No. 96-379 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1997 

IN RE MARRIAGE OF 

RITA H. CANNON, 

Petitioner and Appellant, 

and 

DANIEL H. CANNON. 

Respondent and Respondent. 

APPEAL FROM: District Court of the Twentieth Judicial District, 

In and for the County of Lake, 

The Honorable Robert S. Keller, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Timothy J. Lape, Attorney at Law, 

Missoula, Montana 

For Respondent: 

John H. Gilliam, Skjelset & Gilliam, 

Missoula, Montana 

Submitted on Briefs: April 3, 1997 

Decided: May 8, 1997 

Filed: 
Justice Jim Regnier 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 tiling as a public document with the Clerk of the Supreme Court and by a report of its 

result to State Reporter Publishing Company and West Publishing Company. 

On September 5, 1984, the Fourth Judicial District Court, Lake County, granted a 

decree of dissolution for the marriage of Rita and Daniel Cannon. The decree incorporated 

the parties’ written agreement, signed in 1980, setting forth their respective rights and 

interests concerning real and personal property. The parties permanently separated in August 

1990. On October 15, 1990, Rita tiled a multi-count petition and complaint seeking to 

obtain a fair distribution of the assets acquired during the parties’ marriage and relationship. 

The District Court bifurcated the issue of common law marriage and putative spouse and the 

remaining issues of constructive trust and fraud on the court. On June 16, 1994, the District 

Court entered its findings of fact, conclusions of law and order holding that Rita was neither 

a common law wife, nor putative spouse. The remaining issues were tried and the District 

Court granted a directed verdict against Rita at the close of her case on her claim of 

constructive trust. The District Court order filed on February 7, 1996, denied Rita’s claim 

of fraud on the court. Rita appeals this order and the findings and conclusions tiled on 

February 7, 1996, by the Twentieth Judicial District Court, Lake County. We affirm. 

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The issue on appeal is whether the District Court erred in its conclusion that the 

conduct alleged to constitute fraud upon the court did not rise to a legally recognizable 

action. 

FACTUAL BACKGROUND 

Rita Cannon is a Native American and an enrolled member of the Confederated Salish 

and Kootenai Tribes of the Flathead Reservation. Rita completed the eighth grade before 

dropping out of school in the ninth grade. Rita and Dan began living together in a common 

law marriage in April 1965. The parties had three children of their own, and from 1965 

through 1984 they acquired a substantial amount of real and personal property. 

In July 1974, Dan and Rita signed a separation agreement prepared by the law firm 

in which Keith McCurdy was a member. The terms of the agreement provided that Dan 

receive all of the real property (5 10 acres), all of the personal property in his possession 

(including all of the farm and ranch equipment and livestock), and sole custody of their three 

children, subject to reasonable rights of visitation and a thirty-day per year temporary 

custody right by Rita. Rita signed quitclaim deeds to the real property to Dan. Dan 

meanwhile signed over to Rita all of his interest in a jointly owned 1973 Dodge automobile. 

The parties purchased an additional 150 acres for $120,000 in March 1980. Around 

this time, Dan went to see Keith McCurdy concerning the validity of the 1974 agreement. 

McCurdy drafted a new agreement which was signed by Dan and Rita on March 24, 1980. 

This agreement awarded Dan all the real property, all of the cattle, the farm machinery and 

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equipment, all checking and savings accounts in Dan’s name, the hay, grain, and other farm 

produce, and all additions to or substitutions for the chattels. The agreement awarded Rita 

her automobile and checking account. The agreement further provided that in the event of 

Dan’s demise, Rita would receive one-fourth of the net value of Dan’s estate in lieu of her 

elective share, homestead allowance, exempt property, and family allowance. By the terms 

of the agreement, if Dan initiated dissolution proceedings Rita would receive one-fourth of 

the net value of Dan’s assets, but if she initiated dissolution proceedings she would be entitled 

to only $10,000 as full satisfaction of all claims. McCurdy, who represented Dan concerning 

the 1980 agreement, did not allow the parties to sign the agreement the first time they met 

to review the document. McCurdy advised Rita to seek counsel and advised her that the 

agreement affected her rights. 

