NO. 92-586 

IN THE SUPREME COURT OF THE STATE OF MCNTANA 

1993 

IN RE THE MARRIAGE OF 

VIRGINIA ELEANOR FULLERTON, 

Joint Petitioner and Appellant, 

and 

HAROLD WILLIAM FULLERTON, 

Joint Petitioner and Respondent. 

APPEAL FROM: District Court of the Third Judicial District, 

In and for the County of Granite, 

The Honorable Ted L. Mizner, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Richard A. Reep, Reep, Spoon, & Gordon, Missoula, 

Montana 

For Respondent: 

Harry A. Haines and Gail M. Haviland, Worden, 

Thane & Haines, Missoula, Montana 

Filed: 

Submitted on Briefs: April 15, 1993 

Decided: May 11, 1993 
chief Justice J. A. Turnagn delivered thp Opinion cf the Court. 

Virginia E. Fullerton (Virginia) appeals the denial of her 

motion to set aside the Final Decree of Legal Separation and 

Marital Property Settlement Agreement. In accordance with Rule 

59 (d) and Rule 60 (c) , M.R.Civ. P., Virginia's motion was deemed 

denied after the District Court for the Third Judicial District, 

Granite County, failed to rule on it within forty-five days of its 

filing. We reverse and remand. 

We address one issue in this appeal: 

Did the District Court err in failing to hold a hearing on the 

motion to set aside the Final Decree of Legal Separation and 

Marital Property Settlement Agreement? 

As there is no transcript of any proceeding in this action and 

no findings of fact issued by the District Court, we provide a 

limited statement of facts taken from the pleadings contained in 

the District Court file and the parties' briefs. Virginia and 

Harold Fullerton (Harold) were married on May 21, 1971. After a 

twenty-year marriage, Virginia filed a Petition for Dissolution of 

Marriage in the Fourth Judicial District, Missoula County, in 

February 1991. For reasons that are disputed by the parties, 

Virginia dismissed the Petition for Dissolution on or about March 

14, 1991, and her attorney took no further action in representing 

her. 

After the dissolution proceedings were dismissed, Virginia 

and Harold, as joint petitioners, filed a Petition for Legal 

Separation and a Marital and Property Settlement Agreement in the 
District Court for the Third Judicial District, Granite County, on 

April 9, 1991. A Final Decree of Legal Separation incorporating 

the terms of the Property Settlement Agreement (collectively 

referred to as the Decree) was entered by the District Court on May 

7, 1991. 

After an attempt to reconcile their marriage failed, Harold 

asked his counsel to file a motion to convert the Decree into a 

Decree of Dissolution. However, pursuant to Rule 60(b), 

M.R.Civ.P., and 6 40-4-208(3), MCA, Virginia filed consolidated 

motions to set aside the Decree on June 25, 1992. Virginia asked 

the District Court, in the alternative, for an order establishing 

maintenance and child support payable by Harold. Virginia also 

asked the District Court to hold an evidentiary hearing on these 

motions. 

For reasons that are unknown to this Court, it was not until 

August 10, 1992, the last day to rule on Virginia's consolidated 

motions before they would be deemed denied under Rule 60(c), 

M.R.Civ.P., that the District Court received the complete file. 

The same day, the District Court issued a court memo outlining its 

position on the motion. The District Court reasoned that because 

of the voluminous and substantial issues to be resolved, it did not 

have adequate time to make an informed ruling on the motion before 

the forty-five-day time limit of Rule 60(c), M.R.Civ.P., would 

expire. In addition, the District Court believed a hearing on the 

motion was necessary. 

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As a result, the District Court requested that the parties 

stipulate to an extension of the forty-five-day time limit. The 

parties stipulated to the extension. However, the District Court 

was aware that there was an issue as to whether the extension was 

effective. The District Court stated that if it was concluded that 

the extension was effective, a hearing would be scheduled. For 

reasons that are unclear to this Court, Virginia, without further 

action by the District Court on the extension issue, appealed to 

this Court. 

Did the District Court err in failing to hold a hearing on the 

motion to set aside the Final Decree of Legal Separation and 

Marital Property Settlement Agreement? 

Harold does not raise the issue of whether the extension of 

time was effective, resulting in a premature appeal by Virginia to 

this Court. Therefore, this opinion is limited to the issues 

raised by Virginia. 

Virginia asks this Court to: (1) remand this case to the 

District Court in order that a hearing can be held on the 

circumstances surrounding the execution of the Petition for Legal 

Separation and Property Settlement Agreement; or (2) based upon the 

evidence before us, hold that the circumstances surrounding the 

execution of the Petition for Legal Separation and Property 

Settlement Agreement are unconscionable. 

In this appeal we are presented with a substantial amount of 

material which has not been admitted as evidence by the District 

4 
Court. In addition, the validity of the conflicting allegations 

and the underlying facts giving rise to the execution of the 

petition for Legal Separation and Property Settlement Agreement 

have not been addressed by the trier of fact. While this Court is 

mandated by statute to, in equity cases, "review all questions of 

fact arising upon the evidence presented in the record . . . ," 5 3- 

2-204(5), MCA, we are "not vested with original jurisdiction to try 

questions of fact de novo." Hoppin v. Lang (1928), 81 Mont. 330, 

333, 263 P. 421, 422. Therefore, we will not rule upon the 

conscionability of the circumstances surrounding the petition and 

property agreement. 

However, because of the magnitude of the allegations raised by 

Virginia, we agree with the District Court and Virginia that a 

hearing on the motion is necessary. Virginia alleges the Decree 

was the result of fraud, misrepresentation, unconscionability, 

conflict of interest by Harold's lawyer, concealment, and 

overreaching. Harold denies these allegations and contends 

Virginia had full knowledge of both the legal proceedings and the 

assets of the marriage. Harold also contends, as he did before the 

District Court, that Virginia's consolidated motion was not timely 

filed. Even so, Harold too agrees that a District Court hearing is 

necessary. 

Given the circumstances surrounding the execution of the 

Petition for Legal Separation and Property Settlement Agreement, 

and the circumstances leading to the denial of Virginia's motion to 

5 
set aside the Decree, we hold that a hearing on Virginia's 

consolidated motion is necessary, unless it is determined that her 

motion was not timely filed. 

We reverse and remand for further proceedings consistent with 

this opinion. 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1988 Internal Operating Rules, this 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 Montana Law Week, State Reporter and West Publishing Company. 

1 ' 

i . , 

We concur: 
May 11, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Richard A. Reep 

Reep, Spoon & Gordon 

P.O. Box 9019 

Missoula, MT 59807-9019 

Harry A. Haines & Gail hl. Haviland 

Worden, Thane & Haines 

P.O. Box 4747 

Missoula, MT 59806 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA