No. 88-123 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

IN RE THE MARRIAGE OF 

SHEILA G. LYMAN, 

Petitioner and Appellant, 

and 

CHARLES E. LYMAN, 

Respondent. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Robert Holter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Warden, Christiansen, Johnson & Berg; Gary R. 

Christiansen, Kalispell, Montana 

For Respondent : 

Hash, Jellison, O'Bri-en & Bartlett; M. Dean Jellison, 

Kalispell, Montana 

Filed: I 8 

Submitted on Briefs: July 14, 1988 

Decided: August 18, 1988 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Sheila Lyman appeals from the judgment of the District 

Court of the Eleventh Judicial District, Flathead County, 

which denied her petition to modify a prior dissolution 

decree. We affirm. 

The issues before the Court are: 

1. Did the District Court err when it concluded there 

was insufficient evidence of fraud to justify setting aside 

the parties' dissolution decree? 

2. Was the District Court's failure to increase the 

amount of child support originally ordered clearly erroneous? 

Charles Lyman (Husband) and Sheila Lyman (Wife) were 

married in Skokie, Illinois on June 20, 1964. Three children 

were born of the union but only two remained minors when the 

marriage was dissolved in 1984. One child remained at home 

during the instant controversy. 

During the course of the marriage, Husband controlled 

the family finances. Husband testified that it was 

traditional in his family that spouses were not made aware of 

financial matters and that he followed that practice. 

Consequently, Wife was not fully informed about the family's 

income or assets. 

The controversy at hand arises as a result of Wife's 

purported lack of knowledge. Prior to the entry of the 

dissolution decree, Wife initiated discovery procedures 

designed to determine Husband's financial worth. She 

requested, inter alia, a list of debts and of assets, 

information concerning the lease on a Godfather's Pizza 

establishment, information concerning a beer and wine 
license, the parties' 1983 joint income tax return, and. 

financial information about Husband's Mother. However, the 

parties entered into a separation agreement before the 

information was fully delivered. 

It provides, in pertinent part: 

13. The parties have agreed upon an equitable 

division of the marital estate which division is 

reflected on Exhibit A hereto. The division has 

been predicated on an agreement which reflects the 

unique circumstances of this case in that Husband 

----- is and has been the beneficiary of certain trusts 

and family gifts which have enhancyd the ability to 

accumulate the marital estate and which aqreement 

consists of the parties agreeing that wife would 

make no claim -d to anv interest in -- the trusts or 

gifted-property and Husband would concede -- that tE 

assets reflected 7- on said Exhibit be treated as 

resulting -- from the equal contribution of both 

parties. For reasons of privacy, the saidExhibit 

does not contain the values agreed upon for the 

various assets; however, the parties have agreed 

upon values and the division amounts to an equal 

division of the marital assets between the parties. 

Exhibit B to the copies retained by the parties 

reflects the agreed values. It is further agreed 

that Husband shall have a right of first refusal to 

meet the terms of any salg of the lot owned by 

Sheila and located adjacent to the family 

residence. 

14. In accordance with the provisions of Sec. 

40-4-201 M.C.A., it is agreed that the terms of 

this agreement, other than custody, support and 

maintenance matters, shall not be set forth in the 

Decree to be entered by the Court, but the Court 

may identify this agreement and shall have found 

the same not to be unconscionable, reserving the 

power to enforce its terms by all remedies 

available for enforcement of a judgment. Except 

for terms relatin to support, custod or 

fiitation -- of the ch?ldr~n, this agreement & nz 

- be modified w the Court. 

15. Each of the parties hereto - has - been 

represented &-counsel - of their choice -- and each 

agrees that there - has - been no reliance - - on 
representations b~ the other in reaching this 

agreement. Each Party -- has haT access -- to such 

information as -- was deemed necessary -- and has arrived 

-- at an independent judgment --- as to the equitableness 

and reasonableness - of - the arrangement effected 

hereby. (Emphasis added. 1 

The agreement and property settlement awarding each 

party in excess of $500,000 in assets was subsequently 

adopted by the District Court. Wife now seeks to modify the 

property, maintenance and child support provision of the 

agreement on the basis of the Husband's fraudulent failure to 

fully inform her of the value of family assets. 

Generally, the courts of this state are bound by 

separation agreement freely entered into by the parties 

unless the court determines the agreement to be 

unconscionable. Section 40-4-202, MCA. However, the 

adoption of such an agreement does not forever strip a court 

of its inherent equitable authority to re-open an agreement. 

A court of general jurisdiction has the right, 

entirely independent of statute, to grant relief 

against a judgment obtained by extrinsic fraud and 

may grant that relief either on motion in the 

original cause or upon separate equity suit . . . 

Cure v. Southwick (1960), 137 Mont. 1, 8, 349 P.2d 575, 579. 

In the instant case, Wife contends that Husband's 

failure to fully inform her of the family assets, 

misrepresentations concerning certain debts and property, and 

the forgery of her name on the couple's joint income tax 

return is sufficient to demonstrate extrinsic fraud. 

However, in order to demonstrate extrinsic fraud, Wife must 

show "a material misrepresentation or concealment of assets" 

which has prevented her from fully trying her case and that 

the other equities such as laches or negligence are not 

present. Pilati v. Pilati (19791, 181 Mont. 182, 189, 592 

P.2d 1374, 1378. We conclude she has not done so. 
Prior to the time of the signing of the separation 

agreement, Wife was clearly aware the tax return would soon 

be due; that the wine and beer license remained in Husband's 

name; that the transfer of the pizza parlor interest had not 

been recorded; that Husband could be compelled to produce the 

documents; and that she might not receive 50% of the family 

assets if the matter was decided by a court. Nonetheless, 

Wife voluntarily chose to enter into the settlement agreement 

rather than waiting for the documents. Having received the 

benefit of the bargain, she will not now be heard to describe 

her own decision as fraud. See e .g., Lance v. Lance (1981) , 

195 Mont. 176, 635 P.2d 571. 

We therefore conclude that the District Court correctly 

determined there was insufficient evidence of fraud to 

justify setting aside the agreement. Wife's attempt to 

modify the maintenance provision of the agreement must 

similarly fail. 

The second specification of error concerns the District 

Court's refusal to increase child support from $1,000 per 

month to $2,200 per month so that the remaining minor child 

can properly engage in ski activities. However, we conclude 

that the child's need for a new four wheel drive vehicle and 

traveling expenses while skiing is not a change in 

circumstances so substantial and continuing as to render the 

child support provisions of the original decree 

unconscionable within the meaning of § 40-4-208, MCA. 

The judgment is affirmed. 

/' Justice Y 

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I/