2d 350; 

§ 40-4-202, MCA. The courts, working in equity, must 

seek a fair distribution of the marital property using 

reasonable judgment and relying on common sense. 

Obtaining this equitable distribution will at times 

require the lower court to engage in discretionary action 

which cannot be accurately categorized as either a 

finding of fact or a conclusion of law. These 

discretionary judgments made by the trial court are 

presumed to be correct and will not be disturbed by this 
Court absent an abuse of discretion by the lower court. 

Meridian Minerals v. Nicor Minerals, Inc. (1987), 228 

Mont. 274, 742 P.2d 456. 

Danelson, slip op. at 8-9. 

Debra also alleges that in order to disadvantage her, Phillip 

committed fraud. She claims that the information about future debt 

forgiveness and stock gifts was concealed from her prior to the 

dissolution. The result of Phillip's alleged fraud was Debra's 

receipt of a reduced award under the agreement. 

Debra relies on In re Marriage of Madden (1984), 211 Mont. 

237, 683 P.2d 493, as an example of fraud due to one party's 

failure to disclose financial information. In Madden, the husband 

and the attorney failed to disclose a balloon payment on the house 

awarded to the wife, and therefore the property agreement was set 

aside. 

The case at bar is clearly distinguishable from Madden in many 

respects. Most importantly, both parties were represented by one 

attorney in Madden, and neither the husband nor the attorney 

informed the court about the balloon payment. In the case at bar, 

both parties hired independent counsel and there is no proof that 

relevant financial information was concealed from Debra when 

executing the settlement agreement. 

After a review of the record, we find no evidence that Phillip 

concealed information from Debra or committed a fraud upon the 

court in any way as to his representations of assets or net worth 

as they relate to the marital and property settlement. 

It is true that Phillip's financial status was and is 
predictably better than Debra's since his parents possess 

considerable wealth and as their son he may benefit from their 

wealth. Even so, the gifts from Phillip's parents after 

dissolution do not automatically become part of the marital estate 

and grounds to reopen the agreement. What Debra suggests is that 

simply because Phillip is the recipient of a gift, she should be 

entitled to a portion of it. This we will not do. 

Debra cites In re Marriage of Dalley (1988), 232 Mont. 235, 

756 P.2d 1131, as a basis for claiming that a court can commit 

error by failing to consider inheritance in the marital estate. 

Such an interpretation of Dallev is selective and incomplete. In 

Dalley, we excluded the wife's expected inheritance from the 

marital estate. 

However, property gifted during the marriage may be 

excluded from the marital estate where an objecting 

spouse can claim no contribution to the property's value. 

[Citation omitted. 1 It follows . . . that an expectation 

of property where an objecting spouse can claim no 

contribution may be properly excluded from the marital 

estate. 

Dallev, 232 Mont. at 242, 756 P.2d at 1135 (emphasis in original). 

With regard to inheritance we previously held that property 

given to one spouse during marriage may be excluded from the 

property division calculations unless the non-acquiring spouse can 

demonstrate that he or she actually contributed to any related 

increase in the value of the property. In re Marriage of Eklund 

(1989), 236 Mont. 77, 80, 768 P.2d 340, 342. Under such 

circumstances, if a non-acquiring spouse is not entitled to a 

portion of the gift during the marriage, we cannot imagine the non- 
acquiring spouse obtaining a portion of a gift made after the 

dissolution of the marriage as in the case at bar. 

With regard to the ill health of Debra's father and the 

resulting financial hardship she faces because of her reliance on 

his promised financial assistance, we fail to see how Phillip can 

be held responsible in any way. Similarly, the pending action by 

Debra's former attorney for unpaid legal fees cannot be assigned to 

Phillip. In short, Debra has failed to show that the property 

division was unconscionable. 

Debra also claims that she is entitled to relief from judgment 

under Rule 60(b) M.R.Civ.P. She contends that she qualifies for 

relief alternatively under subsection (6) of Rule 60(b) or under 

the final portion of the rule that gives the court authority to 

grant relief for fraud upon the court. We are not persuaded by her 

arguments. Montana's Rule 60(b) is nearly identical to the 

equivalent Federal rule and we previously have said that there must 

be a delicate balance between the sanctity of final judgments and 

the court's conscience that justice be done in light of the 

individual circumstances and facts. Koch v. Billings School Dist. 

No. 2 (Mont. 1992), - P.2d -, -, 49 St.Rep. 517, 518. 

Under Rule 60(b)(6), M.R.Civ.P., there must be "extraordinary 

circumstances" to justify reopening of the judgment. In m, the 

plaintiff's injury claims were initially dismissed by the district 

court based on governmental immunity. The unique circumstances and 

bizarre timing of caselaw amounted to extraordinary circumstances. 

The case at bar is not analogous to m. While the events that 
eroded Debra's financial condition are unfortunate, they do not 

amount to the extraordinary standard necessary to grant relief from 

judgment under Rule 60 (b) (6) , M. R. Civ. P. 

Not only do Debra's claims fail under subsection (6) of Rule 

60(b), M.R.Civ.P., but, the claims do not amount to a fraud upon 

the court. Finding no basis under Rule 6O(b) M.R.Civ.P., to grant 

Debra relief from judgment, we decline to do so. 

11. Motion to Modify Child Support, Custody and Visitation. 

Debra contends that the District Court erred when it denied 

her motion to modify child support, custody and visitation. The 

statutory authority for modification of child support is 3 40-4- 

208 (2) (b) (i) , MCA, which states that a modification can only be 

made Wpon a showing of changed circumstances so substantial and 

continuing as to make the terms unconscionable.'* 

Debra again contends that the debt forgiveness, stock gifts, 

her father's cancer and divorce, her former attorney's action 

against her for unpaid attorney's fees, as well as the other events 

impinging upon her financial condition, amount to "changed 

circumstancesM under the statute. We disagree. The ~istrict 

Court did not find any of the circumstances asserted by Debra to be 

substantial and continuing so as to make the terms unconscionable 

and warrant modification of child support. We hold there was 

substantial evidence supporting the District Court. 

Finally, Debra fails to make any arguments in her brief 

regarding the modification of prior custody which is controlled by 
5 40-4-219, MCA, nor does she address the issue of visitation 

modification under 5 40-4-217, MCA. She merely references these 

topics in her statement of the issues and briefly mentions them in 

a constitutional argument which we find moot in light of our 

holding here. Accordingly, we will not address them either. 

After a review of the record, we find that the District 

Court's division of the marital estate was not clearly erroneous. 

Therefore, the rulings by made by the District Court will remain 

undisturbed. Affirmed. 

We concur: I