From 1980 to 1984, Rita managed the Camas Bath House in Hot Springs, Montana, 

which was owned by the Confederated Salish and Kootenai Tribes. The Tribes initially paid 

for the heating oil for the bathhouse but informed Rita that they would no longer do so after 

the end of 1983. Rita did not have the funds to pay for the heating oil and therefore asked 

Dan to help her borrow money to purchase the heating oil, as all the property was in his 

name, and none in hers. Dan refused to help but suggested that Rita could get $10,000 by 

filing for a dissolution under the terms of the 1980 Agreement. 

Rita went to Keith McCurdy to commence dissolution proceedings. McCurdy 

prepared the dissolution pleadings, including the petition, admission of service, and proposed 

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findings of fact, conclusions of law, and decree of dissolution. The petition for dissolution 

of marriage was signed by Rita on July 23,1984, and Dan signed an admission of service and 

waiver that same day. 

On September 5, 1984, McCurdy appeared with Rita before the Fourth Judicial 

District Court in a default dissolution proceeding. McCurdy’s prepared proposed findings 

and conclusions included the statement that the real and personal property agreement of 

1980, in which McCurdy represented Dan, was “fair, equitable and not unconscionable, and 

should be made a part of this Decree.” The District Court granted the dissolution petition and 

signed the proposed findings and conclusions. After the dissolution hearing, Dan and Rita 

continued living together at their home in Hot Springs until August 1990 when they 

permanently separated. Thereafter, Rita filed a multi-count petition and complaint seeking 

to obtain a fair distribution of the assets acquired during the parties’ marriage and 

relationship. Rita appeals from the findings of fact, conclusions of law, and order of the 

District Court entered on February 7, 1996, denying her claim of fraud on the court. 

DISCUSSION 

Did the District Court err in its conclusion that the conduct alleged to constitute fraud 

upon the court did not rise to a legally recognizable action? 

This Court reviews a district court’s conclusions of law to determine whether the 

court’s interpretation of the law is correct. In re Marriage of Miller (1995), 273 Mont. 286, 

291, 902 P.2d 1019, 1021; Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 

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459,469, 898 P.2d 680,686; Steer, Inc. v. Department ofRevenue (1990), 245 Mont. 470, 

474-75, 803 P.2d 601,603-04. 

Pursuant to Rule 60(b)(3), M.R.Civ.P., a party can seek relief from a judgment for 

fraud, either extrinsic or intrinsic. Relief under this provision, however, is only available if 

a motion is filed not more than sixty days after judgment. Rita’s motion to modify the 

dissolution here was made approximately eight years after the decree was entered. Therefore 

she does not have an avenue of relief under this provision. However, Rule 60(b), 

M.R.Civ.P., contains a residual clause allowing a party to bring an independent action to 

reopen a judgment for fraud upon the court without time limitation. It provides: 

This rule does not limit the power of a court to entertain an independent action 

to relieve a party from a judgment, order, or proceeding, or to grant relief to 

a defendant not actually personally notified as may be required by law, or to 

set aside a judgment for fraud upon the court. 

This Court has previously held that to support an independent action for fraud under 

this residual clause, the fraud must be extrinsic, not intrinsic. Miller, 902 P.2d at 1022; Filler 

v. Richland County (1991), 247 Mont. 285,289,806 P.2d 537,539. Extrinsic fraud must be 

collateral to the matters tried by the court and may not include fraud in the matters upon 

which judgment was rendered. Marriage of Miller, 902 P.2d at 1023; Salway v. Arkava 

(1985), 215 Mont. 135, 140, 695 P.2d 1302, 1306. 

Rita asserts that the District Court erred when it concluded that although the conduct 

by McCurdy was egregious, it did not rise to the level of conduct necessary to support a 

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legally recognizable cause of action for extrinsic fraud. The District Court, in its conclusion 

number three, specifically stated that 

[t]he conduct in this case was “egregious,” but it does not rise to the level of 

“bribery of a judge or member of the jury; the fabrication of evidence in which 

an attorney has been implicated; or the employment of counsel to influence the 

court.” 

Rita asserts that this language employed by the District Court limits fraud upon the court to 

only consist of bribery, fabrication of evidence, or improper influence. Dan argues that the 

District Court’s language derived from Miller, 902 P.2d 1019, only provided examples of the 

type of conduct which can rise to the level of fraud upon the court. 

