NO. 89-553 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

IN RE THE MARRIAGE OF 

ROSS W. CANNON, 

petitioner and Appellant, 

and 

SHARON CANNON, 

Respondent and Respondent. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Joseph B. Gary, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

David H. Hull, Helena, Montana 

For Respondent: 

Charles Graveley, Helena, Montana 

Submitted on Briefs: February 22, 1990 

Filed: 

Decided: April 10, 1990 
Justice Fred J. Weber delivered the opinion of the Court. 

After a hearing, the District Court for the First Judicial 

District, Lewis and Clark County, divided the marital property 

between the parties and awarded maintenance to Mrs. Cannon. The 

husband appeals. We remand to the District Court for a 

redetermination on the distribution of the Honda Prelude. with 

that exception we affirm the District Court. 

The issues for our consideration are: 

1. Did the District Court erroneously fail to address the 

separation agreement entered into and signed by the parties? 

2. Did the District Court err in the distribution of 

specific marital assets? 

3. Did the District Court err in awarding maintenance, 

considering the facts of the case and the duration of the marriage? 

Mr. and Mrs. Cannon were married on June 12, 1985. Two years 

later, in June 1987, the parties separated. There were no children 

born of the marriage. The ~istrict Court declared the marriage 

dissolved on December 17, 1987, due to irreconcilable differences 

arising from the costs of alcoholic treatment for Mrs. Cannon. The 

Court reserved judgment on the disposition of the property. 

Mr. Cannon testified that he was living in a condominium prior 

to his marriage to Mrs. Cannon. He further stated that the 1986 

Honda Prelude and the home located at 1075 Woodbridge ("Woodbridge 

home1') were acquired during the marriage from savings he had 

acquired before the marriage. He testified that Mrs. Cannon 

brought tlhousehold goods, furniture and jewelry and china and 
dishware and flatware and things from previous homes that she'd 

lived in1'. 

Mrs. Cannon testified that she brought $4000 into the marriage 

and sold her complete bedroom set, a washer and dryer, and 

everything that they would not need in their home together. She 

testified that they did not have a joint bank account, nor did she 

have an account of her own. The $4000 went into Mr. Cannon's own 

account and was to be used for household expenses. When the couple 

first lived together, Mrs. Cannon did not work. However, after 

they were married, she worked as a real estate salesperson. She 

testified that Mr. Cannon told her to give her paychecks to him 

and it probably was used for household expenses. She testified 

that Mr. Cannon eventually encouraged her to quit working so that 

they could more easily spend time traveling together. She 

testified that they traveled several times to London, California, 

Washington D. C., and Las Vegas, among others. They also made trips 

to Spokane twice a month for shopping. According to Mrs. Cannon's 

testimony, Mr. Cannon gave her a desk for her work and gave her the 

Honda Prelude for a Valentine's Day gift. The car was in her name. 

Mrs. Cannon was attending paralegal school in Great Falls at the 

time of the divorce. 

On February 1, 1989, the District Court filed it's findings 

of facts and conclusions of law with respect to the property 

distribution. It ordered that Mrs. Cannon receive the washer, 

dryer and refrigerator from the Duplex; all her personal property 

at his residence; the 1986 Honda Prelude; the bedspread, mattress 
pad, sham pillows and blankets from the master bedroom of the 

Duplex; and the desk. It further ordered that Mr. Cannon pay her 

maintenance in the amount of $350 per month for the period of four 

years so that she may complete her college education. The 

maintenance stops if Mrs. Cannon quits college or remarries. Mr. 

Cannon was awarded the Duplex, the Woodbridge home, and all items 

of personal property not specifically awarded to Mrs. Cannon. He 

was further ordered to pay the debts secured by the duplex, the 

Woodbridge home and the Honda Prelude. The parties were ordered 

to share the costs of her alcohol treatment. Mr. Cannon appeals. 

We affirm in part and remand in part. 

I 

Did the District Court erroneously fail to address the 

separation agreement entered into and signed by the parties? 

Mr. Cannon contends that the District Court erroneously failed 

to address an agreement which the parties had signed. He testified 

that he took the agreement to Mrs. Cannon and offered her an 

ultimatum - sign the agreement or the marriage would not continue. 

He also testified he was uncertain whether she had consulted with 

her attorney before signing. 

Mrs. Cannon maintains that the agreement was unenforceable 

because it was entered into under undue influence. She contends 

she was undergoing treatment for alcoholism when Mr. Cannon induced 

her to sign the agreement by telling her she would not have a home 

to return to and that the marriage would be over unless she signed. 

The only item of property which would be covered by this 

4 
agreement, if it is to be classed as a separation agreement, is the 

Honda Prelude. This issue is limited to the distribution of the 

Honda Prelude. 

