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 DEBRAM. DANELSON, f/k/a DEBRAM. HAMILTON, Respondent and Appellant, and

Intervenors and Cross-Appellants., 

# 8. and CLERKOF 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: ~ichardA. 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, 1989which 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 thedecree. 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 tomodify, reopen or revoke theproperty settlement and 

### division. 2. Did the District Court err when it denied Debratsmotion 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, couldnot support. Accordingly, throughout themarriageboth parties borrowed money and 

### receivednumerous gifts from their respective families. The couple separated inapproximately October of 1988 and Phillippetitioned fordissolution

### onDecember 8,1988. OnNovember 6, 1989, Phillip and Debra entered into

### amarital 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 IfTORE-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 partiesfdissolution,Debra's initial attorney, CarolA. 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 particularlyfraught 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 SettlementAgreement. Debra asserts that it is necessary and proper to modify, revoke,oxreopentheproperty settlement agreement (theagreement) which was incorporatedby reference inthedissolutiondecree. She claims that sincethe signingof the agreement, several events have substantially altered the valuation of the marital estate. We note,however, that each of her contentions involvea change in

### her

own or ~hilliplsfinancial status which took place after the dissolution. For example,although the parties borrowed fromboth 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 fatherwas 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 4position to help her financially. Finally, she asserts that the May 17, 1990, action by her former attorney Carol Mitchell has severelyhamperedher 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 regardingproperty 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 propertydispositionandafter reviewingtherecord,we donot find conditions that justify reopening the judgment. In fact, the record indicates that both Debra and Phillip stipulated to the agreementwhich provided forproperty settlement and distribution. Bothwere representedby counselwho assisted them during a lengthy negotiationperiod. Further, therecord indicatesthat theparties freely, and with full understanding, signed the agreement. The parties agreedto limitmodificationof the settlementandproperty 5division as indicated by the following language in the agreement: j. Modification. Nomodification or waiver of the terms of thisAgreement 

### shall be valid unless inwriting and signedby 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 clarifiedby this Court in In reMarriage 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 arenotbound by the lowercourt's conclusions and remain free to reach our own.If Schaub v. Vita Rich Dairy (l989), 236Mont. 389, 391, 770 P.2d 522, 523. Thebasis for simply determining if the lower court's conclusions are correct is that there isnodiscretion indetermining 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. Inadopting these standardsof review in divisionof marital property cases, this Court is 

### not in any way discounting the considerable discretionary power that mustbe exercisedby 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 requirethe lower court to engage indiscretionaryaction 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 andwill not be disturbed by thisCourt 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 inorder to disadvantageher, 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. InMadden, thehusband and the attorney failed to disclose a balloon payment on the house awarded to the wife, and therefore the property agreement was set aside. Thecaseat bar is clearly distinguishable fromMadden inmany 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 therecord,we findno evidencethat 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 ispredictably 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 dissolutiondo not automaticallybecome part of themarital 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. Thiswe 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 spousecanclaim no contributiontotheproperty's value. [Citation omitted.1 It follows

# . . .that anexpectation 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 thegift during themarriage,we cannot imaginethenon-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 facesbecause of her reliance on his promised financial assistance,we fail to seehow Phillip can be held responsible in any way. Similarly, the pending action by Debra's formerattorney for unpaid legal fees cannotbe assigned to Phillip. In short, Debra has failed to show that the property divisionwas 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 fraudupon the court. We are not persuadedby her arguments. Montana's Rule 60(b) is nearly identical to the equivalent Federal rule andwepreviouslyhave said that theremust 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. Kochv. Billings School Dist. No. 2 (Mont. 1992), 

## -P.2d 

### -, -, 49 St.Rep. 517, 518. Under Rule 60(b)(6), M.R.Civ.P., theremust be "extraordinary circumstances"to justify reopening of the judgment. In

# m,the plaintiff's injury claimswere initiallydismissedby the district courtbased on governmental immunity. Theunique circumstancesand bizarre timing of caselawamounted to extraordinary circumstances. The case 

### at bar is not analogous 

### to

# m. While the events thateroded Debra's financial condition are unfortunate, they do not amount to theextraordinary standardnecessary togrant 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 againsther for unpaid attorney's fees,

### aswell as the other events impinging upon her financial condition, amount to "changed circumstancesM under the statute. We disagree. The ~istrict Court did not findany of the circumstances assertedby Debra tobe 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 themodification ofprior custody which is controlledby5 40-4-219, MCA, nor does she address the issue of visitation modification under 5 40-4-217, MCA. She merely references these topics inher statement

### of the issues and brieflymentions 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