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, 1990Justice 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 theduration of themarriage? Mr. and Mrs. Cannon were married on June 12, 1985. Two years later, inJune 1987, theparties 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 costsof alcoholic treatment forMrs. Cannon. The Court reserved judgment on the disposition of the property. Mr. Cannon testified thathewas living in a condominiumprior to his marriage to Mrs. Cannon. He further stated that the 1986 Honda Prelude and thehome 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 tlhouseholdgoods, furniture and jewelry and china anddishware and flatware and things from previous homes that she'd lived in1'. Mrs. Cannon testified that shebrought $4000 intothemarriage 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 jointbank account,nor did she have an account of her own. The $4000 went into Mr. Cannon's own accountandwas to be used forhousehold 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, WashingtonD.C., and LasVegas, among others. They alsomade trips to Spokane twice a month for shopping. According to Mrs. Cannon's testimony,Mr. Cannon gave her a desk forherwork and gaveher the Honda Prelude for aValentine's Day gift. The carwas inher 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,mattresspad, 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 theperiod 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 theDistrictCourterroneously failed to addressan agreement which theparties had signed. He testified that he took the agreement to Mrs. Cannon and offered her an ultimatum 

### - sign the agreement or themarriage 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 shewasundergoing treatment foralcoholismwhenMr. Cannon induced her to sign the agreement by telling her shewould not have a home to returnto and that themarriage would be over unless she signed. The only item of property which would be covered by this

4agreement, if it is tobe 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 theirmarriage: It is further agreed that wife has no interest in the 1986 Honda sincethe sourceof funds forthepurchase 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 findingsand conclusions. Section 40-4-201, MCA, provides in pertinent part: (2) Inaproceeding fordissolution ofmarriage 

# . . . the terms of the .separationagreement 

# . . . arebinding upon the courtunless it finds, afterconsideringtheeconomic 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 issueof unconscionability. Unfortunately the District Court has not addressed that issue. We therefore remandto the District Court to determine if the so called separation agreement is unconscionablewith regard to thedistribution 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 theHonda Preludewhich is controlledby thepreceding issue. The standard of review on thepart of this Court is set forth inMarriage of Stewart (1988),232 Mont. 40, 42, 757 P.2d 765, 767: A District Courthas far-reaching discretion in dividing themaritalproperty. 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 factorsas set out in 540-4-202,MCA, forthedivision ofproperty. 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 thedistribution of specificmarital assets. Thisholding doesnot

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 thatmaintenance 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 emphasizesthe shortduration of themarriage. Last,heurges that he is unable to pay themaintenance requested. Mrs. Cannon asserts that she was working as a real estate agent when thecouplewas first married,but quitat his insistence

so she would be free to travel with him. She also contends that any paychecks she-receivedwere given to him and deposited in his account. Consequently, shehad acquired no savings with which to

even attempt to supportherself. The District Court found that Mrs. Cannon was a recovering alcoholic, was 50 years old, had no assets nor retirement, was attending college,andwas inneed of maintenance so that she could completeher education and then supportherself fortherestof her life. The court furthernoted that: [ulnderthe 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 Keoghplan, some Public Employees Retirement earnings, and Air Force Retirement [Mr. Cannon] is capable of earning sufficient monies to paymaintenance to [Mrs.Cannon] for aperiod 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 seekingmaintenance: (a) lacks sufficientproperty 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 themarriage; 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 connectionwith theHonda Prelude asdescribedunder Issue

### I. With that exception we affirm the District Court.

We Concur:

# cb Justices