No. 80-20 INTHE SUPREME COURT OF THE STATE OF MONTANA 

### 1980

IN RE THE MARRIAGE OF WARREN KIRK HARRIS, Petitioner and Appell-ant,

DELLA MAE STROTHMAN HARRIS, Respondent and Respondent.

Appeal from: DistrictCourt

### c1fthe Ej-ght~eenth Judicial District, 

### In and for theCounty 

### of Gallatin, The RonorableW. 

### FJ. Lessley, Judge presiding. Counsel of Record: 

### For Ap;.jellant: Morrclw, Sedivy, Olson 

### s. Scully

## , Bozeman, 

### Montana For Respondent: Bolkova.tz, Romine & 

### John F. Bell, Helen&, Montana

Filed: 

### - Submit-ted

### on briefs: Auyust 14, 1980 Decided: 

## SLP

## 2

## 5198fl

Clerk

### Mr. Justice John Conway Harrison delivered the Opinion of the Court

# .

Warren Kirk Harris appeals the decision of the District Court of the Eighteenth Judicial District, Gallatin County, awarding property to his wife, Della Mae Harris,upon a finding that their property settlement agreementwas deficient. On January 26, 1978,petitioner filed an action for dissolution of the marriage. The matter came before the HonorableW. W. Lessley, presiding without a jury, and was completed on December 4, 1978. The following day, the parties executed and signed a settlement agreement disposing of the marital property. The agreementwas approved by the District Court and incorporated into the decree of legal separation entered on December 19, 1978. The decree of legal separationwas converted into a decree of dissolution on June 27, 1979. Husband petitioned the District Court for enforcement of the settlementagreement. At the conclusion of a July 3rd hearing, the District Court entered findings of fact and conclusions of law to the effect that the agreementwas deficient in two items of personal property, which the court subsequently granted to the wife. After denial of petitioner's motion to amend the findings, or in the alternative to grant a new trial, the husband appealed to this Court. We affirm. The parties were married in Bozeman, Montana, on July 4, 1975. After serious marital problems developed between them, the Harrises executed the December 5th settlement agreement. By the terms of that agreement, the wife

was deeded property near Flathead Lake and a residence in Missoula. She was to continue as co-owner with her husband of commercial real estate being leased to her husband's

### business. Further, she was directed by the agreement to sign a six-year leaseof the real property to the business for $40,000 with the stock tobe placed inescrow. In his petition for enforcement of the agreement, the husband alleged thathis

### wife had failed to honor the 

### terms of their agreement by failing to sign the 

### lease for the real property, that she had failed todirect the bank 

### as to the disposition of the rental income, and that she had failed to complete the conveyance of her stock in the business operated by her husband. At

### the hearing on the petition toenforce the settlement agreement, the wife testified that she had refused to complete her obligations under the agreement because itwas obvious toher thather husband, contrary to prior understanding and oral representations, was no longer going toprovide her with an automobile and medical insurance coverage. She testified that therewas confusion as towhat infactwas agreed tounder the agreement. The District 

### Court concluded that the agreement was deficient as to the automobile and the insurance, and directed the husband to furnish the additional items. Petitioner offers the following issues for our 

### review:

### 1. Was Mrs. Harris' request for additionalproperty made orally to the court, over sixmonths after entry of the legal separation decree and approval of the written agreement, barred by Rule 

### 60(b)

## ,M.R.Civ.P. 2. 

### Was an earlier finding of the court, as to the conscionabilityof the agreement, 

# - res judicata as to the subsequent requests of thewife. 3. 

### Did the District

### Court err inconsidering allegations of an oral agreement made simultaneouslywith thewritten property settlement agreement? 4. Was there sufficient evidence of the oral agreement

as toprovision for the automobile and medical insurance to support the DistrictCourt's findings? 5. Did the DistrictCourt err inmaking the grant of personal property, inaddition to the terms of the agreement, without making required findings of fact, such as the net worth of the parties, asrequired by section 40-4-202, MCA?

Rule 60(b) of the Montana Rules of Civil Procedure 

### recites inapplicable part: "On motion and upon such terms as arejust, the courtmay relieve a party or his legal representative from 

### a finaljudgment, order, or proceeding for the following reasons:



### "(6) any other reason justifying relief from the operation of the judgment.

### " The DistrictCourt record discloses that the husband made

no objection atthe enforcement hearing to the timeliness of hiswife's requests. Although 

### we recognize that theremay have been a crucial issue atthe trial court, the husband's failure to objectmakes timeliness a nonjudiciable issue on appeal. The reason for this

### isclear. The trialcourtdid not have its attentiondrawn to the objection to which 

### we are

now directed. If the wife's requests were inappropriately made to the DistrictCourt, it

### is the obligation of opposing counsel toilluminate the impropriety by making an express objection to it so that the judge may resolve the issue. Error of thiskind must be raised atthe DistrictCourt level and may not be urged upon this Court for the first

