NO. 92-268 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

IN RE THE MARRIAGE OF 

DOROTHY DAVIES STOUT, 

formerly DOROTHY DAVIES GOLLEHON, p'E: 

Petitioner and Appellant, p.q < 

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and 

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THOMAS F. GOLLEHON, C,d ~b .. :::c ~:>; .::& 

CLERK OF Sl,i?li.;.i.(:: 

Respondent and Respondent. STATE 0;: iirii~ ~NNA 

APPEAL FROM: District Court of the Ninth Judicial District, 

In and for the County of Teton, 

The Honorable R. D. McPhillips, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

K. Dale Schwanke; Jardine, Stephenson, Blewett & 

Weaver, Great Falls, Montana 

For Respondent: 

Daniel Donovan, Attorney at Law, Great Falls, 

Montana 

Filed: 

Submitted on Briefs: June 23, 1993 

Decided: October 4, 1993 
Justice Karla M. Gray delivered the Opinion of the Court. 

Dorothy Gollehon appeals from the findings of fact, 

conclusions of law and decree of dissolution entered by the Ninth 

Judicial District Court, Teton County, distributing the marital 

estate and declining to award attorney's fees and costs. We 

affirm. 

The following issues are raised on appeal: 

1. Did the District Court err in distributing the marital 

property? 

2. id the District Court err by declining to award 

attorney's fees and costs? 

Dorothy Stout (Dorothy) and Thomas Gollehon (Thomas) were 

married on December 30, 1987. At Dorothy's request, they signed a 

premarital agreement on that date expressing their desire to "keep 

separate and apart" their respective assets and obligations 

acquired either before or during the marriage. 

Prior to the marriage, Dorothy resided on leased property 

referred to as the "Kreger Place" near Fairfield, Montana, where 

she raised Tarentaise cattle. Dorothy characterized the Kreger 

lease as a "sweetheart deal," asserting that she was charged only 

one-third the cost of leasing comparable property and was also able 

to sublease a portion of the property. 

Dorothy moved her cattle onto Thomas' ranch, located eighteen 

miles from the Kreger Place, shortly after the marriage. She 

intended the cattle to remain there only for the winter and calving 

2 
season, after which she would return them to the Kreger Place. 

However, Thomas insisted that she terminate the lease. Dorothy 

claims that Thomas made the forfeiture of the lease a condition for 

remaining married; Thomas asserts that she had agreed prior to the 

marriage to terminate the lease. In any event, Dorothy 

relinquished the lease in early 1988. 

Thomas informed Dorothy that he wanted a divorce in April of 

1989. Two months later, Dorothy filed a petition to dissolve the 

marriage, asserting that it was irretrievably broken and requesting 

an equitable division of the marital assets and obligations. 

Dorothy subsequently determined that continuing to raise 

cattle was not feasible given the loss of the Kreger lease and the 

additional expense that would be involved in re-establishing her 

ranching operation. As a result, Dorothy sold her cattle at an 

auction sale held in October of 1989. Dorothy and Thomas formally 

separated later that month. 

The District Court held a dissolution hearing on March 22, 

1990. On September 25, 1991, the parties stipulated to allow the 

court to order the marriage dissolved pending later entry of the 

decree of dissolution. The court entered an order dissolving the 

marriage on November 1, 1991 and filed its findings of fact, 

conclusions of law and dissolution decree on April 17, 1992. The 

court concluded that the parties were entitled to their individual 

assets and liabilities as of the termination of the marriage. The 

court also ordered that Dorothy and Thomas pay their own attorney's 

fees and costs. Dorothy appeals. 
Did the District Court err in distributing the marital property? 

The ~istrict Court found that Dorothy and Thomas had executed 

a premarital agreement at Dorothy's suggestion and concluded that 

the agreement was valid and enforceable. The court also made 

extensive findings concerning the factors set forth in 5 40-4-202, 

MCA. Based on those findings, the court concluded that it was 

equitable for Dorothy and Thomas each to retain their own assets 

and liabilities as of the termination of the marriage. 

