                             NO.    92-586
           IN THE SUPREME COURT OF THE STATE OF MCNTANA
                                   1993


IN RE THE MARRIAGE OF
VIRGINIA ELEANOR FULLERTON,
           Joint Petitioner and Appellant,
     and
HAROLD WILLIAM FULLERTON,
           Joint Petitioner and Respondent.



APPEAL FROM:    District Court of the Third Judicial District,
                In and for the County of Granite,
                The Honorable Ted L. Mizner, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
               Richard A. Reep, Reep, Spoon,     &   Gordon, Missoula,
               Montana
           For Respondent:
               Harry A. Haines and Gail M. Haviland, Worden,
               Thane & Haines, Missoula, Montana


                              Submitted on Briefs:      April 15, 1993
                                             Decided:   May 11, 1993
Filed:
chief Justice J. A. Turnagn delivered thp Opinion cf the Court.
       Virginia E. Fullerton (Virginia) appeals the denial of her
motion to set aside the Final Decree of Legal Separation and
Marital Property Settlement Agreement.        In accordance with Rule
59 (d) and Rule 60 (c), M.R.Civ. P., Virginia's motion was deemed
denied after the District Court for the Third Judicial District,
Granite County, failed to rule on it within forty-five days of its
filing.    We reverse and remand.
       We address one issue in this appeal:
     Did the District Court err in failing to hold a hearing on the
motion to set aside the Final Decree of Legal Separation and
Marital Property Settlement Agreement?
       As there is no transcript of any proceeding in this action and
no findings of fact issued by the District Court, we provide a
limited statement of facts taken from the pleadings contained in
the District Court file and the parties' briefs.        Virginia and
Harold Fullerton (Harold) were married on May 21, 1971.      After a
twenty-year marriage, Virginia filed a Petition for Dissolution of
Marriage in the Fourth Judicial District, Missoula County, in
February 1991.     For reasons that are disputed by the parties,
Virginia dismissed the Petition for Dissolution on or about March
14, 1991, and her attorney took no further action in representing
her.
       After the dissolution proceedings were dismissed, Virginia
and Harold, as joint petitioners, filed a Petition for Legal
Separation and a Marital and Property Settlement Agreement in the
District Court for the Third Judicial District, Granite County, on
April 9, 1991.      A Final Decree of Legal Separation incorporating
the terms of the Property Settlement Agreement                (collectively
referred to as the Decree) was entered by the District Court on May
7, 1991.

     After an attempt to reconcile their marriage failed, Harold
asked his counsel to file a motion to convert the Decree into a
Decree     of   Dissolution.      However,   pursuant   to    Rule   60(b),
M.R.Civ.P.,     and 6 40-4-208(3), MCA, Virginia filed consolidated
motions to set aside the Decree on June 25, 1992.            Virginia asked
the District Court, in the alternative, for an order establishing
maintenance and child support payable by Harold.             Virginia also
asked the District Court to hold an evidentiary hearing on these
motions.
     For reasons that are unknown to this Court, it was not until
August 10, 1992, the last day to rule on Virginia's consolidated
motions before they would be deemed denied under Rule 60(c),
M.R.Civ.P.,     that the District Court received the complete file.
The same day, the District Court issued a court memo outlining its
position on the motion.        The District Court reasoned that because
of the voluminous and substantial issues to be resolved, it did not
have adequate time to make an informed ruling on the motion before
the forty-five-day time limit of Rule 60(c), M.R.Civ.P.,             would
expire.    In addition, the District Court believed a hearing on the
motion was necessary.
                                     3
     As a result, the District Court requested that the parties
stipulate to an extension of the forty-five-day time limit.     The
parties stipulated to the extension.   However, the District Court
was aware that there was an issue as to whether the extension was
effective. The District Court stated that if it was concluded that
the extension was effective, a hearing would be scheduled.      For
reasons that are unclear to this Court, Virginia, without further
action by the District Court on the extension issue, appealed to
this Court.


     Did the District Court err in failing to hold a hearing on the
motion to set aside the Final Decree of Legal Separation and
Marital Property Settlement Agreement?
     Harold does not raise the issue of whether the extension of
time was effective, resulting in a premature appeal by Virginia to
this Court.   Therefore, this opinion is limited to the issues
raised by Virginia.
     Virginia asks this Court to: (1) remand this case to the
District Court in order that a hearing can be held on the
circumstances surrounding the execution of the Petition for Legal
Separation and Property Settlement Agreement; or (2) based upon the
evidence before us, hold that the circumstances surrounding the
execution of the Petition for Legal Separation and Property
Settlement Agreement are unconscionable.
     In this appeal we are presented with a substantial amount of
material which has not been admitted as evidence by the District
                                4
Court.     In addition, the validity of the conflicting allegations
and the underlying facts giving rise to the execution of the
petition for Legal Separation and Property Settlement Agreement
have not been addressed by the trier of fact.           While this Court is
mandated by statute to, in equity cases, "review all questions of
fact arising upon the evidence presented in the record         . . .," 5   3-

2-204(5), MCA, we are "not vested with original jurisdiction to try
questions of fact de novo."       Hoppin v . Lang (1928), 81 Mont. 330,
333, 263 P. 421, 422.         Therefore, we will not rule upon the
conscionability of the circumstances surrounding the petition and
property agreement.
     However, because of the magnitude of the allegations raised by
Virginia, we agree with the District Court and Virginia that a
hearing on the motion is necessary.          Virginia alleges the Decree
was the result of fraud, misrepresentation, unconscionability,
conflict     of   interest   by   Harold's    lawyer,    concealment,   and
overreaching.       Harold   denies these allegations and         contends
Virginia had full knowledge of both the legal proceedings and the
assets of the marriage. Harold also contends, as he did before the
District Court, that Virginia's consolidated motion was not timely
filed. Even so, Harold too agrees that a District Court hearing is
necessary.
     Given the circumstances surrounding the execution of the
Petition for Legal Separation and Property Settlement Agreement,
and the circumstances leading to the denial of Virginia's motion to
                                     5
set aside the Decree, we hold that a hearing on Virginia's
consolidated motion is necessary, unless it is determined that her
motion was not timely filed.
     We reverse and remand for further proceedings consistent with
this opinion.
     Pursuant to Section I, Paragraph 3 ( c ) , Montana Supreme Court
1988 Internal Operating Rules, this 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 Montana Law Week, State Reporter and West Publishing Company.




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We concur:
                                          May 11, 1993

                                 CERTIFICATE OF SERVICE

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


Richard A. Reep
Reep, Spoon & Gordon
P.O. Box 9019
Missoula, MT 59807-9019

Harry A. Haines & Gail hl. Haviland
Worden, Thane & Haines
P.O. Box 4747
Missoula, MT 59806

                                                    ED SMITH
                                                    CLERK OF THE SUPREME COURT
                                                    STATE OF MONTANA