### timeon appeal. Kearnes v. McIntyre Construction Co. (1977), 173 Mont. 239, 567 P.2d 433; Pickett

### v. Kyger (1968), 151Mont. 87, 439 P.2d 57. See also Bower v. Tebbs (1957), 132Mont.146, 314 P.2d 731. Without an objection there need be no ruling, and without a ruling this Courtmust conclude that thewifemade her requests within the "reasonable 

### time" required by Rule 6O(b), M.R.Civ.P. The DistrictCourt below acknowledged in

### its decree of legal separation, dated December 19, 1978, that the settlement agreement executed by the parties and incorporated into the decree

### was conscionable and should be approved. The husband now asks this Court to find that the District Court's finding 

### as toconscionabilityof the Harris' 

### settlement agreement 

### isres judicata as to the issue of their marital agreement, thus barring any further requests by the wife. Wedo not come to thatconclusion. InBrannon v. Lewis and Clark County (1963), 143Mont. 200, 387 P.2d 706, citing the rule of Stateex 

### rel. Sullivan

v. School DistrictNo. 1 (1935), 100Mont. 468, 50 P.2d 252,



### we established four criteriawhich must be established before

a plea of 

### res judicata can be sustained. The parties must be the same or inprivity the issues must be the same, the subjectmatter of the actionmust be the same, and the relationship of the parties to the subjectmatter must be the

same. Brannon concludes, asdo

### we, that themost important of these criteria 

### is thatof the identity of issue. In this case there 

### is sufficientdissimilarity 

### as to the issues involved tomake the doctrine of 

### res judicata inapplicable. The DistrictCourt's finding was that the agreement executed by thepartieswas not unconscionable, not that it

was necessarily complete. The agreement disposed of the Harris' marital property butmade no provision for any future support. The property disposition has no directbearing on any contemporary agreement for obligations tobe fulfilledin

### the future- Therefore, this Court must conclude that there isno identity of issues and thatres judicata does not bar 

### - further action on any alleged agreements between the parties

as tomatters not involving thedisposition of marital property.Petitioner further asserts that the DistrictCourt erred inconsidering evidence of an oral agreement made simultaneously with the written settlement agreement. However, the record discloses that the husband made no objection during trial courtproceedings tohis wife's testimony about the automobile and the insurance. Once again, we must conclude that although theremay have been a critical issue

asto the admissibility of such evidence below, the husband's failuretoraise the issueof par01 evidence atthe District Court forfeited any right toa remedy on appeal. Kearnes v. McIntyre Construction Co., supra. See alsoMassey-Ferguson Credit Corp. v. Brown (1976), 169 Mont. 396, 401, 547 P.2d 846. It

### is the petitioner's position that there 

### is insufficientevidence to support a finding that an oral agreement existed between the parties. In the resolution of this issue, 

### we areguided by a number of well-established principles adhered toby this Court. The credibility of 

### witnesses and theweight tobe given their testimony arematters which 

### are exclusively the province of the DistrictCourt ina nonjury case. Corscadden v. Kenney (1977), 175Mont. 98, 572 P.2d 1234. Inexamining the sufficiency of the evidence 

### we review the same ina lightmost favorable to the prevailing party, and 

### we further presume the findings of factand conclusions of law of the District Court tobe correct, ~ock Springs Corp. v. Pierre (1980), Mont. P.

### 2d -1 

### - I37 St.~ep.1378, 1384. Only if our review discloses a decided preponderance of evidence contrary to the findings and conclusions of the DistrictCourt, 

### willwe disturb the judgment of the DistrictCourt. Morgan and Oswood Const. Co. v. Big Sky of Montana (1976), 171Mont. 268, 275, 557 P.2d 1017, 1021. In the case atbar, 

### we conclude that there 

### isno preponderance of evidence contrary to the findings of the trial court. The only evidence thatan oral agreement did not existwas the husband's denial that such an agreement was made. However, the husband did place a car athis wife's disposal for severalmonths after their separation which could properly be interpreted asan action infurtherance of his obligations under the oral contract. We 

### willnot decide whether or not the DistrictCourt was correct in

### its assessment of the evidence before 

### it,but we do find that the evidence was sufficient to support differing conclusions, and

we areconstrained to honor the judgment of the District Court

# . Accordingly, 

### we can also conclude that the findings of the DistrictCourt were based on sufficient evidence so as to properly support the court's judgment. Petitioner finallycontends that the DistrictCourt erred inmaking an "equitable" grant of personal property without making certain findings, such as the networth of the estate, asrequired under section 40-4-202, MCA. Wedisagree. This Court has held that 

### a District Court need not 

### set forthwith particularity its findings if there 

### is substantial evidence that the courtwas aware of and considered the directive items of section 40-4-202, MCA. The husband specifically mentions the net worth of the marital estate. As this Court found inMaberry v. Maberry (1979), Mont. - 

## , 598 P.2d

### "There isno evidence in the record that the trial court did not establish the networth of the marital estateprior togranting maintenance to the petitioner

# ." The courtbelow held a hearing on allelements inmarital estate, and there 

### isno substantial evidence the court did not consider the whole of the marital estate infinding that the separation agreement was deficient. Mcreover, as

