NO. 91-335 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

IN RE THE MARRIAGE OF 

MARY B. LASKEY, 

Petitioner and Respondent, 

and 

FREDERICK H. LASKEY, 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Joel G. Roth, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Michael S. Smartt, Great Falls, Montana 

For Respondent: 

Joan E. Cook; Miller & Cook, Great Falls, Montana 

Filed: 

Submitted on Briefs: January 23, 1992 

. .- Decided: April 10, 1992 ~. . 

. - 
Justice R. C. McDonough delivered the Opinion of the Court. 

Frederick K. Laskey appeals from an order of the ~ighth 

Judicial District Court, Cascade County, modifying the decree of 

dissolution. We reverse. 

The sole issue on appeal is whether the District Court erred 

in modifying the decree of dissolution as to the family home and 

as to the husband's military pension. 

Frederick H. Laskey and Mary B. Laskey were married September 

22, 1971. The parties have four children, three of which are 

minors. The parties separated in March of 1985 and entered into a 

written separation agreement dated June 21, 1985. The husband's 

military pension was not specifically mentioned in the agreement. 

The pertinent part of the separation agreement reads as 

follows : 

Section Three 

Property Division 

The parties have heretofore divided the properties, 

both real and personal, which they owned either together 

or separately, as follows: . , . 3. House at 3716 2nd Avenue South, Great Falls, 

Montana, is to remain in joint tenancy but that wife is 

to be given a power of attorney so that she has the 

option to sell the house with the proceeds to be divided 

equally; . . . 

Section Four 

Release of Property and Estate Rights 

Each party hereby waives, relinquishes, and releases 

all right and claim in or to the property of the other, 

including all rights of dower and curtesy . . . 

Section Eight 

Independent Representation by Counsel 

In connection with her status, rights, privileges, 

duties, and obligations, and the preparation of this 
agreement, the wife has been independently represented by 

and has had the benefit of the counsel and advise of 

Scott M. Radford, a member of the Bar of the State of 

Montana and State of California. The husband has not 

sought counsel and has done this knowingly and 

voluntarily. 

Section Nine 

Modification 

This agreement is to be modified only by written 

agreement signed by both parties. 

The separation agreement was incorporated into the decree of legal 

separation on August 15, 1985. The Honorable Judge Bradford, in 

this decree, found the parties made a reasonable division of their 

property. Section 40-4-201, MCA (1985), governs separation 

agreements. It provides in part: 

(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 1989, the husband filed a petition for dissolution. Notice 

of entry of decree was entered and served on July 11, 1990. The 

District Court, in its findings of fact, found that husband's 

military pension was not specifically included in the separation 

agreement but that it was included within the general terminology 

of the separation agreement. 

Wife subsequently filed a motion for reconsideration. On 

reconsideration, the District Court found that the absence of any 

mention of the military pension was intentional and did not 

constitute a waiver or relinquishment of the pension by the wife. 
The District Court based this finding on the fact that wife's 

attorney advised her that she had a vested interest in the pension 

and that mention of the military pension was not required. 

The District Court awarded the wife 50 percent of the military 

pension accrued during the marriage. In regards to the family home 

the court ruled that the trial date would be the date to determine 

the equity of the family home. The court divided the equity in the 

house equally between the parties at the time of sale. The wife 

was to pay the husband his share at the time of sale, and the 

property was to be sold no later than six months following the date 

the youngest child of the marriage reaches majority. 

Our standard of review is whether or not the District Court 

abused its discretion in applying Rule 60 (b) (6) , M.R. Civ. P., to the 

motion for reconsideration. Marriage of Lorge (1984), 207 Mont. 

The District Court, in relieving wife of its prior judgment, 

relied on Rule 60 (b) (6) , M.R. Civ. P. Rule 60 (b) (6) provides: 

On motion and upon such terms as are just, the court 

may relieve a party or a party's legal representative 

from a final judgment, order, or proceeding for the 

following reasons: . . . (6) any other reason justifying relief from the 

operation of the judgment. 

Section 40-4-208(3), MCA (1991), governs modification of property 

dispositions; it provides: 

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. 
Under g 40-4-201(3), MCA, which governs separation agreements, the 

standard that would justify reopening the judgment is 

unconscionability. 

Wife is not arguing that the separation agreement is 

unconscionable. She asserts that since the military pension was 

not mentioned in the agreement, her entitlement to it has yet to be 

decided. Recently, we reviewed a similar case involving a 

separation agreement which did not specifically mention the 

military pension. Patzer v. Patzer, 234 Mont. 34, 792 P.2d 1101. 

Mrs. Patzer did not claim the agreement was unconscionable. Patzer 

at 38, 792 P.2d at 1103. She also argued that the district court 

did not consider the military pension because it was not mentioned 

in the separation agreement. Patzer at 36-37, 792 P.2d at 1102. 

We said that a separation agreement did not have to mention every 

single item of property the parties hold at the time of their 

dissolution. Patzer at 38, 792 P.2d at 1103. 

The military pension was part of the marital estate when the 

separation agreement was drafted and signed. The wife was aware 

at the time of the agreement that her husband would receive a 

military pension. The wife has presented no facts evidencing 

unconscionability, nor has she alleged the agreement was 

unconscionable. 

In Patzer, we affirmed our position that military pensions are 

marital assets subject to equitable distribution. Patzer at 37, 

792 P.2d at 1103 citing In re Marriage of Miller (1980), 187 Mont. 

286, 609 P.2d 1185. In 1981, the United States Supreme Court held 

that federal law precluded state courts from dividing military 
retirement pay pursuant to state community property or equitable 

distribution laws. McCarty v. McCarty (1981), 453 U.S. 210, 69 

L.Ed.2d 589, 101 S.Ct. 2728. However, the United States Congress 

essentially overturned that decision in 1983, allowing the states 

to apply the law of their respective jurisdictions. See 10 U.S.C. 