We review a district court's findings of fact relating to the 

division of marital property to determine whether they are clearly 

erroneous. Marriage of Danelson (1992), 253 Mont. 310, 317, 833 

P.2d 215, 219. A district court, however, has no discretion in 

determining a question of law; thus, we review a court's conclusion 

of law to determine whether it is correct. Danelson, 833 P.2d at 

219-20. 

The bulk of Dorothy's asserted errors relate to the District 

Court's findings under 5 40-4-202, MCA. She contends that a number 

of the findings were clearly erroneous because they were not 

supported by substantial evidence or reflect the court's 

misapprehension of the effect of the evidence. However, because 

the ~istrict Court's conclusion regarding the enforceability of the 

premarital agreement is dispositive if correct, we focus initially 

on that conclusion. 

Dorothy challenges the enforcement of the premarital agreement 

on two grounds. First, she contends that she did not enter the 

agreement voluntarily because she did not know that Thomas would 
insist on the relinquishment of the Kreger lease. Second, Dorothy 

asserts that she did not know Thomas1 financial situation when the 

agreement was executed. 

Thomas and Dorothy executed their premarital agreement on 

December 30, 1987. The Uniform Premarital Agreement Act (the Act), 

codified at 55 40-2-601 through -610, MCA, applies to premarital 

agreements executed on or after October 1, 1987. 1987 Mont. Laws, 

Ch. 189, Sec. 17. Thus, the Act applies to the agreement before 

US. 

Section 40-2-608, MCA, of the Act specifically governs the 

enforceability of premarital agreements. A premarital agreement 

may be set aside under subsection (1) of that statute if the party 

seeking to avoid the agreement proves that it was not executed 

voluntarily. The sole basis for Dorothy's claim regarding 

voluntary execution is her assertion that she did not know Thomas 

would insist on termination of the Kreger lease when she signed the 

agreement. Even if her assertion is true, Dorothy cites no 

authority to support her contention that a lack of knowledge 

concerning Thomas' future conduct renders her execution of the 

agreement involuntary. Furthermore, the record reflects that the 

premarital agreement was executed at her suggestion and drafted by 

her attorney. Thus, there is no merit to her contention that she 

did not enter into the agreement voluntarily. 

Dorothy's assertion that she did not know the extent of 

Thomas' assets also provides no basis to preclude enforcement of 

the agreement under 5 40-2-608, MCA. A party must prove that a 
premarital agreement was unconscionable when executed and that 

there was no fair and reasonable disclosure of the other party's 

property and financial obligations before the agreement can be set 

aside under 5 40-2-608(2), MCA. Dorothy has not contended that the 

premarital agreement was unconscionable at the time of execution. 

Indeed, such a position would be untenable considering that the 

agreement was executed at her suggestion and drafted by her 

attorney. Thus, her assertion that she did not know the extent of 

Thomas' property is not a sufficient basis to set aside the 

agreement under 5 40-2-608(2), MCA. We conclude that the ~istrict 

Court correctly concluded that Dorothy and Thomasf premarital 

agreement was valid and enforceable. 

We next turn to the terms of the agreement to ascertain the 

distribution of the marital property. The premarital agreement 

reflects Dorothy and Thomas' intent "to keep separate and apart" 

the assets and liabilities they individually acquired either prior 

to or after the marriage. The agreement expressly governs Itany 

rights that either might or could have as to the other or the 

property owned by the other by reason of said marriage." 

Furthermore, the premarital agreement contains Dorothy and Thomas' 

mutual waiver of all rights and interests in the other's property 

that they might acquire as a consequence of the marriage. Thus, 

according to the terms of the premarital agreement, Dorothy was not 

entitled to any share of Thomas1 assets upon the dissolution of the 

marriage. 

