Miller v. Miller, 80-71

• Citation: 616 P.2d 313,37 St.Rep. 1523,189 Mont. 356
• Decision Date: 27 August 1980
• Docket Number: No. 80-71,80-71
• Parties: In re the Marriage of Raymond C. MILLER, Petitioner and Respondent, v. Arlene MILLER, Respondent and Appellant.
• Court: Montana Supreme Court

Page 313

616 P.2d 313

189 Mont. 356

In re the Marriage of Raymond C. MILLER, Petitioner and Respondent, v. Arlene MILLER, Respondent and Appellant.

No. 80-71.

Supreme Court of Montana.

Submitted on Briefs July 11, 1980.

Decided Aug. 27, 1980.

Oleson Law Firm, Kalispell, for respondent and appellant.

Langen & Nielsen, Glasgow, for petitioner and respondent.

HARRISON, Justice.

This is an appeal from a denial to reopen and vacate a judgment in a divorce action in the District Court of the Seventeenth Judicial District, County of Valley.

A separation agreement was signed and filed with the District Court by the parties October 22, 1976. On March 28, 1978, respondent, Mr. Miller, finalized the divorce by obtaining a decree for dissolution. Appellant, Mrs. Miller, argues that this was done without notice to her of entry of judgment and that she only received a copy of the final decree after it had been obtained.

In August 1978, Mrs. Miller moved to reopen or vacate the judgment. The motion was denied on the grounds that it offended Rule 60, M.R.Civ.P. On September 26, 1978, Mr. Miller filed a motion for partition of real estate. After hearing, the Honorable M. James Sorte issued an order on December 21, 1978, indicating that he would only consider property acquired by the parties between October 22, 1976 and March 28, 1978. A motion for reconsideration was filed by appellant on June 8, 1979, but was never ruled upon.

A hearing to determine the rights of the parties in real estate acquired between the time of the separation agreement and the final decree was conducted on August 24, 1979. An order including findings of fact, conclusions of law and judgment and decree was entered on December 13, 1979. Mr. Miller filed a notice of entry of judgment one week later.

The Millers were married on November 13, 1974, and moved to Richland, Montana, where Mr. Miller had resided prior to the marriage. Two years later, on October 22, 1976, after serious marital problems had developed between them, the Millers executed and filed a separation agreement.

Thereafter Mrs. Miller moved to Kalispell, Montana. Mr. Miller followed her, and for sixteen months there were attempts to reconcile, resulting in at least a periodic marital relationship. During this reconciliation period, the Millers purchased two acres of land near Kalispell as the site of Mrs. Miller's trailer. The resumption of the marital relationship involved short periods wherein the parties lived together as husband and wife. Further, for the years of 1976 and 1977, the Millers filed joint income tax returns.

On March 28, 1978, Mr. Miller obtained a divorce and a default judgment against Mrs. Miller. On August 10, Mrs. Miller filed a motion to reopen or vacate the judgment. Mr. Miller then moved to partition the real property. After hearing on the motions on October 6, 1978, and a final hearing on August 24, 1979, the court entered the December 13, 1979, decree which is now appealed.

The following issues are raised for our consideration:

1. What effect did the parties' attempt to reconcile have on the separation agreement?

2. Can marital property be distributed in separate hearings without either hearing involving the totality of the property?

3. Is the dissolution of the marriage divisible from the other aspects of the decree?

4. Was there extrinsic fraud on the part of respondent so as to deny appellant her "day in court"?

5. Was the court's final action an "action in real property," and if so, was the trial properly conducted under section 25-2-103, MCA?

The record discloses that in the sixteen months between the filing of the separation agreement and the date of the final decree of dissolution, the Millers attempted a reconciliation. The first issue presented, therefore, is really twofold: Was there a reconciliation, and did it revoke the separation agreement?