5 1408 (1983). As noted, the separation agreement was signed in 

1985. 

In Patzer, as here, the separation agreement stated it was a 

full and final settlement of their property rights. Patzer at 38, 

792 P.2d at 1103. The separation agreement signed by the Laskeys 

in Section Four above, recited each party's relinquishment to the 

property of the other. While the language of the Laskey separation 

agreement is not as strong as the wording of the Patzer agreement, 

it accomplishes the same finality regarding property not 

specifically mentioned therein. 

For the reasons set forth above, we conclude that it was 

reversible error for the District Court to reopen the decree absent 

a finding of unconscionability as required by statute. Therefore 

we reverse the order of the District Court and remand for 

proceedings not inconsistent with this opinion. 

We Concur: A 

- 

Chief Justice 
Justices 
Justice Fred J. Weber dissents as follows: 

I agree with the majority holding that under g 40-4-201(3), 

MCA, which covers separation agreements, the standard that would 

justify reopening the judgment is unconscionability. In substance 

the majority appears to conclude that because the wife is not 

arguing that the separation agreement is unconscionable, it is 

proper to conclude the court's order modifying the dissolution 

decree was reversible error on the part of the District Court. 

The Findings of Fact Conclusions of Law and Order, dated 

December 21, 1990, on the part of the District Court, pointed out 

that the motion to reconsider came on for hearing on December 19, 

1990, and that Mrs. Laskey and her counsel were present but that no 

appearance was made by Mr. Laskey or his counsel. Mrs. Laskey 

presented witnesses and the court made the following pertinent 

findings of fact and conclusions: 

FINDINGS OF FACT 

**** 

3. That the Legal Separation proceedings were never 

intended to serve as a complete legal division of the 

partiesv marital assets. 

4. During the proceedings to obtain a Legal Separation, 

Mr. Radford [Mrs. Laskeyvs attorney] informed Mrs. Laskey 

that she was entitled to a portion of Mr. Laskeyvs 

pension. It was Mr. Radfordts understanding that the 

military pension was controlled by federal statute and 

that it was not required that the military pension be 

specifically mentioned as a divisible marital asset in 

the Separation Agreement. 

5. That the absence of any mention of the military 

pension was intentional and did not constitute a waiver 

or relinquishment of Mr. Laskeyvs military pension as a 

marital asset. **** 
10. Mr. Laskey has offered to give Mrs. Laskey the 

entirety of the marital real property as well as 

increased child support should she waive the receipt of 

his military pension. This offer was never accepted. 

11. That at no time did Mrs. Laskey receive a marital 

asset which would have served as adequate consideration 

for a waiver of rights to a share of her husband's 

military pension. 

18. That as of this date, the military pension of Mr. 

Laskey has not been divided between the parties, nor has 

the real property accumulated by the parties located at 

3716 2nd Ave. South, Great Falls, Montana. 

CONCLUSIONS OF LAW 

3. That facts of this case presented at hearing clearly 

justify this court using its discretion to equitably 

relieve Petitioner [Mrs. Laskey] from the operation of 

the ruling made by this Court on June 7, 1990. 

4. That Petitioner, Mary B. Laskey has not relinquished 

or waived her right to her husband's military pension. 

5. That there was a lack of adequate consideration 

present for such a contract of waiver or relinquishment 

to have been effected. 

6. That the real property of the parties accumulated 

during the marriage, as well as the Respondent's military 

pension have yet to be divided between the parties in the 

dissolution proceeding. 

The District Court based its conclusions of law on Rule 60(b)(6), 

M.R.Civ.P. Notwithstanding any statements made in the Separation 

Agreement, the uncontradicted findings of fact on the part of the 

District Court establish that Mrs. Laskey understood she was 

entitled to a portion of the pension and that it was not required 

that the military pension be mentioned in the Separation Agreement; 

that the absence of a mention of the military pension was 
intentional and did not constitute a waiver on the part of Mrs. 

Laskey; and that Mrs. Laskey did not receive adequate consideration 

for a waiver of her rights as to the military pension. The 

District Court concluded that such facts clearly justified using 

its discretion to "equitably relieve" Mrs. Laskey from the 

operation of the ruling previously made. We note that the previous 

ruling on the part of the District Court was its holding that the 

military pension had been waived due to the language of the 

Separation Agreement which is the position taken by the majority 

opinion. 

While it is true that the District Court did not use the term 

unconscionable, it did conclude that it was justified in using its 

discretion to equitably relieve Mrs. Laskey from its previous 

ruling. The majority opinion states that Mrs. Laskey has presented 

no facts evidencing unconscionability. I conclude the following 

findings of fact of the District Court evidence unconscionability: 

The absence of any mention of the military pension was intentional 

and did not constitute a relinquishment of claim to the military 

pension; Mrs. Laskey's understanding through her attorney that the 

military pension need not be mentioned in the Separation Agreement; 

and at no time did Mrs. Laskey receive adequate consideration for 

a waiver of her rights in the military pension. I would therefore 

affirm the ~istrict Court. 

The majority opinion relies on the Patzer case. There are a 

number of factual distinctions between the two cases. In the 

Patzer case, the ~istrict Court considered a separation agreement 
as a part of the dissolution proceeding and specifically found the 

agreement was not unconscionable. In the present case, the 

separation agreement was entered into in 1985 and the dissolution 

took place in 1990. There was no finding of the absence of 

unconscionability in the present case as was present in Patzer. I 

therefore do not find the Patzer holding contro