                             NO.    95-370
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1995


IN RE THE MARRIAGE OF
KATHRYN MEWHINNEY,
a/k/a KATHRYN IDE,
           Plaintiff and Respondent,
     and




APPEAL FROM:    District Court of the Fourth Judicial District,
                In and for the County of Missoula,
                The Honorable John W. Larson, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
                Mark E. Jones, Attorney at Law, Missoula, Montana

           For Respondent:
                Dennis Lind; Datsopoulos, MacDonald & Lind,
                Missoula, Montana



                             Submitted on Eriefs:       November 30, 1995
                                             Decided:   December 12, 1995
Filed:
Justice W. William Leaphart delivered the Opinion of the Court.


     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1995 Internal Operating Rules, the following decision shall not be
cited as precedent and shall be published by its filing as a public
document with the Clerk of the Supreme Court and by a report of its
result to State Reporter and West Publishing Company.
     Thomas Lee Ide appeals from the May 8, 1995 Findings of Fact,
Conclusions of Law and Order of the Fourth Judicial District Court,
Missoula County, implementing the settlement agreement reached by
the parties.    We affirm.
     We consider the following issue on appeal:
     Did the District Court err in determining that the settlement
agreement executed by Thomas and Kathryn was a legally binding
contract?
     Thomas Lee Ide (Thomas) and Kathryn Mewhinney (Kathryn) began
their relationship in 1982.   Kathryn alleges that she and Thomas
entered into a common law marriage.     In September of 1994, Kathryn
filed a petition for dissolution of marriage.     In January of 1995,
Kathryn and Thomas negotiated and executed a settlement agreement.
On February 6, 1995, Thomas attempted to rescind and, later that
same day, to reinstate the agreement.    The agreement was signed by
both parties.    Shortly after the parties executed the agreement,
Thomas asserted that no common law marriage existed between them
and, thus, that no divisible marital estate existed and, therefore,
that the settlement agreement was unenforceable.
     Kathryn petitioned the District Court for an Order to Show

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Cause why the settlement agreement should not be enforced. A
hearing was held and, over Kathryn's objection, Thomas presented
evidence that no common law marriage existed between the parties.
At the hearing,     Kathryn presented her evidence supporting the
enforceability of the settlement agreement pursuant to her motion
to show cause.     The District Court concluded that the settlement
agreement was a valid and enforceable contract.       Thomas   appeals
from this determination.
      In determining whether the District Court was correct in
concluding that a valid and enforceable contract existed, we
determine whether the district court's interpretation of the law is
correct.     Kreger v. Francis (Mont. 19951, 898 P.2d 672, 674, 52
St.Rep.    493, 494; Steer, Inc. v. Department of Revenue (1990), 245
Mont. 470, 474-75, 803 P.2d 601, 603-04.    At the time the agreement
was executed, both Thomas and Kathryn were represented by counsel
and the fact that Thomas made revisions to the agreement indicates
that he had read the agreement.    In re Marriage of Woodford (1992),
254 Mont. 501, 839 P.2d 574.      The agreement signed by the parties
stated that:
      The parties hereto have had a long term relationship with
      each other which they now intend to terminate. No
      formalization of any marriage ever occurred between the
      parties, however, the parties acknowledge that this
      relationship may nonetheless have constituted a common
      law marriage and acknowledge that their relationship is
      irretrievably    broken    with   no   opportunity    for
      reconciliation. . . . Each of the parties hereto has
      entered   into negotiation    and preparation of this
      Agreement with full knowledge and understanding of its
      consequences,   and there have been no arrangements,
      understandings or connivance of any kind or character
      between the parties for the purpose of obtaining the
      consent of the other to this Agreement, and both of the
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        parties are fully confident that this Agreement has been
        made free from fraud or imposition, coercion or duress,
        and without unfair persuasion or domination of either of
        said parties by the other or by any other person.
        [Emphasis added.1
Thus,       the agreement recognizes that the question of whether a
common law marriage existed was disputable. However, regardless of
whether or not Thomas and Kathryn had a common law marriage, they
entered into a valid,                  binding,       and   enforceable   contract.   On

appeal,          however, Thomas argues that the fact that he and Kathryn
were not common law married allows him to disregard the agreement.
His earlier statements in the recitals of the agreement undermine
his position and show that the agreement was intended to be binding
on the parties and to resolve all issues between the parties
including the issue of whether there was a common law marriage.
        The parties              entered into a separation agreement,             which,
according             to § 40-4-201, MCA, is a binding and enforceable
contract.             Property settlement agreements are considered contracts
and,    therefore,              are to be construed according to the law of
contracts.                 Marriage of Woodford, 839 P.2d at 576.          Section 40-4-
201, MCA, provides in relevant part:

              (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.
        .    .    .    .

                      (5)     Terms of the agreement set forth in the decree
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        are enforceable by all remedies available for enforcement
        of a judgment, including contempt, and are enforceable as
        contract terms.
        The District Court found that the agreement entered into by
Thomas and Kathryn was a valid and enforceable contract and, as
such,    that Thomas was bound by its terms.             We conclude that the
District Court was correct in determining that the agreement was a
valid and enforceable contract.
        Further, Thomas argues that his mistake as to whether a common
law marriage existed is grounds for him to rescind the agreement.
We disagree.      Generally, mistake of law is no excuse to set aside
a   contract.       Section    28-2-410,       MCA.   Section   28-2-410,   MCA,
provides:
        Mistake of law constitutes a mistake, within the meaning
        of this part, only when it arises from:
              (1)  a misapprehension of the law by all parties,
        all supposing that they knew and understood it and all
        making substantially the same mistake as to the law; or
              (2) a misapprehension of the law by one party of
        which the others are aware at the time of contracting but
        which they do not rectify.
While Thomas may later have questioned whether he and Kathryn had
a common law marriage, he was aware of Kathryn's position and the
recitals evidence his understanding.              Additionally, Thomas asserts
that he was under duress or coercion at the time he executed the
agreement,      however,    we note that the recitals in the agreement
state otherwise.           Further, the language of the agreement itself
states that "the       relationship may nonetheless have constituted a
common      law   marriage.”     The   agreement,     signed and executed by
Thomas, states that it was reached "free from fraud or imposition,
coercion,    or duress."        The District Court concluded that "the
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Respondent [Thomas] has failed to present sufficient evidence to
overcome     the presumption that the written      contract   was   for
consideration."     We have held that where the totality of the
circumstances support the trial court's findings that there was no
duress or coercion, this Court will not reverse the decision unless
it is clearly erroneous.     In re Marriage of Lawrence (19821, 197
Mont. 262, 270, 642 P.2d 1043, 1047.
     Here, the District Court found that the agreement was a signed
writing,     enforceable as a contract,    and that in     seeking to
invalidate the contract Thomas did not meet his burden to show a
lack of consideration.     We find that the District Court correctly
interpreted the law in finding that a valid and enforceable
contract existed between the parties.     Accordingly,   we affirm the
judgment of the District Court.




We concur:
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