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, Judgepresiding.

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 

### inmodifying the decree of dissolution as to the family home and

as to the husband's military pension. Frederick

### H. Laskey and Mary B. Laskey weremarried 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 Theparties have heretoforedivided theproperties, 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 thehouse with theproceeds to be divided equally; 

# .

# . . Section Four Release of Property and Estate Rights Eachpartyherebywaives, relinquishes,and releases 

### all right and claim in or to the property of the other, including all rights of dower and curtesy 

## . 

# . . Section Eight IndependentRepresentation by Counsel In connectionwith her status, rights, privileges, duties, and obligations, and the preparation of thisagreement,thewifehasbeen independently representedby 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 agreementwas incorporated into thedecree 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,andvisitation of children, arebindingupon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their ownmotion or onrequestof the court,that the separation agreement is unconscionable. In 1989,thehusband 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 shehad a vested interest in the pension and that mention of themilitary pension was not required. The District Courtawarded the wife 50percent of themilitary pension accrued during themarriage. In regardsto the familyhome the court ruled that the trial datewould be the date to determine the equity of the familyhome. 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 propertywas tobe sold no later than sixmonths following thedate the youngest child of the marriage reaches majority. Our standard of review is whether or not the District Court abused its discretion in applyingRule 60

### (b) (6)

### ,M.R.Civ.P., 

### to the motion for reconsideration. Marriage of Lorge (1984), 

### 207 Mont.

The District Court, in relievingwife of its prior judgment, relied on Rule 60

### (b) (6)

## , M.R.

### Civ.P. 

### Rule 60

### (b) (6) provides: Onmotion 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: Theprovisionsastopropertydispositionmay notbe 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 notmentioned in the agreement,her entitlement to ithas yet tobe 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. Patzerdid not claim the agreementwas unconscionable. Patzer at 38, 792 P.2d at 1103. She also argued that the district court did not consider themilitary pension because it was notmentioned 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. Themilitary pension was part of themarital estatewhen 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. InPatzer,we affirmed ourposition thatmilitary pensions are marital assets subject to equitable distribution. Patzer at 37, 792 P.2d at 1103 citing In reMarriage ofMiller (1980), 187Mont. 286, 609 P.2d 1185. In 1981, the United States Supreme Court held that federal law precluded state courts from dividing militaryretirement 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 10U.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 settlementof 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 thewording 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 reversibleerror for theDistrict Court toreopen thedecree 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 JusticeJustices

### 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 isunconscionability. 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 themotion to reconsider came on for hearing on December 19, 1990,

### and thatMrs. Laskey andher counselwerepresent 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 partiesvmarital assets. 4. During theproceedings to obtain a Legal Separation, 

### Mr. Radford [Mrs.Laskeyvs attorney] informedMrs. Laskey that she was entitled to a portion of Mr. Laskeyvs pension. It was Mr. Radfordtsunderstanding 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. Laskeyvsmilitary 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. Laskeyhas 

### not been divided between theparties, 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 casepresented at hearing clearly justify this court using its discretion to equitably relieve Petitioner [Mrs. Laskey] from the operation of the rulingmade 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 tohave been effected. 6. That the real property of the parties accumulated during themarriage, aswell as theRespondent'smilitary pension haveyet tobe divided between theparties 

### in the dissolutionproceeding. The District 

### Court based its conclusions of law on Rule 60(b)(6), M.R.Civ.P. Notwithstanding 

### any statementsmade 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 themilitary pensionbementioned in the SeparationAgreement; that the absence of a mention of the military pension wasintentional and did not constitute a waiver on the part of 

### Mrs. Laskey;and thatMrs. 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 operationof the rulingpreviouslymade. We note that theprevious 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. Themajority opinion states that

### Mrs. Laskeyhaspresented

no facts evidencing unconscionability. I conclude the following findings

### of fact of 

### the District Court evidenceunconscionability: The absence of any mention of themilitary pension 

### was intentional and did not constitute a relinquishment of claim to the military pension;Mrs. Laskey'sunderstanding through her attorney that the military pension neednotbe mentioned in the Separation Agreement; and 

### at no time did Mrs. Laskey receive adequate consideration for a waiver of her rights in themilitary pension. Iwould 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 agreementas 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 aswas present in Patzer. I therefore do not find the Patzer holding contro