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: 

## FEBf

## 19994 Decided: February 11, 1994Justice Terry N. Trieweiler delivered the opinion of the Court. In 

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

### I), we vacated that portion of theparties' dissolution decree which incorporated a marital and property settlement agreement and remanded with instructions that the District Court make findings regardingthe 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 DistrictCourt'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 continuanceto allow further investigationof 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 inAugust 1990which was later incorporated in their petition for legal separation. TheDistrict 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 thedecree of legal separationto a finaldecree 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 fromAugust 1990. Lauri appealedwith 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, Laurimoved the District Court to continue the trial based on a delay in transcribing Bill's deposition and theneed for further information from Bill regarding his real estateholdings. 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 regardinghis role as Lauri's attorney atthe 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 findingsof fact,conclusionsof law, and order on May 19, 1993, in which it held that the marital and property settlement agreement executed onAugust 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 themarital 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 conclusionof law. Thesediscretionary judgmentsmade 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

(quotingInreMam'ageofDanelson (1992), 253 Mont. 310, 317, 833 P.2dBill contends thatwhere theparties 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 visitationof children, arebindinsupon the court unless it finds,after consideringtheeconomic circumstancesof the parties and any other relevant evidence produced by the parties 

# . . . that the se~arationaareement is unconscionable. [Emphasisadded]. 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 "outlinedMthe testimony of three witnesses who gave three differentvaluations. In CarasI, 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 districtcourt commitsreversible errorby failing tomake findings pursuant to 3 40-4-202, MCA, when it has before it a separation agreement which distributesmarital 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. SeeIn re Mam'ageofSirucek (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 isa signedand executed separation agreement, we must conclude that the parties themselveshave alreadymade a determinationof theirnet worth as a basis for their decision. Miller, 616 P.2d at 318. nl[W]ewill 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 DistrictCourt receivedvarious estimates of the net value of the Caras estate. Laurinsfirst attorney valued the marital estate at $530,000. Bill offered an exhibit valuing the estate as of August 1990 at $290,508. Laurinsestimate of the estate as of August 1990 was $939,502. A financial statement signed by Bill in October 1991, which was introduced by bothparties, indicated that Bill's net worth was $1,075,200. Bill introduced testimony that this amount had been overstated. Apparently, there were no professional appraisalsconducted on any component of themarital estate. Presentedwith these various opinions,the District Court concludedthattheparties*agreement, when taken in its entirety, includingthedistributionof property,thepayment of maintenance in lieuof property, the waiver of obligations for child support and medical care, the associated provisions for support of both [Lauri] and the parties1children,and after considering the economic circumstances of the parties at the time of execution of theparties1marital andproperty settlement agreement,aswell as their current circumstances,isnot 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-CountyPlumbing &Heating,Znc. v.LeveeRestorations (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 partnershipwithhisbrother and sister,contributedtothe court's failure to accurately determine the value of tne marital estate. At trial, Laurilscounsel 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 themarital assets at the time the settlement agreementwas signed. Additionally, we note Laurilstestimony 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 inreMam'age ofHill (1982), 197 Mont. 451, 643 P.2d 582, where this Court allowed the wife to pursue examination of adisputed piece of property since it had reversed and remanded the case for further proceedings to reconsider the marital estate assets. However, reference to

### Hill mere1y underscores the Ifsecond chancel1this 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 requiredby 5 25-4-501, MCA. 

### Inre 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 withdiscovery rules is abuse of discretion. "The District Court has inherent discretionarypower to control discovery and that power is based upon the District Court's authority to control trial administration.

## " State

### exrel.GuaranteeZnswanceCo.

### v.Dkm'ctCourtoftheEighth 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, Laurilscounsel filed a motion to compel Bill to list all JKW Investmentproperties, 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-relatedmotions were not fileduntil 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 canbe resolvedby 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 actionbe 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[elach 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. 

### InreMam'age0fBuni.s (1993)

### , 258Mont. 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 tobe conscionable, isbound by its terms. Lauri's appeal to the Supreme Court was an nraction to enforce, modify, or interpret" the agreement. We, therefore,

reverse the DistrictCourt's conclusion that each party shouldbear his and her own costs and remand for a determinationof reasonable attorney fees to be awarded Bill. 11The 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 CERTIFICATEOFSERVICE I hereby certifythat the followingorderwas sentbyUnited Statesmail,prepaid,tothefollowing named:

NoelK. Larrivee LARRIVEELAWOFFICES 334EastBroadway Missoula, MT 59802 RichardRanney WILLIAMS&RANNEY, P.C. P. 0.Box9440 Missoula. MT59807

RichardA. Reep REEP, SPOON&GORDON, P.C. P.O. Box 9019 Missoula,MT 59807-9019

ED SMITH CLERKOFTHESUPREME COURT STATEOFMONTANA