In Re the Marriage of Keirle , 210 Mont. 214 ( 1984 )

No. 83-552
IN THE SUPREME COURT OF THE STATE OF ?IOPJTANA
1984
IN RE THE J%ARRIAGE OF
DEAN ERVIN KEIRLE,
Petitioner and Respondent,
and
JEANETTE KALINA KEIRLE, now known
as JEANETTE KALINA ANDERSON ,
Respondent and Appellant.
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Fallon,
The Honorable Alfred B. Coate, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Denzil R. Young, Baker, Montana
Richard B. Baer, Bismarck, North Dakota
For Respondent:
Gene Huntley & Ira Eakin, Baker, Montana
Submitted on Briefs: March 15, 1984
Decided: Nay 29, 1984
Filed: TiAfiy f l 394
18
-
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Jeanette Kalina Keirle a-ppeals from a dismissal of her
motion for modification of a divorce decree by the District
Court for the Sixteenth Judicial District, Fallon County.
Dean and Jeanette Keirle were married and divorced
twice, the second dissolution effective November 27, 1978.
Prior to this second dissolution, the parties signed written
stipulations as to child custody and support, property
division and maintenance. According to the stipulations,
Jeanette was to live in the family home, located in Baker,
until sometime in 1979. She was entitled to an undivided
one-half interest in the residence, which was eventually to
be sold, and was entitled to take with her when she moved
certain items of personal property. The stipulations were
incorporated into the November 27, 1978 dissolution decree.
On April 14, 1983, Jeanette filed a motion to amend
and/or clarify judgment and property division and to increase
child support. She requested that the decree be amended to
allow a cash payment in lieu of the household items she was
entitled to, claiming Dean refused to allow her possession of
them. She also requested that the value of the home be
determined and. divided between the parties and that the child
support payments be increased. On June 28, 1983, a hearing
was held on the motion. In response to Dean's assertion that
the time limits cited in Rules 59 and 60, M.R.Civ.P., had
expired, Jeanette moved to amend her motion to reflect that
it was brought under sections 40-4-201, 40-4-204, and
40-4-208, MCA. Her motion was granted.
The District Court heard argument on the issue of
whether the dissolution decree should be modified. According
to stipulation of the parties, the child support payments
were increased. The District Court ruled that the time
allowed for appeal of the dissolution decree had passed and
that it did not have jurisdiction to modify the property
division. A judgment increasing the child support payments
according to the stipulation and dismissing the remainder of
Jeanette's motion was entered October 31, 1983.
We are faced with the issue of whether the District
Court properly dismissed Jeanette's motion to amend the
dissolution decree. Jeanette contends that the dismissal was
improper according to law and that the District Court erred
procedurally by not entering a judgment with findings of fact
or which properly reflected its rulings at the June 28, 1983
hearing.
Rule 59(g), M.R.Civ.P., provides that z "motion to alter
or amend the judgment shall be served not later than 10 days
after the service of the notice of the entry of the judgment
. . ." Rule 60(b), M.R.Civ.P. provides that a motion to
relieve a party from a judgment must be made within "a
reasonable time" and in some cases not more than 60 days
after the judgment or notice of entry of the judgment.
Jeanette did not satisfy the requirements for either of these
motions and was therefore properly precluded from making
them. Armstrong v. High Crest Oil, Inc. (1974), 164 Mont.
187, 520 P.2d 1081.
To have a property division modified otherwise a party
must comply with section 40-4-208, MCA, which provides:
"(3) The provisions as to property disposition may
not be revoked or modified by a court, except:
(a) upon written consent of the parties; or (b) if
the court finds the existence of conditions that
justify the reopening of a judgment under the laws
of this state."
In finding no existence of conditions that would justify
reopening the judgment in this case, the District Court was
not required to enter findings of fact. Rule 52(a),
In this case the appellant has not claimed. the existence
of unconscionability, fraud, or any other inequitable
situation which would give a court a legal basis upon which
to reopen the judgment. She is attempting to enforce the
judgment which incorporated the parties' stipulations as to
the property division by making a motion to modify. She is
precluded by statutory time limits and by the fact that she
has no legal basis to compel a court to reopen the judgment.
In Hadford v. Hadford (Mont. 19811, 633 P.2d 1181, 1184, 38
St.Rep. 1308, 1312, this Court noted:
"By section 40-4-201 (2), MCA, district courts must
abide by the terms of a property settlement
agreement unless its terms are unconscionable.
This statute has a dual purpose. First, it
expresses a clear policy encouraging property
settlement agreements. Obviously, a property
settlement agreement would be useless if the courts
were free to set them aside whenever the mood
struck. Under the statute, the property settlement
decree must be approved unless the District Court
finds it to be unconscionable.
"The second purpose has the goal of finality. A
property settlement agreement would also be useless
if the courts were free to set them asid.e at any
time simply on the motion and allegation of one of
the parties that the property settlement agreement
merged with the decree is unconscionable.. . ."
The judgment of the District Court is affirmed.
L -.. ,
.
, , w.-w. -
Justice
We Concur:
3C h i4 J u4t iQJG.4
ef s ce
4-8Q