No. 93-424 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

IN RE THE MARRIAGE OF 

WILLIAM RICHARD CARAS, 

Petitioner, Respondent, 

and Cross-Appellant, 

and 

LAURI CHRISTINE CARAS, 

Respondent, Appellant, 

and Cross-Respondent. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Ed McLean, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Noel K. Larrivee, Larrivee Law Offices, 

Missoula, Montana 

Richard Ranney, Williams & Ranney, 

Missoula, Montana 

For Respondent: 

Richard A. Reep, Reep, Spoon & Gordon, 

Missoula, Montana 

, Submitted on Briefs: December 22, 1993 

Filed: FEB f 1 9994 

Decided: February 11, 1994 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

In In re Marriage of Caras (l992), 254 Mont. 169, 835 P. 2d 715 

(Caras I), we vacated that portion of the parties' dissolution decree 

which incorporated a marital and property settlement agreement and 

remanded with instructions that the District Court make findings 

regarding the conscionability of the agreement. The District Court 

for the Fourth Judicial District in Missoula County found that the 

agreement was conscionable. Lauri now appeals the findings, 

conclusions, and order of the District Court regarding that 

agreement. Bill cross-appeals the District Court's order regarding 

attorney fees and costs. We affirm in part and reverse in part. 

The parties have raised the following issues: 

1. Did the District Court err when it concluded that the 

marital and property settlement agreement was conscionable? 

2. Did the District Court abuse its discretion when it 

failed to grant a continuance to allow further investigation of the 

marital estate? 

3. Did the District Court abuse its discretion when it 

failed to rule on motions filed during trial? 

4. Did the District Court err when it ordered each party to 

pay his and her own attorney fees and costs? 

William Richard Caras and Lauri Christine Caras signed a 

property and marital settlement agreement in August 1990 which was 

later incorporated in their petition for legal separation. The 
District Court granted their separation and approved their 

settlement agreement on October 11, 1990. 

On May 21, 1991, the District Court granted Bill's motion to 

convert the legal separation to a final decree of dissolution. 

Lauri was successful in her effort to have that decree set aside, 

however, she did not respond when Bill filed a motion to convert 

the decree of legal separation to a final decree of dissolution for 

a second time. On November 22, 1991, the District Court entered 

the final dissolution decree which incorporated the parties' 

marital and property settlement agreement from August 1990. Lauri 

appealed with new counsel of record and we remanded to the District 

Court. 

After this Court's decision and denial of Bill's petition for 

rehearing Caras1 on August 25, 1992, the parties began a course of 

written discovery which included the exchange of interrogatories 

and Bill's deposition. On January 25, 1993, the District Court, at 

Bill's request, set the matter for a nonjury hearing on its March 

calendar. Three days before trial, Lauri moved the District Court 

to continue the trial based on a delay in transcribing Bill's 

deposition and the need for further information from Bill regarding 

his real estate holdings. The District Court denied Lauri's motion 

and the trial was held on March 11 and 25, 1993. 

At trial, the attorney who had represented Lauri in the 

preparation of the marital and property settlement agreement was 

called by Bill to testify regarding his role as Lauri's attorney at 
the beginning of the dissolution. The only other witnesses who 

were called to testify were Lauri and Bill. 

During the court's recess, Lauri moved the District Court to 

compel Bill to provide more complete information regarding certain 

investment property. In response to this motion, Bill filed a 

motion to protect him from further discovery pursuant to 

Rule 26(c), M.R.Civ.P. The District Court did not rule on these 

motions and the trial proceeded to its conclusion. 

The District Court issued its findings of fact, conclusions of 

law, and order on May 19, 1993, in which it held that the marital 

and property settlement agreement executed on August 17, 1990, was 

not unconscionable and should be adopted by the court and 

incorporated in the final decree of dissolution. 

ISSUE 1 

Did the District Court err when it concluded that the marital 

and property settlement agreement was conscionable? 

When it determines the conscionability of a marital and 

property settlement agreement, a district court 

engage[s] in discretionary action which cannot be 

accurately categorized as either a finding of fact or a 

conclusion of law. These discretionary judgments made by 

the trial court are presumed to be correct and will not 

be disturbed by this Court absent an abuse of discretion 

by the lower court. 

InreMam'ageofHamilton (1992), 254 Mont. 31, 36, 835 P.2d 702, 704-05 

(quoting InreMam'ageofDanelson (1992), 253 Mont. 310, 317, 833 P.2d 
Bill contends that where the parties have agreed to a property 

distribution pursuant to a separation agreement, the controlling 

statute is 5 40-4-201(2), MCA, and not, as Lauri suggests, the 

"equitable apportionment" statute at 5 40-4-202, MCA. Section 

40-4-201(2), MCA, provides that: 

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 bindins upon the court unless 

it finds, after considering the economic circumstances of 

the parties and any other relevant evidence produced by 

the parties . . . that the se~aration aareement is 

unconscionable. [Emphasis added]. 