The agreement signed by both parties in pertinent part 

provided: 

In the event the parties dissolve their marriage: 

It is further agreed that wife has no interest in 

the 1986 Honda since the source of funds for the purchase 

of the same - has come solely from husband1 s business, 

which is his sole and separate property. . . . 

In the event the parties dissolve their marriage: 

Wife hereby waives, releases, foregoes, and 

disclaims all her rights in any and all property, real, 

personal, or mixed, wheresoever situated, of which 

husband is or may become seized or possessed. . . 

The effect of the foregoing provisions is that Mrs. Cannon agreed 

she had no interest in the Honda Prelude, and further agreed that 

if the marriage were dissolved, she released and disclaimed any 

right in such automobile. The District Court failed to refer to 

the agreement in its findings and conclusions. 

Section 40-4-201, MCA, provides in pertinent part: 

(2) In a proceeding for dissolution of marriage . . . the 

terms of the .separation agreement . . . 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 . . . that the 

separation agreement is unconscionable. 

(3) If the court finds the separation agreement 

unconscionable, it may request the parties to submit a 

revised separation agreement or may make orders for the 

disposition of property. . . . 

The record contains substantial evidence which the District Court 

may consider on the issue of unconscionability. Unfortunately the 

District Court has not addressed that issue. We therefore remand 
to the District Court to determine if the so called separation 

agreement is unconscionable with regard to the distribution of the 

Honda Prelude. Following that determination, the District Court 

shall make such distribution of the Honda Prelude as it finds to 

be appropriate. 

Did the District Court err in the distribution of specific 

marital assets? 

This issue shall apply to all distributed property with the 

exception of the Honda Prelude which is controlled by the preceding 

issue. 

The standard of review on the part of this Court is set forth 

in Marriage of Stewart (1988), 232 Mont. 40, 42, 757 P. 2d 765, 767: 

A District Court has far-reaching discretion in dividing 

the marital property. Our standard of review is that the 

District Court's judgment, when based upon substantial 

credible evidence, will not be altered unless a clear 

abuse of discretion is shown. 

We have reviewed the record and conclude that the District Court 

did not SO abuse its discretion. The District Court made clear 

and complete findings of fact, after considering all the relevant 

factors as set out in 540-4-202, MCA, for the division of property. 

It found that both parties made llunreasonablell requests for the 

property division in light of the short duration of the marriage 

and the few assets acquired, and divided the property in an 

equitable manner. We hold that the District Court did not err in 

the distribution of specific marital assets. This holding does not 

cover the Honda Prelude referred to under Issue I. 
Did the District Court err in awarding maintenance, 

considering the facts of the case and the duration of the 

marriage? 

Mr. Cannon maintains that maintenance should be awarded only 

in very limited circumstances and that it was improper to award 

maintenance in this case. He contends that Mrs. Cannon failed to 

show her lack of ability to support herself; that she does not 

need, at age 50, to go back to college to earn a degree; and he 

emphasizes the short duration of the marriage. Last, he urges that 

he is unable to pay the maintenance requested. 

Mrs. Cannon asserts that she was working as a real estate 

agent when the couple was first married, but quit at his insistence 

so she would be free to travel with him. She also contends that 

any paychecks she-received were given to him and deposited in his 

account. Consequently, she had acquired no savings with which to 

even attempt to support herself. 

The District Court found that Mrs. Cannon was a recovering 

alcoholic, was 50 years old, had no assets nor retirement, was 

attending college, and was in need of maintenance so that she could 

complete her education and then support herself for the rest of her 

life. The court further noted that: 

[ulnder the circumstances . . . with the ability of [Mr. 

Cannon] to earn money as an attorney and (sic) has the 

ownership of assets such as the duplex that can return 

money and increase equity, has a Keogh plan, some Public 

Employees Retirement earnings, and Air Force Retirement 

[Mr. Cannon] is capable of earning sufficient monies to 

pay maintenance to [Mrs. Cannon] for a period of four (4) 
years so that she can obtain an education so as to 

support herself for the rest of her life. 

Section 40-4-203, MCA, allows the court to award maintenance: 

only if it finds that the spouse seeking maintenance: 

(a) lacks sufficient property to provide for his 

reasonable needs; and 

(b) is unable to support himself through appropriate employment. . . 

It further requires the court to consider the financial resources 

of the party seeking maintenance; the time necessary to acquire 

sufficient education or training to enable the party seeking 

maintenance to find appropriate employment; the standard of living 

established during the marriage; the duration of the marriage; the 

age and health of the party seeking maintenance; and the ability 

of the spouse from whom maintenance is sought to meet his needs 

while meeting those of the spouse seeking maintenance. Again, the 

record is clear that the District Court carefully considered all 

of these factors. We hold that the District Court did not err in 

awarding maintenance. 

We remand to the District Court for its determination in 

connection with the Honda Prelude as described under Issue I. With 

that exception we affirm the District Court. 

We Concur: 
cb Justices