IN THE SUPREME COURT OF THE STATE OF MONTANA 

IN RE THE MARRIAGE OF 

and 

APPEAL FROM: ~istrict Court of the Ninth Judicial District, 

In and for the County of Toole, 

The Honorable Marc G. Buyske, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

E. Lee LeVeque; Conklin, Nybo, LeVeque & 

Murphy, Great Falls, Montana 

For Respondent: 

Barbara E. Bell; Bell & Marra, Great Falls, 

Montana 

Filed: 

Submitted on Briefs: October 10, 1996 

Decided: November 14, 1996 
Justice W. William Leaphart 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 as precedent and shall be published by its filing as a public 

document with the Clerk of the Supreme Court and by a report of its 

result to State Reporter, and West Publishing Company. 

Appellant, Camille Seubert (Camille), appeals from the Ninth 

Judicial District Court, Toole County, determination that her 

October 17, 1995, settlement agreement with Russell Seubert (Russ) 

was not unconscionable. We affirm. 

We restate the issue raised by Camille as follows: 

Did the District Court abuse its discretion by 

determiningthat the settlement agreement between Camille 

and Russ was not unconscionable? 

BACKGROUND 

Russ and Camille's marriage was dissolved by court order in 

November of 1994. Prior to the hearing before the District Court, 

Russ hired an accountant, Steven Nichols (Nichols), to value his 

interest in Seubert Insurance. Camille did not have an independent 

valuation of Russ' interest in Seubert Insurance completed at that 

time. Nichols valued Russ' twenty seven and one half percent 

interest in Seubert Insurance at $53,544. In valuing Russ' 

interest in Seubert Insurance, Nichols used three methods approved 

by IRS Revenue Ruling 59-60. These methods included determining 

assets and liabilities at fair market value, discerning the earning 

capacity of the company, and the market value of stocks of similar 

corporations. Nichols averaged the results of these three 

2 
approaches and valued Russ' interest at $53,544. Using this 

assessment in determining the value of Seubert Insurance, Russ and 

Camille executed a written custody, support and property settlement 

agreement. The next day, Camille notified her attorney that she 

wanted to rescind the agreement. 

Camille made a motion to re-open discovery concerning the 

value of the Russ' twenty seven and one half percent interest in 

Seubert Insurance. The District Court granted her motion and 

opened discovery which allowed Camille to obtain her own appraisal 

of Seubert Insurance. Camille hired Nicholas Bourdeau (Bourdeau) 

to conduct a valuation of Russ' interest in Seubert Insurance. 

Bourdeau arrived at his valuation by capitalizing excess earnings, 

also known as goodwill, and then using the cash flow method of 

accounting. Using this method, Bourdeau valued Russ' interest at 

$128,237, a difference of over $74,000 from Nichols' assessment. 

In addition, Camille argued that Nichols' valuation made the 

agreement unconscionable because his figure was nearly 550,000 

lower than the $102,000 Russ was guaranteed under a Restrictive 

Stock Agreement. The District Court, however, ultimately 

determined that the property settlement agreement was not 

unconscionable, finding that nothing in the circumstances 

surrounding the execution of the property settlement supported 

Camille's contention. Focusing on the disparity between the two 

valuations of Russ' interest in Seubert Insurance, Camille has 

filed this appeal challenging the District Court's determination 

that the settlement agreement was not unconscionable. 
DISCUSSION 

Did the District Court abuse its discretion by 

determining that the settlement agreement between Camille 

and Russ was not unconscionable? 

The standard of review of a district court's finding of 

conscionability in the distribution of assets and liabilities is 

abuse of discretion. In re Marriage of Caras (1994), 263 Mont. 

377, 380-81, 868 P.2d 615, 619 (citing In re Marriage of Hamilton 

(1992), 254 Mont. 31, 36, 835 P.2d 702, 704-05). When a district 

court engages in conscionability determinations, the result is 

neither a pure finding of fact nor a pure legal conclusion. 

Rather, the determination is a discretionary action and is presumed 

to be correct, and will not be overturned by this Court absent an 

abuse of discretion. In re Marriage of Bernard (1994), 264 Mont. 

103, 107, 870 P.2d 91, 93. In the instant case, Camille argues 

that the settlement agreement she entered into was unconscionable 

because the value of Russ' ownership interest in Seubert Insurance 

did not reflect the fact that the Restrictive Stock Agreement 

guaranteed the value of Russ' interest would be $102,000 

Section 40-4-201(2), MCA, provides: 

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 making its determination of the conscionability of this 

settlement agreement, the District Court may consider the economic 

circumstances of the parties resulting from the agreement, and any 
other relevant evidence including the conditions under which the 

agreement was made. Commissioners' note to § 40-4-201(2), MCA. 

In Green v. Green (1978), 176 Mont. 532, 579 P.2d 1235, this Court 

declined to define the word "unconscionable" for purposes of 

modifying a child support agreement and explained "we will follow 

the policy of determining on a case to case basis, from the 

underlying facts, whether the evidence is sufficient to be 

unconscionable." Green, 579 P.2d at 1238-39. 

Although this Court has not specifically defined what 

constitutes unconscionability, an example of unconscionability can 

be seen in Best v. Best (1982), 202 Mont. 109, 118, 656 P.2d 201, 

206. In Best, one spouse did not receive independent counsel and 

did not have complete knowledge of concealed assets estimated to be 

in excess of $1,000,000. Best, 656 P.2d at 206. The fact that one 

spouse was not made aware of the existence of such significant 

assets made the settlement agreement patently unfair. In contrast, 

Camille was made aware of Russ' interest in Seubert Insurance 

throughout settlement negotiations. Camille was represented by 

counsel at the time she entered this agreement and the only 

complaint she has regarding the settlement agreement relates to the 

estimated value of Seubert Insurance. 

The disparity between the valuation of Russ' interest in 

Seubert Insurance, provided by Russ' C.P.A. and Camille's C.P.A. is 

not by itself sufficient evidence that the settlement agreement was 

unconscionable. As § 40-4-201(2), MCA, explains, a separation 

agreement is binding upon the court unless it finds, after 
. . 

. . . . 

considering the economic circumstances of the parties and any other 

relevant evidence, that the separation agreement is unconscionable. 

Using Nichols' valuation of Seubert Insurance, the property 

settlement agreement awarded Russ his interest in Seubert 

Insurance, his interest in a Farmer's Insurance contract, a 50% 

interest in his office building, his IRA, his Toyota Camry, and 

various personal property worth a total value of $125,807. In 

return, Camille received $53,000 dollars in equity in her home, her 

car, various household goods and her pension. After subtracting 

the amount of debt owed by each party, Russ' assets totaled 

$93,544, while Camille's assets totaled $95,100, a difference of 

$1,546. In addition to this division of property, Russ also agreed 

to make Camille's car payments of $828 per month, to pay $225 per 

month for day care, and $350 per month for maintenance over the 

next five years. 

After considering the agreement as a whole, the record 

indicates that Camille's decision to enter the settlement agreement 

was reasonable. There is nothing in the record to indicate that 

the settlement agreement between Camille and Russ was anything less 

than fair. Even if the valuations by Russ' C.P.A. were erroneous, 

the agreement entered into by Camille and Russ was far from 

unconscionable. 

Accordingly, we affirm the finding of the District Court. 
We concur: 

c Justices