NO. 96-101 IN THESUPREME

COURTOFTHESTATEOFMONTANA 1996

IN REMARRIAGEOF ALANL. HOOKER,

Petitioner andAppellant, and DIANEL. HOOKER,

Respondent and Respondent.

APPEALFROM: District Court of the Sixteenth Judicial District,

In and for the County of Garfield, TheHonorable Kenneth R. Wilson, Judge presiding.

COUNSELOFRECORD:

For Appellant: Donald R. Herndon, Herndon, Sweeney &Halverson, Billings, Montana For Respondent: J. Reuss, Wright, Tolliver &Guthals, Billings, Montana

Filed: Submitted onBriefs: June 27, 1996 Decided: September 12, 1996Justice Charles E. Erdmann delivered the opinion of the Court.

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1995 Internal Operating Rules, the following decision shall not be cited asprecedent andshall bepublished by its filing asapublic document with the Clerk of the Supreme Court andbyareport of its result to State Reporter Publishing Companyand West Publishing Company. Appellant Alan L. Hooker appeals from the amendedfindings of fact, conclusions of law, decree of dissolution, and final order issued by the Sixteenth Judicial District Court, Garfield County. Weaffirm. The dispositive issue on appeal is whether Alan should be estopped from challenging the oral property settlement which the District Court incorporated into its final decree of dissolution. FACTS In May1989, Alan L. Hooker petitioned the District Court for

adissolution of his marriage to Diane L. Hooker. Alan and Diane

were married in 1968 andtogether they operated Hooker Livestock, Inc., a farming and ranching business. Alan's parents (John and Mildred) also operated afarming andranching operation called the Hooker Cattle Company. Over the years, the operation of Hooker Livestock and Hooker Cattle becamecommingled and essentially the two companies were operated together. John died in 1975 andwhen Mildred passed away in 1982 her will provided for equal distribution of Hooker Cattle assets into two trusts--one for her

2grandchildren andoneproviding income to Alan during his life with

the remainder to her grandchildren. Toestablish the trusts, it became necessary to value the assets of both ranching operations and eventually the land, cattle, equipment, andcash were divided, which resulted in adetermination of the value of Alan's interest in the trust. Thedissolution proceeding wasset for trial onApril 2, 1991. Onthe morning of trial, the parties informed the court they were in the process of negotiating a settlement regarding property distribution. Later that day the parties told the court they had reached anagreement. Thecourt convened andthe parties read the settlement agreement into the record. Alan andDiane were sworn as witnesses and both of them stated that they understood and agreed to the terms of the property distribution. Both parties agreed to sign the settlement agreement once it was reduced to writing and the District Court requested a copy of the agreement once it was signed. However, subsequent efforts by the parties to reduce the agreement to writing failed and a written agreement was never executed. OnJune 4, 1991, Alan movedthe District Court to adopt the transcript of the April 2, 1991, proceedings as its findings of fact, conclusions of law, and final decree in the matter. On August 29, 1991, the District Court issued an order stating that the oral stipulation was a contractual obligation between the parties andordered it to bespecifically performed. OnOctober 2,

31991, the court entered its findings of fact, conclusions of law,

and decree of dissolution stating that the "parties['] property settlement agreement is not unconscionable and is approved by the Court." Onthe sameday, the parties filed astipulation into the record agreeing that the findings of fact, conclusions of law, and decree of dissolution should beentered. Over the course of the next two years, the parties proceeded to execute manyof the terms of the property settlement agreement. Property wasexchanged, titles were signed, and monies were paid. OnMarch 10, 1994, two years and five months after the court had entered its original decree, Alan filed amotion with the District Court to revoke or modify the decree with respect to the property distribution. Following anevidentiary hearing, the District Court entered anorder onMay4, 1994, denying Alan's motion to revoke or modify stating that: [Plrior to April 2, 1991, and subsequent thereto up to the hearing of April 28, 1994, the parties have voluntarily made exchanges, transfers and agreements which in effect resulted in analmost total performance of the settlement agreement

