No. 80-20 

IN THE 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: District Court c1f the Ej-ght~eenth Judicial District, 

In and for the County of Gallatin, 

The Ronorable W. 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: 

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Submit-ted on briefs: Auyust 14, 1980 

Decided : SLP 2 5 198fl 

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 agreement was deficient. 

On January 26, 1978, petitioner filed an action 

for dissolution of the marriage. The matter came before the 

Honorable W. 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 agreement was approved by the District Court and incorporated into the decree of legal separation entered on December 19, 1978. The decree of legal 

separation was converted into a decree of dissolution on 

June 27, 1979. Husband petitioned the District Court for 

enforcement of the settlement agreement. 

At the conclusion of a July 3rd hearing, the District 

Court entered findings of fact and conclusions of law to the 

effect that the agreement was 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 lease of the real property to the business 

for $40,000 with the stock to be placed in escrow. 

In his petition for enforcement of the agreement, the 

husband alleged that his wife had failed to honor the terms 

of their agreement by failing to sign the lease for the real 

property, that she had failed to direct 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 to enforce 

the settlement agreement, the wife testified that she had 

refused to complete her obligations under the agreement because it was obvious to her that her husband, contrary to 

prior understanding and oral representations, was no longer 

going to provide her with an automobile and medical insurance 

coverage. She testified that there was confusion as to what 

in fact was agreed to under 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 additional property 

made orally to the court, over six months 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 

conscionability of the agreement, - res judicata as to the 

subsequent requests of the wife. 

3. Did the District Court err in considering allegations of an oral agreement made simultaneously with the 
written property settlement agreement? 

4. Was there sufficient evidence of the oral agreement 

as to provision for the automobile and medical insurance to 

support the District Court's findings? 

5. Did the District Court err in making the grant of 

personal property, in addition to the terms of the agreement, 

without making required findings of fact, such as the net 

worth of the parties, as required by section 40-4-202, MCA? 

Rule 60(b) of the Montana Rules of Civil Procedure recites in applicable part: 

"On motion and upon such terms as are just, 

the court may relieve a party or his legal 

representative from a final judgment, order, 

or proceeding for the following reasons: 

" (6) any other reason justifying relief from 

the opera tion of the judgment. " 

The District Court record discloses that the husband made 

no objection at the enforcement hearing to the timeliness of 

his wife's requests. Although we recognize that there may 

have been a crucial issue at the trial court, the husband's 

failure to object makes timeliness a nonjudiciable issue on 

appeal. The reason for this is clear. The trial court did 

not have its attention drawn to the objection to which we are 

now directed. If the wife's requests were inappropriately 

made to the District Court, it is the obligation of opposing 

counsel to illuminate the impropriety by making an express 

objection to it so that the judge may resolve the issue. 

Error of this kind must be raised at the District Court level 

and may not be urged upon this Court for the first time on 

appeal. Kearnes v. McIntyre Construction Co. (1977), 173 

Mont. 239, 567 P.2d 433; Pickett v. Kyger (1968), 151 Mont. 

87, 439 P.2d 57. See also Bower v. Tebbs (1957), 132 Mont. 
146, 314 P.2d 731. Without an objection there need be no 

ruling, and without a ruling this Court must conclude that 

the wife made her requests within the "reasonable time" 

required by Rule 6O(b), M.R.Civ.P. 

The District Court 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 to conscionability of the Harris' settlement agreement is res judicata as to the issue of their 

marital agreement, thus barring any further requests by the 

wife. We do not come to that conclusion. 

In Brannon v. Lewis and Clark County (1963), 143 Mont. 

200, 387 P.2d 706, citing the rule of State ex rel. Sullivan 

v. School District No. 1 (1935), 100 Mont. 468, 50 P.2d 252, 

we established four criteria which must be established before 

a plea of res judicata can be sustained. The parties must be 

the same or in privity the issues must be the same, the 

subject matter of the action must be the same, and the relationship of the parties to the subject matter must be the 

same. Brannon concludes, as do we, that the most important 

of these criteria is that of the identity of issue. In 

this case there is sufficient dissimilarity as to the issues 

involved to make the doctrine of res judicata inapplicable. 

The District Court's finding was that the agreement 

executed by the parties was not unconscionable, not that it 

was necessarily complete. The agreement disposed of the 

Harris' marital property but made no provision for any future 

support. The property disposition has no direct bearing on 

any contemporary agreement for obligations to be fulfilled in 
the future- Therefore, this Court must conclude that there 

is no identity of issues and that 

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res judicata does not bar 

further action on any alleged agreements between the parties 

as to matters not involving the disposition of marital property. 