Reconciliation is the voluntary resumption of a marital relationship in the fullest sense, and is a state of mind to be determined by the evidence. Keller v. Keller (1932), 122 Cal.App. 712, 10 P.2d 541. The incidents of reconciliation, and the evidence of it, generally include cohabitation where possible, sexual relations, and the maintenance of joint affairs as husband and wife. In 1927, in the case of Ward v. Ward (1927), 81 Mont. 587, 264 P. 667, this Court acknowledged that the revocation of such an agreement is determined by the intent of the parties. However, the intention must be to resume married life completely and entirely, and not to merely enjoy each other's society temporarily, for limited purposes, or as a trial to see if the parties want to continue as a married couple. Temporary cohabitation is not sufficient evidence of a mutual intent to revoke the separation agreement. Ward v. Ward, 81 Mont. at 602, 264 P. at 672.

In the case before us the facts are not conclusive as to the existence or nonexistence of a reconciliation. Mrs. Miller testified that she and Mr. Miller spent at most three months together between December 1976 and April 1978. However, they filed joint income tax returns and purchased the Flathead County property together. We take note of the fact that this periodic state of matrimony may have been sufficient under the circumstances in light of the time demands placed on Mr. Miller to conduct his Richland business. The District Court found there was a reconciliation.

It is the effect of the reconciliation which is at the heart of the issue at bar. We are confronted with the characteristics of both a separation agreement and a property settlement agreement inseparably mixed in one instrument. A reconciliation may have a certain effect upon a separation agreement and quite another on a settlement agreement. Annot., 35 A.L.R.2d 707, 711 (1954). The principal functions of a separation agreement are to stipulate that the parties may lawfully live separate and apart and to provide for the support of the wife and the custody and support of children. Acre v. Koenig (1965), 89 Idaho 342, 404 P.2d 621, 623. On the other hand, the function of a property settlement is to make a full and final disposition of the parties' rights with respect to joint and separate property. Annot., 35 A.L.R.2d at 711. We are persuaded by the reasoning in Potts v. Potts (1975), 24 N.C.App. 673, 211 S.E.2d 815, wherein the court held that reconciliation and resumption of the marital relationship, and all the incidents thereof, will have no effect upon those provisions of the agreement which have already been executed.

In the case before us, the Millers had executed all the terms of the agreement relating to the disposition of property owned by them as of October 22, 1976. In such a case it would require an express intent to revoke, manifested by clear and unmistakable action, to void the original agreement. We conclude that when the terms of an agreement have been executed, and the agreement does not disclose overreaching by either party, the instrument is binding as to both in the absence of a new agreement.

If the parties did reconcile, that reconciliation had no effect on the provisions which had been completely fulfilled. For this Court to hold otherwise would be an affront to the policies of the Uniform Marriage and Divorce Act which encourage the amicable settlement of disputes and an improper infringement on the individual rights of persons to determine their own affairs.

Appellant's reliance on our decision in Metcalf v. Metcalf (1979), Mont., 598 P.2d 1140, 36 St.Rep. 1559, is not well founded in its application to her appeal. In Metcalf we upheld the well-settled rule that a trial court is obligated to determine the net worth of the parties at the time of their divorce. See also Grenfell v. Grenfell (1979), Mont., 596 P.2d 205, 207, 36 St.Rep. 1100, 1103. However, the presence of a valid separation agreement is fatal to the applicability of the Metcalf rule. The trial judge must also honor the statutes of the State of Montana and is directed in section 40-4-201, MCA, as follows:

"(1) To promote amicable settlement of disputes between parties to a marriage attendant upon their separation or the dissolution of their marriage, the parties may enter into a written separation agreement containing provisions for disposition of any property owned by either of them, maintenance of either of them, and support, custody, and visitation of their children.

"(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." (Emphasis added.)

Unconscionability was never at issue at any time during the proceedings. When the District Court complies with such a direct statutory mandate, there can be no error. This Court takes note of the age of the agreement at the time of its incorporation into the final decree. But we will not substitute our conclusions for those of the District Court in the absence of clear and reversible error. In re Marriage of Kramer (1978), 177 Mont. 61, 580 P.2d 439, 442, 35 St.Rep. 700, 704. We conclude that marital property can be distributed in separate hearings without either hearing discussing the totality of the marital estate where there is mutual agreement as to its disposition. The rule is well reasoned that persons must be able to separate amicably and divide their property without interference where such division is feasible. It is not the province of this Court to alter decisions and agreements made between husband and wife in the absence of compelling injustice.

Appellant is correct in contending that the net worth of the parties is a necessary consideration; however, if...