### we found in InRe the Marriage of Miller

### (Ch.u=~No. 80-71, Decided August 27, 1980), the existence of a valid agreement presumes that the networth of theparties has been considered by the parties as to the property disposed of by the agreement. In the case before us there is substantial evidence that the networth of the parties was established by the District Court and by the settlement agreement executed by 

### the parties. This Court willnot disturb the conclusion of the lower court absent a clear abuse of discretionby which the trial judge acted arbitrarilywithout the employment of conscious judgment or exceeded the bounds of reason. InRe 

### theMarriage of Fredericksen (1980), 

### -Mont. 

## , -P.2d 

## , 37 St.Rep. 191, 192. 

### Although we recognize that the procedure by which the wife's requestwas granted 

### was irregular and procedurally infirm, we cannot go so far as to conclude that the District Court acted without "the employment of conscious reason" or "exceeded thebounds of reason." Accordingly, 

### we affir

\



# hV& & JusticesMr. Chief Justice Frank I.Haswell dissenting: Idissent. The majority decision inthis case paves the way for disgruntled spouses to come into court at any time for a review of their written property settlement agreements. Not only does this violate settled contract law, but it circumvents the purposes of the UniformMarriage and Divorce Act as adopted inthis state. Section 40-4-201(1), MCA provides the procedure by which parties to a marriage can enter into a written agreement setting forth their respective rights and obligations upon termination of their marriage: "Separation agreement. 

### (1) To promote amicable settlement of dis~utes between ~arties toa marriage attendant'upon their separation or the dissolution of their marriage, the parties may enter into a written separation agreement containing provisions for disposition of any property owned by either of them, maintenance of either of them, and support, custody, and visitation of their children." This agreement is binding upon the court, unless the court finds it to be unconscionable: "(2) Ina proceeding for dissolution of marriage or for legal separation, the terms of the separation agreement, except those providing for the support, custody, and visitation of children, are binding upon the court unless it finds, after considering the economiccircumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the separation agreement is unconscionable." Section 40-4-201

### (2), MCA. The district judge, inentering the decree of legal separation of December 19, 1978, made several findings with respect to the parties' written property settlement agreement: "2. That the Property Settlement Agreement of the parties, dated December 5, 1978, ismade a part of this Decree."

"6. That said Property Settlement Agreement is not unconscionable."Once such findings are entered by the District Court, the UMDA further provides that "[tlerms of the agreement 

# ... are enforceable

# . . . as contract terms." Section40-4-201(5), MCA. In enforcing property settlements as contractual agreements, this Court has consistently re1

### ied on Montana contract law to find that a written instrument supersedes all oral negotiations which occurred prior to or simultaneously with the execution of the written agreement. Section28-2-904, MCA; Merritt v. Merritt (1974), 165 Mont. 172, 178, 526 P.2d 1375, 1379. Both parties to this action admit to extensive negotiations and discussions prior to signing this agreement. Mrs. Harris acknowledged incourt that 

### "

# .. . for a whole year we discussed inmany ways [sic] of settlement. Every time he decided to divorce me again, we would come up with another type of settlement." Finally, on December 5, 1978, the parties did sign a written settlement agreement, disposing of their real and personal property. At that point intime they fixed their rights and obligations with respect to their property, Miller v. Miller (1980)

## , Mont.-9 

### - P.2d 

## , 37 St.Rep. 1523, 1526, and their prior discussions about disposition of their property were 2. no longer determinative. Section28-X-904, MCA. The district judge made no factual finding that the parties had entered into a separate enforceable oral agreement. Rather, he concluded that the property settlement finalized the parties' property disputes and was a complete and final property agreement except that it was deficient with respect to insurance and the car. There were no allegations of, or findings of, fraud, mistake or overreaching, nor was any reason given to explain why these items were not included inthe agreement. Yet the District Court and this Court are prepared to rewrite this written property agreement, signed voluntarily by both parties, and inthe presence of their own attorneys.



# -10-The majority characterizes the car and the insurance as matters which would not necessarily be covered by the property settlement agreement, but rather as items of "future support" that could be the subject of a separate agreement. Yet there was no factual finding of a separate support agreement, and infact, the district judge implicitly noted inhis findings that these two items were merely omissions from the property settlement, and inawarding these to Mrs. Harris, the district judge found that the same consideration supported the award of these items as supported the other property distributed to her. Ido not dispute the power of the District Court judges 

### in Montana to modify a property settlement. Section40-4-208 (3) provides:"(3) The provisions as to property disposition may not be revoked or modified by a court, except: "(a) upon written consent of the parties; or "(b) 

### ifthe court finds the existence of conditions that justify the reopening of a judgment under the laws of this state. But there was no finding made by the district judge which justifies the reopening of this judgment. There was no finding of fraud, mistake, misrepresentation, or any other condition which allows the rescission or modification of a contract. This contract was modified only because the court found it to be "inequitable," despite the 'er finding that the agreement was not It is unfortunate 

### if one party to an agreement neglects to include terms which in retrospect that spouse feels should have been included. But this is no reason to overturn the ageold law of contracts, which seeks to preserve the sanctity of a written agreement, and allows parties to it to be apprised of their rights and obligations under that agreement.

\ Chief Justice