Lauri asserts that she is not advocating a strict application 

of 5 40-4-202, MCA; she advocates its application only to the 

extent that its various factors would aid the court in making a 

determination of conscionability. In particular, she argues that 

without determining the net value of the marital estate, it was 

impossible for the District Court to make a finding of 

conscionability. She argues that the District Court failed to find 

a specific value for the marital estate and merely "outlinedM the 

testimony of three witnesses who gave three different valuations. 

In Caras I, Lauri successfully persuaded this Court that her 

misunderstanding of the final nature of the separation agreement, 

her hope of reconciliation of the marriage, and the length of time 

between the execution of the agreement and its incorporation in a 

decree of dissolution suggested that the agreement may have been 

unconscionable. CarasI, 835 P.2d at 716-17. However, the language 

in that opinion should not be construed to mean that a district 
court commits reversible error by failing to make findings pursuant 

to 3 40-4-202, MCA, when it has before it a separation agreement 

which distributes marital property. To the extent that language in 

that decision suggests a contrary conclusion, it is overruled. The 

factors set forth in 9 40-4-202, MCA, must be considered by the 

district court when dividing the marital estate absent a marital 

and property settlement agreement between the parties. See In re 

Mam'age of Sirucek (l985), 219 Mont. 334, 341-42, 712 P.2d 769, 773. 

Where the parties have reached a separation agreement, a 

determination of net worth of the marital estate is not required. 

InreMam'ageofMiller (1980), 189 Mont. 356, 616 P.2d 313; seealso,Znre 

Mam'ageofEvert (1982), 198 Mont. 191, 645 P.2d 417. In Miller, we 

stated that: 

[Tlhe net worth of the parties is a necessary 

consideration; however, if there is a signed and executed 

separation agreement, we must conclude that the parties 

themselves have already made a determination of their net 

worth as a basis for their decision. 

Miller, 616 P.2d at 318. nl[W]e will not substitute our conclusions 

for those of the District Court in the absence of clear and 

reversible error. In Miller 616 P.2d at 318. 

At trial, the District Court received various estimates of the 

net value of the Caras estate. Laurins first attorney valued the 

marital estate at $530,000. Bill offered an exhibit valuing the 

estate as of August 1990 at $290,508. Laurins estimate of the 

estate as of August 1990 was $939,502. A financial statement 

signed by Bill in October 1991, which was introduced by both 
parties, indicated that Bill's net worth was $1,075,200. Bill 

introduced testimony that this amount had been overstated. 

Apparently, there were no professional appraisals conducted on 

any component of the marital estate. Presented with these various 

opinions, the District Court concludedthat the parties* agreement, 

when taken in its entirety, including the distribution of 

property, the payment of maintenance in lieu of property, 

the waiver of obligations for child support and medical 

care, the associated provisions for support of both 

[Lauri] and the parties1 children, and after considering 

the economic circumstances of the parties at the time of 

execution of the parties1 marital and property settlement 

agreement, as well as their current circumstances, is not 

unconscionable and should be adopted by this court. 

After a review of the record, we conclude that the District 

Court's findings in support of its decision are supported by 

substantial evidence, are not clearly erroneous, and that the 

District Court did not abuse its discretion when it held that the 

parties' marital and property settlement agreement was 

conscionable. 

ISSUE 2 

Did the District Court abuse its discretion when it failed to 

grant a continuance to allow further investigation of the marital 

estate? 

We will review a district court's decision to grant or deny a 

motion for a continuance for abuse of discretion. 

[Alny motion for a continuance of trial is within the 

sound discretion of the District Court . . . [and we] 

will not overrule a District Court's decision to deny a 

motion for a continuance of trial unless there is "an 

affirmative showing that the complaining party has 

suffered prejudice." 
M-County Plumbing & Heating, Znc. v. Levee Restorations ( 1986) , 2 2 1 Mont . 403 , 

408, 720 P.2d 247, 250. 

Lauri further argues that Bill's failure to disclose the 

existence and value of property he held in JKW Investments, a 

partnership with his brother and sister, contributedto the court's 

failure to accurately determine the value of tne marital estate. 

At trial, Laurils counsel requested a continuance to allow time to 

transcribe Bill's deposition taken February 22, 1993, and to allow 

Lauri additional time to investigate JKW property. However, the 

District Court denied the continuance and noted that Bill's 

deposition had not been scheduled until the trial had been placed 

on the calendar, that more than eight months had passed since 

remand, and that if the case were continued, it could not be 

rescheduled for another six months. 

Bill asserts that in his answers to Lauri's interrogatories 

dated October 23, 1992, he identified JKW Investments as a 

partnership. Lauri's former attorney testified that the parties 

had indicated that there was full and accurate disclosure of all 

the marital assets at the time the settlement agreement was signed. 

Additionally, we note Laurils testimony that during the marriage 

she had knowledge of the partnership's existence. 