Dorothy contends that, even if the premarital agreement 
precludes her from obtaining an interest in Thomasf assets that 

might have arisen as a consequence of their marriage, it should not 

be construed to prevent her from obtaining damages resulting from 

the termination of the Kreger lease. Relying on 66 Am. Jur. 2d 

Release 14 (19731, she asserts that a person cannot release 

another from liability arising out of the other's future acts. 

The obvious flaw in Dorothyfs position is that the termination 

of the Kreger lease is not relevant to the distribution of property 

upon dissolution of the marriage. As discussed above, the 

distribution of the marital property is governed by the premarital 

agreement in which Dorothy waived all her rights and interest to 

Thomasf individually-owned assets acquired either before or during 

the marriage. Any appropriate action Dorothy may have for damages 

resulting from Thomas' insistence that she relinquish the lease is 

separate and apart from the dissolution proceeding and the 

distribution of the marital estate therein. 

Finally, we turn to Dorothy's alleged errors concerning the 

District Court's findings under 5 40-4-202, MCA. She asserts that 

the findings did not take into account the financial detriment, 

including additional expenses and loss of future income, that she 

incurred as a result of Thomasf insistence that she terminate the 

Kreger lease. On that basis, she contends that an equitable 

distribution of the marital property requires that she be awarded, 

at a minimum, $36,837 from Thomasf assets. 

Prior to enactment of the Act, a premarital agreement was but 

one factor a district court was required to consider when 
distributing marital property under 5 40-4-202, MCA (1985). In re 

the Marriage of Johnston/~urrin (1992), 255 Mont. 421, 425, 843 

P.2d 760, 762. However, the legislature added subsection (5) to 5 

40-4-202, MCA, when it passed the Act: that subsection requires 

premarital agreements to be enforced as provided by the Act. Thus, 

where a premarital agreement is enforceable under the Act, the 

property distribution is governed by the agreement and not the 

factors set forth in 5 40-4-202, MCA. Therefore, we do not address 

Dorothy's asserted errors relating to the court's findings 

regarding those factors. 

While the District Court erred in applying the § 40-4-202, 

MCA, factors rather than relying solely on the valid and 

enforceable premarital agreement, its distribution of the marital 

property was in accord with that premarital agreement. We hold 

that the District Court did not err in distributing the marital 

property. 

Did the District Court err by declining to award attorney's 

fees and costs? 

Section 40-4-110, MCA, allows the district court to award 

attorney's fees and costs to either party in a dissolution action 

after considering the parties' respective financial resources. The 

district court has considerable discretion in making such an award. 

In re the Marriage of Peetz (1992), 252 Mont. 448, 453, 830 P.2d 

543, 549. We will not overturn a court's denial of attorney's fees 

absent an abuse of discretion. In re the Marriage of Wackler 

(Mont. 1993), 850 P.2d 963, 966, 50 St.Rep. 406, 408. 

8 
Dorothy asserts that the District Court's only finding 

concerning this issue was that she did not include a specific 

request in her pleadings. She also contends that her requests for 

fgsuch other and further relief" in her petition and for attorney's 

fees in her proposed findings of fact, conclusions of law and 

decree were a sufficient basis for the court to award attorney's 

fees and costs. Finally, relying on In re the Marriage of Johnsrud 

(1978), 175 Mont. 117, 572 P.2d 902, Dorothy contends that the 

District Court has jurisdiction to make such an award even absent 

a specific request. 

Dorothy's assertion that the District Court limited its 

findings on attorney's fees to her failure to make a request is not 

supported by the record. In addition to that finding, the court 

found that she had not demonstrated an inability to pay her own 

attorney's fees and costs. According to the court's findings, 

Dorothy had sufficient income and assets from which to pay her own 

attorney' s fees, including the proceeds of her cattle sale, "loansf' 

or gifts from her father, jewelry and other personal property. The 

court also found that she had not established the amount and 

reasonableness of her attorney's fees and costs. 

We conclude that the District Court did not err or abuse its 

discretion in declining to award attorney's fees and costs to 

Dorothy. 

AT f irmed. 
We concur: