                                   No.    95-082

               IN THE SUPREMECOURT OF THE STATE OF MONTANA
                                         1996
IN RE THE MARRIAGE OF:
GEORGEG. FRANKS,
               Petitioner and Respondent
               and Cross Appellant,
         and                                               $J$ '1f-j ]i]$
BONNIE J. FRANKS,
               Respondent   and Appellant.




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


COUNSELOF RECORD:
               For Appellant:
                     Kerry N. Newcomer,         Geiszler    & Newcomer,      Missoula,
                     Montana
               For Respondent:
                     Paul T.     Ryan,   Datsopoulos,           MacDonald     &   Lind,
                     Missoula,   Montana


                                  Submitted        on Briefs:      November 14, 1995
                                                     Decided:      January   18, 1996
Filed:
Justice        James C. Nelson                 delivered               the Opinion         of the Court

         Bonnie            J.      Franks         (Bonnie)             appeals       and     George         G.      Franks
(George)        cross           appeals      from the denial               of Bonnie's             Motion     to Vacate
Settlement           Agreement            and subsequent                 rulings         of the District             Court
for     the Fourth               Judicial         District,            Missoula          County.         We affirm       in

part,      reverse              in part     and remand.
         Bonnie        raises          the following               issues        on appeal:
          1.      Did           the    District           Court         abuse      its     discretion             when   it
refused         to     allow          Bonnie         to       withdraw          from       the     March      18,     1994
settlement            agreement?
          2.      Did the District                   Court abuse its               discretion            when it     found
the      March 18,               1994 settlement               agreement           not     unconscionable             over
Bonnie's         objection?
          3.      Did           the    District           Court         abuse      its      discretion            when it
failed         to award child               support           retroactive           to the date            the parties
separated,            subject          to the statute                  of limitations?
          George raises                two additional                  issues      in his        cross     appeal:
          4.         Did        the    District           Court         abuse      its      discretion            when   it
awarded child                   support     to Bonnie contrary                   to the parties'              March 18,
1994 settlement                   agreement?
          5.         Did        the    District            Court        abuse      its      discretion            when it
reformed         a valuation                of an asset            in the March 18, 1994 settlement
agreement            without          a finding           of unconscionability?
                                                  BACKGROUND
                                                           FACTS
          Bonnie and George separated                              in January            1982 after         21 years     of
marriage.              Although             their         eldest        child      had reached              the     age of
                                                                   2
majority         by the time                   of their      separation,            Bonnie            and George             also

had one minor                child        and were expecting                   another       child.
         When Bonnie               and George separated,                       Bonnie       was employed                   as an
elementary             school         teacher          in    Lo10 and George                 was employed                    as a
millwright            at what             is     now the        Stone     Container              Corporation               paper
mill     near        Frenchtown.                 Bonnie      retired        from her             employment               at the
Lo10 school             in       1991.           She subsequently               taught       for         a time           at St.
Joseph Elementary                    School in Missoula,                  but she is unable                     to continue
teaching         due to health                   problems.
         Prior        to     their         separation,            Bonnie       and George had acquired                              a
motel      and two trailer                     parks    in addition         to their         residence.                   At the
time     of    their         separation,               Bonnie         and George entered                      into     an oral
property          settlement               agreement            whereby        Bonnie       was to               retain       the
residence,           the motel             and the trailer               parks.        In addition                   to paying
the     marital            debt,        Bonnie         managed,          maintained              and          improved        the
properties            over        the      next        few years.              George       did        not       contribute
toward        the development                    or maintenance            of the properties.                          Neither
did     he pay          child         support          for      the     parties'           two        minor          children.
Bonnie        sold     the motel                in June 1982 and retained                        the proceeds.
         In September                1993, more than eleven                       and one-half                 years       after
Bonnie         and         George              separated,             George       filed          a      petition             for

dissolution.                  George             sought      a determination                     of      current           child
support          and       his       interest           in      the     residence          and         trailer            parks.
Bonnie         requested              current           child         support       for      the          parties'            one

remaining         minor          child,          as well     as child          support       retroactive                  to the
date     of the parties'                       separation.            She also       requested                ratification

                                                                 3
of the parties'               1982 oral              property             settlement          agreement.

