                                    NO.     96-101
               IN THE SUPREMECOURT OF THE STATE OF MONTANA
                                          1996


IN RE MARRIAGE OF
ALAN L. HOOKER,
               Petitioner   and Appellant,
         and
DIANE L. HOOKER,
               Respondent   and Respondent.



APPEAL FROM:          District  Court of the Sixteenth   Judicial District,
                      In and for the County of Garfield,
                      The Honorable Kenneth R. Wilson, Judge presiding.


COUNSELOF RECORD:
               For Appellant:
                      Donald R. Herndon,      Herndon,    Sweeney & Halverson,
                      Billings, Montana
               For Respondent:
                      J. Reuss,   Wright, Tolliver       & Guthals,
                      Billings,   Montana


                                          Submitted   on Briefs:      June 27, 1996
                                                         Decided:     September   12, 1996
Filed:
Justice        Charles       E. Erdmann 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             Publishing           Company and West Publishing
Company.
         Appellant          Alan L. Hooker appeals                      from the amended findings                       of
fact,       conclusions         of law,            decree       of dissolution,               and final           order
issued       by the Sixteenth            Judicial           District             Court,      Garfield          County.
We affirm.
         The dispositive              issue          on appeal            is     whether       Alan       should        be
estopped          from     challenging             the oral           property          settlement        which        the
District          Court     incorporated             into       its    final       decree      of dissolution.
                                                        FACTS
           In May 1989, Alan L. Hooker petitioned                                  the District            Court       for
a dissolution              of his    marriage           to Diane L. Hooker.                       Alan     and Diane
were married              in 1968 and together                   they     operated          Hooker       Livestock,
Inc.,       a farming        and ranching              business.               Alan's      parents         (John and
Mildred)          also    operated      a farming           and ranching                operation        called        the
Hooker       Cattle        Company.           Over the years,                    the     operation        of    Hooker
Livestock          and Hooker Cattle                 became commingled                   and essentially               the
two companies              were operated             together.            John died          in 1975 and when
Mildred           passed      away       in         1982        her       will          provided         for         equal
distribution              of Hooker Cattle              assets          into     two trusts--one               for     her


                                                            2
grandchildren             and one providing                  income to Alan during                     his life      with
the remainder              to her grandchildren.                         To establish              the     trusts,       it
became necessary                  to value            the assets         of both          ranching         operations
and eventually              the land,            cattle,       equipment,          and cash were divided,
which         resulted      in a determination                    of the value                 of Alan's      interest
in the trust.
          The dissolution                 proceeding         was set for          trial         on April      2, 1991.
On the morning              of trial,            the parties             informed         the court         they     were
in      the     process       of     negotiating               a settlement                regarding          property
distribution.               Later         that     day the parties             told            the court      they    had
reached         an agreement.               The court          convened and the parties                       read the
settlement          agreement             into     the record.           Alan and Diane were sworn as
witnesses          and both         of them stated                that     they     understood             and agreed
to the terms of the property                            distribution.             Both parties              agreed       to
sign      the     settlement             agreement          once it       was reduced              to writing         and
the District              Court     requested              a copy of the agreement                       once it      was
signed.          However,          subsequent           efforts          by the parties                to reduce      the
agreement           to    writing           failed         and a written              agreement             was never
executed.
          On June 4, 1991,                  Alan moved the District                        Court       to adopt       the
transcript           of    the April             2,    1991,      proceedings              as its        findings        of
fact,         conclusions           of      law,       and final          decree          in     the     matter.         On
August         29, 1991,          the District              Court     issued        an order            stating      that
the      oral      stipulation              was a contractual                  obligation                between      the
parties         and ordered          it     to be specifically               performed.                On October        2,


                                                              3
1991,      the court          entered        its      findings        of fact,          conclusions               of law,
and decree            of    dissolution             stating         that      the      "parties[']               property
settlement            agreement        is not unconscionable                        and is      approved           by the
Court."          On the same day,              the parties             filed        a stipulation                into      the
record         agreeing      that     the findings                of fact,      conclusions                of law,         and
decree         of dissolution           should         be entered.
         Over the course               of the next             two years,            the parties             proceeded
to execute            many of the terms of the property                               settlement           agreement.
Property         was exchanged,              titles       were signed,               and monies were paid.
On March 10, 1994,                   two years          and five            months after             the     court         had
entered         its    original       decree,         Alan filed            a motion          with    the District
Court      to revoke          or modify            the decree         with      respect         to the property
distribution.               Following        an evidentiary                 hearing,         the District               Court
entered         an order      on May 4, 1994, denying                        Alan's         motion     to revoke            or
modify         stating      that:
           [Plrior     to April   2, 1991, and subsequent thereto       up to
          the      hearing    of April    28,  1994,     the   parties    have
          voluntarily      made exchanges,     transfers     and agreements
          which in effect       resulted  in an almost total     performance
          of the settlement        agreement . . . .
          In    April       1995,      Diane          filed        a motion           for     leave         to     file          a
third-party              complaint      against         the First           Trust     Company of Montana                    to


resolve         the terms         of a land transfer                  associated             with     the property
distribution.                On May 4, 1995,                  the District             Court        denied        Diane's
motion         and entered            an amended decree                     and final          order.             In      that
order      the District              Court     concluded            that:
          The Property  Settlement                       Agreement stipulated    into the
          record at the trial   of                     this cause on April    2, 1991, is