. . . . In April 1995, Diane filed a motion for leave to file a third-party complaint against the First Trust Companyof Montana to resolve the terms of a land transfer associated with the property distribution. OnMay4, 1995, the District Court denied Diane's motion and entered an amended decree and final order. In that order the District Court concluded that: The Property Settlement Agreement stipulated into the record at the trial of this cause onApril 2, 1991, is 4not unconscionable and is approved by the Court, and is

bythis reference incorporated herein as is this Court's Order dated May4, 1994, insofar asit makesanyfindings or conclusions not inconsistent with this Order. Thecourt found that: Thestipulation for settlement between the parties which has been approved by this Court has been almost totally performed and the remaining dispute over the land exchange is considered by the Court to bedeminimis. This appeal followed. DISCUSSION Theparties addressed the issues of whether the District Court erred in determining that the oral property settlement agreement

wasnot unconscionable andwhether the court erred in incorporating the agreement into the amendedfinal decree. However, wedetermine that the dispositive issue in this case is whether Alan should be estopped from challenging the agreement. Diane argues that since Alan assented to the agreement in open court and later moved the court to adopt the agreement as its findings of fact andconclusions of law, heshould beestopped from challenging the agreement. Diane also argues that Alan should be estopped because the agreement has been substantially performed. Alan argues that he should not be estopped from challenging the agreement because the District Court did not grant the motion filed by his former counsel to adopt the on-record stipulation as its findings of fact andconclusions of law. Alan also claims that substantial portions of the agreement have not been performed.

5In its May4, 1995, final order the District Court found that

the property settlement between the parties "has been almost totally performed andthe remaining dispute over the land exchange is considered by the Court to bedeminimis." Thecourt based its finding on a number of other findings it had made in its May4, 1994, order which it adopted into the final order. This Court has stated that if a district court reaches the correct result, its decision will be affirmed regardless of the court's reasoning. Farmers Union Cent. v. Department of Revenue (1995), 272Mont. 471, 475, 901P.2d 561, 563. Wedetermine it is not necessary to answer the evidentiary question of whether the parties' settlement agreement has been substantially performed. Instead, we conclude that Alan is judicially estopped from challenging the agreement. This Court has previously recognized the doctrine of judicial estoppel. gee Caekaert v. State Comp.Mut. Ins. Fund (1994), 268 Mont. 105, 885 P.2d 495; Rowland v. Klies (1986), 223 Mont. 360, 726 P.2d 310. Under this doctrine wedo not permit litigants to assert inconsistent and contradictory positions in separate litigation. Caekaert, 885 P.2d at 501. The clearest reason for the rule is to prevent parties from playing "fast-and-loose with the courts." Caekaert, 885 P.2d at 501 (citing Rowland, 726 P.2d at 315). To give rise to judicial estoppel, the first representation must have been made knowingly and free from the other party's inducement andit applies particularly to admissions

6or positions asserted under oath or in previous litigation.

Caekaert, 885 P.Zd at 501-02 (citing Rowland, 726 P.2d at 315). In the present case, the record is clear that Alan unequivocally expressed his assent to the stipulation which had been read into the record in open court at the April 2, 1991, hearing. In June 1991, through his counsel, Alan moved the District Court to adopt the on-record stipulation as its findings of fact and conclusions of law. In effect, the court granted the motion in its August 29, 1991, order when it stated that it deemed the stipulation to be acontractual obligation between the parties and ordered it specifically performed through the filing of findings of fact and appropriate decree. In September 1991, the parties stipulated that the findings, conclusions, and decree be entered. Alan's previous actions in agreeing under oath to the on-record stipulation, his motion requesting the court to adopt the agreement as its findings of fact and conclusions of law, and his stipulation that the decree be entered, all prevent him from now asserting a contrary position. We therefore hold that Alan is judicially estopped from challenging the oral property settlement agreement which the District Court incorporated into its amended final decree of dissolution. Affirmed. ald%L Justice

7Chief Justice



# /2!2zkw JusticesSeptember 12,1996

CERTIFICATEOFSERVICE IherebycertifythatthefollowingcertifiedorderwassentbyUnitedStates mail,prepaid,tothe followingnamed: DonaldR.Herndon,Esq. HERNDON,SWEENEY

&HALVERSON,P.C. Box80270 BillingsMT59108-0270 J.Reuss Wright,Tolliver&Guthais Box1977 BillingsMT59103

EDSMITH CLERKOFTHESUPREME COURT STATEOFMONTANA