          At a pre-hearing                settlement                conference            on March 18, 1994,                 the
parties       signed         a hand-written                   agreement            containing             provisions         for
the   final       disposition                  of     the     parties'             property           and debt.              The
agreement        stipulated          that           Bonnie was to receive                         the majority           of the
parties'        assets        and,        in        return,          George would                 receive      $50,000           in
cash from Bonnie and he would not be required                                               to pay child              support.
          The next        business              day following                   the      settlement           conference,
Bonnie       attempted         to withdraw                  from the agreement                     claiming           that   the
settlement          master                and         both          attorneys             were       overbearing             and
intimidating            and that          she had been confused                           and overwhelmed                by the
process.         Bonnie discharged                     her attorney                claiming         that     he failed           to
provide        her with         various              documents             including          discovery              responses
and that        he failed         to inform                 her of the court's                      scheduling           order.
          At a June 1, 1994 hearing                           before           the District           Court,          Bonnie's
new counsel             moved        to        withdraw                 from      the     settlement            agreement,
reinstitute          a discovery                     schedule              and         proceed       to     trial.           The
District        Court     issued          an order            on June 7, 1994, denying                         the motion.
          On July       6,     1994,       the         District             Court        conducted          a hearing            on
Bonnie's           allegations                      that            the        settlement                 agreement              is
unconscionable.                  Each           party         was         allowed          one      hour       to      present
testimony         and conduct              cross           examination.                  Both Bonnie            and George
testified        at the hearing.
           The District         Court          issued         its        Findings         of Fact,         Conclusions           of
Law and Decree               on August               17, 1994,             whereby         the      court      implemented

the   parties'          settlement                  agreement             after         finding      that       it     was not

                                                                    4
unconscionable.                     However,          in      its        decree,        the     court          modified           the
agreement            to      include         child           support,             to    revalue             stock       held       by
George,        and to include                a Lord Abbott                 U.S.        Government            Fund that            had
not     previously                been      disclosed               by     George.              The District                Court
subsequently                amended          its          findings,           conclusions                  and       decree        to
correct        certain            mathematical              and other             errors.
         On October               6, 1994, George moved the court                                    to alter           or amend
its     decree       to exclude             the Lord Abbott                  fund and deny child                        support.
The court            did      amend the             decree          with      respect           to     the       Lord     Abbott
fund,     but       left      the award of child                         support        unchanged.
         Bonnie           appeals        the District                   Court's        denial         of     her motion            to
vacate        the     settlement             agreement.                   She also            appeals          the     District
Court's         determination                that         the       agreement            is    not      unconscionable.
George        cross        appeals          on the District                  Court's           modification               of the
agreement           to include           child        support             and to revalue                   the stock.
                                             SETTLEMENTAGREEMENT
         Bonnie           moved to          vacate          the         settlement            agreement             contending
that      she felt            intimidated             at      the        settlement            conference              and that
George failed               to disclose             all     of his assets.                    She argued that               these
and other           factors         made the agreement                     unconscionable.                     The District
Court      denied           Bonnie's         motion           and accepted                the        written         agreement
determining               that,      with     the         inclusion          of certain               "adjustments                for
undisclosed                and      undervalued               property,"                the     agreement               was       not
unconscionable.
         The terms                of a separation                   agreement,           except         those        providing
for     the     support,            custody         and visitation                     of children,              are     binding

                                                                    5
upon       the      court         unless      the      court            finds      the        agreement             to         be
unconscionable.                    Section        40-4-201(2),                 MCA.      If         the     separation
agreement          is found to be unconscionable,                           then the court                 may    request
that     the parties             submit    a revised         separation            agreement              or the court
may order           the disposition            of property.                    Section        40-4-201(3),                MCA.
Consequently,               it    was reversible              error        for     the      District             Court         to
modify          the parties'          agreement        without                 finding          the          agreement
unconscionable.                   In re Marriage             of Blankenship                   (1984),        210 Mont.
31, 35, 682 P.2d 1354,                     1356.
         Bonnie also             contends      that     the District               Court       erred        in failing
to     enforce          the parties'          1982 oral          property             settlement            agreement.
However,          this     Court      has already            held       that     oral    marital            settlement
agreements           are unenforceable               as property               settlement           agreements.                In
re Marriage              of Simms (19941,            264 Mont.           317, 321, 871 P.2d 899, 901-
2.
         Accordingly,                we    hold       that       the       District             Court         erred            by
modifying           the parties'           settlement            agreement            without         finding            it    to
be unconscionable                    and we remand                 to     the      District               Court     for             a
determination               of whether         or not        the        agreement        is     unconscionable.
If     the      District         Court     finds      that       the      agreement            is     conscionable,
then       it     must      be enforced             as written,                excluding            provisions                for
support,           custody        and visitation             of the parties'                  children.             If        the

District          Court      finds     that   the agreement                is unconscionable,                     then the
court           may proceed          pursuant          to     § 40-4-201(3),                   MCA, and             either
request          that      the parties        submit         a revised            separation              agreement            or
the court           may order         the disposition               of property.

                                                             6
                                                       CHILD SUPPORT
          In     the      March         18,          1994     settlement             agreement,               the      parties
stipulated             that     George would not be required                               to pay child                support
for    the parties'              minor         child.         However,         the District              Court         ordered
George to pay $435 per month in child                                        support        to Bonnie               effective
September          2, 1993.
          George contends                 it     was error           to award child               support           to Bonnie
contrary         to the parties'                 settlement            agreement          since     Bonnie received
a majority             of the parties'                  assets.            Nevertheless,                the terms            of a
separation              agreement              providing             for     the     support,            custody,              and
visitation             of children             are not binding               upon the court.                   Section         40-
4-201(2),          MCA.         Moreover,              our statutory               and case law provide                       that
the Uniform              Child        Support           Guidelines           must be used                in     all     cases.
Section         40-4-204(3)             (a);     Brandon v. Brandon                      (Mont.     1995),            894 P.2d
951,      953,     52 St.Rep.             381,         382.
          In     her      response              to     the     petition            for      dissolution,                Bonnie
requested          child        support          retroactive               to the parties'               separation              in
1982.          However,         the District                Court     awarded child               support           effective
September           2,        1993,       the        date      of     the      petition           for         dissolution.
Bonnie          contends         that      the District                Court       abused its            discretion              in
failing         to award retroactive                         child     support.
          "In     determining                  child        support         retroactivity,                we will              not
disturb          the award made by the District                                Court       unless        a clear             abuse
of discretion                 resulting          in substantial               prejudice           is shown."                 In re
Marriage          of     Nash       (1992),            254 Mont.            231,     236,     836 P.2d                598,     602
(citing          In re Marriage                 of DiPasquale                (1986),        220 Mont.               497,      499,

                                                                 7
716 P.2d 223,         224)
       Bonnie      has     failed         to     show that          she has been substantially
prejudiced      by the District                Court's      determination          not to award child
support      retroactive            to     1982.           Bonnie        had   the    benefit    of    the
parties'     income-producing                  property     during       the eleven     years   that   she
and George were separated.
       Accordingly,          we hold that            the District          Court     did not abuse its
discretion        by awarding             child      support        to    Bonnie     contrary     to   the
parties'      settlement            agreement             and   by       awarding       child    support
effective     September        1993.
       Affirmed       in part,           reversed         in part     and re




We Concu




  / ‘UP st!ices
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