No. 83-552 INTHE SUPREME COURT OF THE STATEOF ?IOPJTANA 1984

IN RE THE J%ARRIAGE OF DEAN ERVIN KEIRLE, Petitioner and Respondent, and JEANETTEKALINA KEIRLE, now known asJEANETTEKALINAANDERSON

## , Respondent and Appellant.

APPEAL FROM: District Court of the Sixteenth Judicial District, Inand for the County of Fallon, TheHonorableAlfred B. Coate, Judgepresiding.
COUNSEL OF RECORD: ForAppellant: Denzil R. Young,Baker,Montana Richard B. Baer,Bismarck,North Dakota For Respondent: Gene Huntley & Ira Eakin, Baker,Montana

Submitted on Briefs: March 15, 1984 Decided: Nay 29, 1984

Filed: 

### TiAfiy 

### fl

## 31984

- ClerkMr. Justice John C. Sheehy delivered the Opinion of the Court.
Jeanette Kalina Keirle a-ppealsfrom a dismissal of her motion for modification of a divorce decree by the District Court for the Sixteenth Judicial District, Fallon County. Dean and Jeanette Keirle were married and divorced twice, the second dissolution effective November 27, 1978. Prior to this second dissolution, the parties signedwritten stipulations as to child custody and support, property division and maintenance. According to the stipulations, Jeanette was to live in the family home, located in Baker, until sometime in 1979. She was entitled to an undivided one-half interest in the residence, which was eventually to be sold, and was entitled to take with her when she moved certain items of personal property. The stipulations were incorporated into the November 27, 1978 dissolution decree. On April 14, 1983, Jeanette filed a motion to amend and/or clarify judgment and property division and to increase child support. She requested that the decree 

### be amended to allow a cash payment in lieu of the household items shewas entitled to,claimingDean refused to allowherpossession of them. She also requested that the value of the home be determined and.divided between theparties and that the child support payments be increased. On June 28, 1983, a hearing
was held on themotion. Inresponse to Dean's assertion that the time limits cited in Rules 59 and 60,M.R.Civ.P., had expired, Jeanette moved to amend her motion to reflect that it was brought under sections 40-4-201, 40-4-204, and 40-4-208,MCA. Hermotion was granted.The District Court heard argument on the issue of whether the dissolution decree should be modified. According to stipulation of the parties, the child support payments were increased. The District Court ruled that the time allowed for appeal of the dissolution decree had passed and that it did not have jurisdiction to modify the property division. A judgment increasing the child support payments according to the stipulation and dismissing the remainder of Jeanette'smotion was entered October 31, 1983. We are faced with the issue of whether the District Court properly dismissed Jeanette's motion to amend the dissolutiondecree. Jeanette contends that the dismissalwas improper according to law and that the District Court erred procedurally by not entering a judgment with findings of fact
or which properly reflected its rulings at the June 28, 1983 hearing. Rule 59(g), M.R.Civ.P., provides that z "motion to alter
or amend the judgment shallbe served not later than 10 days after the service of the notice of the entry of the judgment



# ... " Rule 60(b), M.R.Civ.P. provides that a motion to relieve a party from a judgment must be made within "a reasonable time" and in some cases not more than 60 days after the judgment or notice of entry of the judgment. Jeanettedid not satisfy the requirements for either of these motions and was therefore properly precluded from making them. Armstrong v. High Crest Oil, Inc. (1974),164 Mont. 187,520 P.2d 1081. To have a property division modified otherwise a party must complywith section 40-4-208,MCA,which provides: "(3) Theprovisions as to property dispositionmay not be 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." In finding no existence of conditions that would justify reopening the judgment in this case, the District Court was not required to enter findings of fact. Rule 52(a),
In this case the appellanthas not claimed. the existence of unconscionability, fraud, or any other inequitable situation which would give a court a legal basis upon which to reopen the judgment. She is attempting to enforce the judgment which incorporated the parties' stipulations as to the property division by making a motion to modify. She is precluded by statutory time limits and by the fact that she has no legal basis to compel a court to reopen the judgment. In Hadford v. Hadford (Mont. 19811, 633 P.2d 1181, 1184, 38 St.Rep. 1308, 1312,thisCourtnoted: "By section 40-4-201(2)

## ,MCA, district courts must abide by the terms of a property settlement agreement unless its terms are unconscionable. This statute has a dual purpose. First, it expresses a clear policy encouraging property settlement agreements. Obviously, a property settlement agreement would be useless if the courts were free to set them aside whenever the mood struck. Under the statute,theproperty settlement decree must be approved unless the District Court finds it tobe unconscionable. "The second purpose has the goal of finality. A property settlement agreement would alsobe useless if the courts were free to set them asid.eat any time simply on the motion and allegation of one of the parties that the property settlement agreement merged with the decree is unconscionable.. 

# . ."
The judgmentof theDistrict Court is affirmed.

L -.. , , ,

### .w.-w.

# - JusticeWe Concur: 

# 344 QJG.4

# 4-8Q
Chief Justice