Petitioner further asserts that the District Court 

erred in considering evidence of an oral agreement made 

simultaneously with the written settlement agreement. 

However, the record discloses that the husband made no objection during trial court proceedings to his wife's testimony 

about the automobile and the insurance. Once again, we must 

conclude that although there may have been a critical issue 

as to the admissibility of such evidence below, the husband's 

failure to raise the issue of par01 evidence at the District 

Court forfeited any right to a remedy on appeal. Kearnes v. 

McIntyre Construction Co., supra. See also Massey-Ferguson 

Credit Corp. v. Brown (1976), 169 Mont. 396, 401, 547 P.2d 

846. 

It is the petitioner's position that there is insufficient evidence to support a finding that an oral agreement 

existed between the parties. In the resolution of this 

issue, we are guided by a number of well-established 

principles adhered to by this Court. The credibility of witnesses and the weight to be given their testimony are matters 

which are exclusively the province of the District Court in a 

nonjury case. Corscadden v. Kenney (1977), 175 Mont. 98, 572 

P.2d 1234. In examining the sufficiency of the evidence we 

review the same in a light most favorable to the prevailing 

party, and we further presume the findings of fact and conclusions of law of the District Court to be correct, ~ock 

Springs Corp. v. Pierre (1980), Mont. P. 2d -1 - I 
37 St.~ep. 1378, 1384. Only if our review discloses a decided 

preponderance of evidence contrary to the findings and conclusions of the District Court, will we disturb the judgment 

of the District Court. Morgan and Oswood Const. Co. v. Big Sky 

of Montana (1976), 171 Mont. 268, 275, 557 P.2d 1017, 1021. 

In the case at bar, we conclude that there is no preponderance of evidence contrary to the findings of the trial 

court. The only evidence that an oral agreement did not 

exist was the husband's denial that such an agreement was 

made. However, the husband did place a car at his wife's disposal for several months after their separation which could 

properly be interpreted as an action in furtherance of his 

obligations under the oral contract. We will not decide 

whether or not the District Court 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 are constrained to honor the judgment of the District 

Court . 

Accordingly, we can also conclude that the findings of 

the District Court were based on sufficient evidence so as to 

properly support the court's judgment. 

Petitioner finally contends that the District Court 

erred in making an "equitable" grant of personal property 

without making certain findings, such as the net worth of the 

estate, as required under section 40-4-202, MCA. We disagree. 

This Court has held that a District Court need not set 

forth with particularity its findings if there is substantial 

evidence that the court was 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 in Maberry v. Maberry (1979), Mont. - , 598 P.2d 
"There is no evidence in the record that the 

trial court did not establish the net worth 

of the marital estate prior to granting maintenance to the petitioner . " 

The court below held a hearing on all elements in marital 

estate, and there is no substantial evidence the court did not 

consider the whole of the marital estate in finding that the 

separation agreement was deficient. Mcreover, as we found in 

In Re the Marriage of Miller (Ch.u=~No. 80-71, Decided August 

27, 1980), the existence of a valid agreement presumes that 

the net worth of the parties 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 

net worth of the parties was established by the District 

Court and by the settlement agreement executed by the parties. 

This Court will not disturb the conclusion of the lower 

court absent a clear abuse of discretion by which the trial 

judge acted arbitrarily without the employment of conscious 

judgment or exceeded the bounds of reason. In Re the Marriage 

of Fredericksen (1980), - Mont. , - P.2d , 37 St.Rep. 

191, 192. Although we recognize that the procedure by which 

the wife's request was 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 the bounds of reason." 

Accordingly, we affir 

\ 

hV& & 

Justices 
Mr. Chief Justice Frank I. Haswell dissenting: 

I dissent. 

The majority decision in this 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 Uniform Marriage and Divorce Act as adopted in this 

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 di s~utes between ~arties 

to a marriage attendant' upon their separation 

or the dissolution of their marriage, the parties may enter into a written separation 

agreement containing provisions for di sposition 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) In a 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 economic circumstances 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, in entering 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, is made 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." Section 40-4-201(5), 

MCA. In enforcing property settlements as contractual 

agreements, this Court has consistently re1 i ed 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. Sect ion 28-2-904, 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 in court that " . . . for a whole year we 

discussed in many 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 in time 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. Sect ion 28-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 in the agreement. Yet the District 

Court and this Court are prepared to rewrite this written property 

agreement, signed voluntarily by both parties, and in the presence of their own attorneys. 

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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 in fact, 

the district judge implicitly noted in his findings that these 

two items were merely omissions from the property settlement, and 

in awarding 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. 

I do not dispute the power of the District Court judges 

i n Montana to modify a property settlement. Sect ion 40-4-208 (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) if the 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