In support of her argument that the District Court abused its 

discretion when it denied a continuance, Lauri cites our prior 

decision in in re Mam'age of Hill (1982), 197 Mont. 451, 643 P.2d 582, 

where this Court allowed the wife to pursue examination of a 
disputed piece of property since it had reversed and remanded the 

case for further proceedings to reconsider the marital estate 

assets. However, reference to Hill mere1 y underscores the If second 

chancel1 this Court gave Lauri in Caras I. 

Section 25-4-501, MCA, states that "[a] motion to postpone a 

trial on grounds of the absence of evidence shall only be made upon 

affidavit showing the materiality of the evidence expected to be 

obtained and that due diligence has been used to procure it." 

Lauri did not file any affidavit or brief when she requested the 

continuance. Nor has Lauri asserted how she was prejudiced by the 

failure of the court to continue the trial. 

It is not an abuse of discretion for a district court to deny 

postponing a trial where no affidavit has been filed as required by 

5 25-4-501, MCA. In re T.M.M. (1988), 234 Mont. 283, 289, 762 P.2d 

866, 869-70; Statev. P~cg0 (l977), 173 Mont. 121, 566 P.2d 802. We 

conclude that Lauri had ample opportunity to formally pursue 

discovery or to undertake her own independent investigation of the 

extent of and value of property held by Bill and JKW Investments 

and that the District Court did not abuse its discretion when it 

denied her motion to postpone the trial. 

ISSUE 3 

Did the District Court abuse its discretion when it failed to 

rule on motions filed during trial? 

Our standard of review from orders granting or denying 

discovery and imposing sanctions for failure to comply with 
discovery rules is abuse of discretion. "The District Court has 

inherent discretionary power to control discovery and that power is 

based upon the District Court's authority to control trial 

administration. " State ex rel. Guarantee Znswance Co. v. Dkm'ct Court of the Eighth 

JudicialDist. (l98l), 194 Mont. 64, 67, 68, 634 P.2d 648, 650. Seeako, 

Marriage ofJacobson (1987), 228 Mont. 458, 743 P.2d 1025; Massaro v. 

Dunham (l979), 184 Mont. 400, 603 P.2d 249. 

After the trial commenced, Laurils counsel filed a motion to 

compel Bill to list all JKW Investment properties, their value, and 

indebtedness; a motion for the District Court to reconsider 

sanctions; and a motion for determination of attorney fees. Bill's 

counsel filed a motion for a protective order in response to 

Lauri's motion to compel. The District Court did not rule on any 

of these motions. Therefore, they are deemed denied. 

In this case, Lauri had eight months from the date of remand 

to the date of trial. Yet, her discovery-related motions were not 

filed until after trial began. She explains that because discovery 

was completed so close to trial that her motions were timely. 

However, parties have an obligation to complete discovery far 

enough in advance of trial that discovery issues can be resolved by 

the district court before trial begins. Where they have not done 

so, and absent aggravating circumstances (which are not shown in 

this case) we will not find an abuse of discretion from the 

district court's failure to consider discovery related motions 

after trial has begun. 
The District Court's denial of Lauri's motions is affirmed. 

ISSUE 4 

Did the District Court err when it ordered each party to pay 

his and her own attorney fees and costs? 

Bill argues that the language of the marital and property 

settlement agreement forecloses the District Court's exercise of 

discretion on this issue and that, as the prevailing party, he is 

entitled to reasonable attorney fees and costs. The agreement 

provided that, "[s]hould any action be commenced to enforce, modify 

or interpret any provision contained herein, the court, as a cost 

of suit, shall award a reasonable attorney's fee to the successful 

party. " The District Court found that 'I [el ach party should bear 

their [sic] own costs and attorney's fees in this matter as the 

waters were so muddy that further court action was necessary to 

examine the conscionability of the agreement." 

Generally, it is within the district court's discretion to 

award attorney fees. Such awards are subject to an abuse of 

discretion standard of review. In re Mam'age 0fBuni.s (1993) , 258 Mont. 

265, 272, 852 P.2d 616, 620. Here, however, the language of the 

marital and property settlement agreement is clear, and the 

District Court, having found it to be conscionable, is bound by its 

terms. Lauri's appeal to the Supreme Court was an nraction to 

enforce, modify, or interpret" the agreement. We, therefore, 

reverse the District Court's conclusion that each party should bear 

his and her own costs and remand for a determination of reasonable 

attorney fees to be awarded Bill. 

11 
The judgment of the District Court is affirmed in part, 

reversed in part, and remanded for further proceedings consistent 

with this opinion. 

We concur: 
February 11, 1994 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Noel K. Larrivee 

LARRIVEE LAW OFFICES 

334 East Broadway 

Missoula, MT 59802 

Richard Ranney 

WILLIAMS & RANNEY, P.C. 

P. 0. Box 9440 

Missoula. MT 59807 

Richard A. Reep 

REEP, SPOON & GORDON, P.C. 

P.O. Box 9019 

Missoula, MT 59807-9019 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATEOF MONTANA