No. 88-123

IN THE SUPREME COURT OF THE STATE OF MONTANA
1988

INRE THEMARRIAGE OF SHEILAG. LYMAN, Petitionerand Appellant, and
CHARLES E. LYMAN, Respondent.

APPEAL FROM: District Court of 

### the Eleventh Judicial District, Inand for the County of Flathead, The HonorableRobertHolter, Judgepresiding.
COUNSELOF RECORD:
ForAppellant: 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 SubmittedonBriefs: 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 theCourt are: 1. 

### Did the District Court err when it concluded there

was insufficient evidence of fraud to justify setting aside theparties'dissolution decree? 2. 

### Was the District Court's failure to increase the amount of child supportoriginally ordered clearly erroneous? Charles Lyman (Husband) and Sheila Lyman (Wife) were married in Skokie, IllinoisonJune 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 instantcontroversy. During the course of the marriage, Husband controlled the family finances. Husband testified that it was traditional inhis family that spouseswere 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, inpertinentpart: 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 familygifts whichhave enhancyd the ability to accumulate the marital estate and which aqreement consists of the parties agreeing that wife would make no claim to anv interest in the trusts or -d 

### -- gifted-property and Husband would concede 

### -- that tE assets reflected on said Exhibit be treated as

7- 

### resulting 

### -- from the equal contribution of both parties. For reasons ofprivacy, 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 divisionof the marital assetsbetween theparties. Exhibit B 

### to the copies retained by the parties reflects the agreed values. It is further agreed thatHusband shall have a rightof first refusalto 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

# wthe 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 aswas deemed necessary and has arrived -- 

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

### -- --- and reasonableness of the arrangement effected 

### - - hereby. (Emphasisadded.

### 1
The agreement and property settlement awarding each party in excess of $500,000 in assets was subsequently adopted by the DistrictCourt. Wife now seeks tomodify the property, maintenance and child support provision of the agreementon the basis of theHusband's fraudulent failureto fully informher 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), 137Mont. 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, misrepresentationsconcerning certaindebts andproperty,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 interesthad not been recorded; thatHusband couldbe compelled toproduce 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 thebargain, shewill not now be heard to describe her own decision as fraud. See e.g., Lancev. Lance (1981)

### , 195Mont. 176, 635P.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 fourwheel drive vehicle and traveling expenses while skiing is not a change in circumstances so substantial and continuingas to render the child support provisions of the original decree unconscionable within themeaning of § 40-4-208,MCA. The judgment is affirmed.

/' Justice 

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