Therefore, this Court must examine the record to determine if the District Court 

correctly interpreted the law when it concluded that the conduct alleged to constitute fraud 

upon the court did not rise to a legally actionable level under Rule 60(b), M.R.Civ.P. 

Rita specifically alleges that Keith McCurdy failed to deal candidly with the court, as 

he did not inform the court of his prior representation of Dan and of his involvement in 

creating the property agreement. She also asserts that McCurdy’s actions constituted fraud 

upon the court because he did not inform the court of his alleged belief that the agreement 

was unfair and that he presented proposed findings of fact, and conclusions of law which 

stated that the agreement was fair, equitable, and not unconscionable. 

It is clear that these actions do not tit within any of the examples of extrinsic fraud as 

provided in Miller, 902 P.2d 1019. Furthermore, even if the egregious conduct by McCurdy 
constituted fraud, it was intrinsic to the case and not extrinsic. McCurdy’s failure to inform 

the court of his belief that the agreement was not fair and his failure to introduce evidence 

of the parties’ assets and liabilities are directly related to matters upon which judgment was 

rendered. This failure did not prevent a fair submission of the controversy, as McCurdy 

testified that he did not introduce this evidence because the parties had clearly agreed upon 

the distribution of their assets, and that once they had reached this agreement he considered 

it to be fair and equitable and not unconscionable for the parties. The District Court had the 

agreement before it and had Rita’s own testimony regarding the petition and the agreement 

when it specifically incorporated the agreement into the decree, 

In addition, this Court has held that false or fraudulent representations or 

concealments which are made during court proceedings are intrinsic and not extrinsic fraud 

and therefore are not grounds for reopening a judgment by an independent action. Miller, 

902 P.2d at 1023; State Compensation Ins. Fund v. Chapman (1994), 267 Mont. 484,490, 

885 P.2d 407,411. Therefore, even McCurdy’s alleged failure to disclose his personal beliefs 

about the agreement does not rise to the level of extrinsic fraud, or fraud upon the court as 

is required to vacate a final judgment pursuant to the residual clause in Rule 60(b), 

M.R.Civ.P. 

We therefore affirm the order by the Twentieth Judicial District Court. 

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We Concur: 

Justices 

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Justice W. William Leaphart, dissenting. 

I dissent. The District Court held that, although counsel’s conduct in this case was 

egregious, it did not rise to the level of extrinsic fraud, i.e., bribery of a judge or member of 

the jury or the fabrication of evidence, or the employment of counsel to influence the court. 

In re Marriage of Miller (1995), 273 Mont. 286,292,902 P.2d 1019, 1022. 

This Court agrees, holding that the alleged fraud is intrinsic to the case, not extrinsic. 

Although I find that it is not easy to neatly categorize acts of fraud as being intrinsic or 

extrinsic, this case, I believe, presents elements of both. I agree that counsel’s failure to 

advise the court of his prior representation of Dan and of his involvement in creating the 

property agreement would constitute intrinsic, rather than extrinsic fraud. 

However, the fact that the judicial process was used as a tool to lever Rita into 

accepting a measly $10,000 under the guise of a “divorce” is another matter. The whole 

“dissolution” proceeding was a sham on the court perpetrated for the sole purpose of denying 

Rita her fair share of the marital assets. She needed money to buy heating oil. Although 

there were sufficient marital assets to cover this expense or serve as security for a loan, Dan 

refused to give her the money. Instead he took advantage of her financial straits and levered 

her into filing for divorce so she would be restricted to an award of $10,000; the paltry sum 

which had been allotted to her under the property agreement if she tiled dissolution 

proceedings. There was, in fact, no dissolution of the marital relationship. The parties 

continued living together in their home for another six years. Through the machinations of 

Dan and the assistance of counsel, the court unwittingly gave its stamp of approval to a 

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decree which allowed Dan to enjoy the best of both worlds. With decree in hand, Dan was 

able to continue his marital relationship with Rita without any further concern that she might 

lay claim to a fair share of their considerable marital assets. 

Notwithstanding the fact that Rita was herself duped into participating in this ruse, the 

whole process was, nonetheless, an abuse of the judicial system for illegitimate purposes. 

When the court is deceived into allowing the judicial process to be used as a means to 

accomplish ulterior goals not contemplated by the law, that is collateral to the matter 

ostensibly tried to the court and, in my view, extrinsic fraud. 

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