                                                              4
         not unconscionable     and is approved by the Court,    and is
         by this reference    incorporated  herein as is this Court's
         Order dated May 4, 1994, insofar     as it makes any findings
         or conclusions    not inconsistent   with this Order.
The court          found    that:
         The stipulation   for settlement between the parties     which
         has been approved by this Court has been almost      totally
         performed     and the remaining   dispute   over the land
         exchange is considered by the Court to be de minimis.
This     appeal      followed.
                                                 DISCUSSION
         The parties          addressed         the issues          of whether         the District        Court
erred      in determining              that     the oral           property      settlement         agreement
was not unconscionable                  and whether           the court        erred     in incorporating
the agreement          into     the amended final                  decree.      However,        we determine
that     the dispositive               issue     in this       case is whether             Alan     should     be
estopped        from challenging                the agreement.
         Diane argues          that     since Alan assented                   to the agreement         in open
court      and later          moved the           court       to     adopt      the     agreement         as its
findings        of fact       and conclusions             of law, he should be estopped                      from
challenging          the agreement.               Diane also           argues     that     Alan     should     be
estopped        because       the agreement           has been substantially                     performed.
         Alan      argues      that     he should          not be estopped               from    challenging
the agreement          because the District                    Court      did not grant            the motion
filed      by his     former          counsel     to adopt          the on-record           stipulation        as
its     findings      of fact         and conclusions              of law.      Alan also         claims     that
substantial          portions          of the agreement               have not been performed.




                                                          5
          In its        May 4, 1995, final               order         the District                 Court     found that
the       property          settlement           between            the       parties            "has       been      almost
totally        performed           and the remaining                 dispute             over     the land exchange
is considered              by the Court            to be de minimis."                        The court          based its
finding          on a number of other                    findings             it        had made in           its     May 4,
1994,      order         which     it    adopted       into         the final             order.
          This      Court        has stated           that     if     a district                 court      reaches              the
correct          result,         its     decision       will         be affirmed                 regardless           of         the
court's         reasoning.              Farmers Union               Cent.          v.     Department          of Revenue
(1995),        272 Mont.           471, 475,          901 P.2d 561, 563.                         We determine              it      is
not     necessary           to     answer       the    evidentiary                  question         of whether                  the
parties'           settlement            agreement           has been substantially                           performed.
Instead,           we      conclude         that        Alan         is       judicially              estopped                  from
challenging              the agreement.
          This     Court        has previously           recognized                 the doctrine            of judicial
estoppel.               gee Caekaert         v. State          Comp. Mut.                 Ins.      Fund (1994),                 268

Mont.       105,        885 P.2d 495;           Rowland v.             Klies             (1986),      223 Mont.                 360,
726 P.2d          310.          Under this         doctrine          we do not permit                    litigants                 to
assert          inconsistent              and       contradictory                       positions        in         separate
litigation.                Caekaert,        885 P.2d at 501.                        The clearest              reason             for
the     rule       is    to prevent         parties           from playing                  "fast-and-loose                     with
the courts."                Caekaert,        885 P.2d at 501 (citing                              Rowland,          726 P.2d
at      315).              To     give      rise        to         judicial               estoppel,           the          first
representation                  must have been made knowingly                                    and free           from         the
other      party's         inducement         and it         applies          particularly               to admissions


                                                               6
or     positions                        asserted                 under          oath               or      in        previous                  litigation.
Caekaert,               885 P.Zd                 at        501-02            (citing               Rowland,                726 P.2d             at         315).

           In         the               present             case,              the           record              is          clear              that              Alan
unequivocally                           expressed                his     assent               to         the     stipulation                      which              had

been       read            into           the         record            in      open          court             at         the     April              2,         1991,

hearing.                     In         June          1991,            through               his          counsel,                Alan           moved               the
District              Court              to    adopt         the        on-record                   stipulation                    as its                 findings

of    fact           and conclusions                         of        law.              In effect,                  the     court             granted             the
motion          in     its         August             29,        1991,         order          when it                stated             that         it     deemed
the    stipulation                        to be a contractual                               obligation                     between             the         parties

and        ordered                 it         specifically                      performed                      through              the          filing               of

findings              of      fact            and appropriate                             decree.               In     September                  1991,            the

parties              stipulated                     that         the     findings,                      conclusions,                     and      decree              be

entered.

           Alan's                 previous                 actions                  in      agreeing                  under              oath              to      the

on-record              stipulation,                        his     motion                requesting              the         court         to adopt                the

agreement              as its                 findings             of        fact         and conclusions                          of     law,             and his

stipulation                   that            the      decree            be entered,                      all        prevent              him             from     now

asserting              a contrary                     position.

           We therefore                          hold            that          Alan           is         judicially                     estopped                  from

challenging                       the         oral          property                     settlement                  agreement                  which              the

District               Court              incorporated                        into           its          amended                final          decree                of

dissolution.

           Affirmed.

                                                                                           ald%L
                                                                                                          Justice

                                                                                    7
Chief      Justice




/2!2zkw
Justices
                                     September 1996
                                             12,


                                CERTIFICATE OF SERVICE

I herebycertify that the following certified order was sentby United Statesmail, prepaid,to the
following named:

DonaldR. Herndon,Esq.
HERNDON, SWEENEY& HALVERSON, P.C.
Box 80270
BillingsMT 59108-0270

J. Reuss
Wright, Tolliver & Guthais
Box 1977
BillingsMT 59103



                                                  ED SMITH
                                                  CLERK OF THE SUPREMECOURT
                                                  STATEOF MONTANA
