text:
    ROD EDWARD VAN LOAN, Plaintiff and Respondent, -vs-JAMES VAN LOAN, Defendant and Appellant.
    No. 94-586.
    Submitted on Briefs April 6, 1995.
    Rehearing Denied June 8, 1995.
    Decided May 17, 1995.
    52 St.Rep. 390.
    895 P.2d 614.
    271 Mont. 176.

      For Appellant: James C. Bartlett; Hash, O’Brien & Bartlett, Kalispell.
    For Respondent: David W. Lauridsen; Bothe & Lauridsen, Columbia Falls.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

James Van Loan (Appellant) appeals the November 1, 1994 preliminary injunction issued by the Eleventh Judicial District Court, Flathead County, restraining the transfer of certain of his assets. We affirm.

Appellant sexually abused and molested his adopted children for eleven years. On March 1, 1993, Appellant pled guilty to six counts of felony incest and was sentenced to sixty years in prison. Appellant will not be eligible for parole until 2004. On May 13,1994, Respondent Rod Edward Van Loan (Appellant’s son) brought a civil action against Appellant alleging intentional torts and seeking compensatory and punitive damages. Appellant has admitted liability in this action and that his actions caused “significant damage.” Respondent based his tort claims on Appellant’s acts of criminal incest.

On May 19, 1994, Respondent filed an application for preliminary injunction and for an ex parte temporary restraining order, requesting that Appellant be prohibited from disbursing his assets, estimated at over $1 million. Atemporary restraining order was filed. On October 6, 1994, after a hearing was held, a preliminary injunction was issued prohibiting Appellant from disbursing over $1.5 million in IRA and investment account assets. This appeal followed.

Appellant presents two issues on review:

1. May a plaintiff in a tort action obtain a preliminary injunction freezing a defendant’s assets?

2. Is Appellant entitled to affirmative relief for improper pleadings and wrongful issuance of the temporary restraining order and preliminary injunction?

Standard of Review

In Montana Rail Link v. Byard (1993), 260 Mont. 331, 337, 860 P.2d 121, 125, we held that the abuse of discretion standard applies to “discretionary rulings, such as trial administration issues, post-trial motions and similar rulings.” We will not disturb a district court’s preliminary injunction except when there is “manifest abuse” of discretion by the district court. Atkinson v. Roosevelt County (1923), 66 Mont. 411, 421, 214 P. 74, 76-77.

Issue I

May a plaintiff in a tort action obtain a preliminary injunction freezing a defendant’s assets?

The question of whether a plaintiff in a personal injury suit may, through a preliminary injunction, freeze the defendant’s assets is a case of first impression in Montana. We therefore look to other jurisdictions for guidance.

The United States Supreme Court considered a request for a prejudgment freeze of assets by a party seeking equitable relief in Deckert v. Independence Shares Corp. (1940), 311 U.S. 282, 61 S.Ct. 229, 85 L.Ed. 189. The Court held that:

[i]t is well settled that the granting of a temporary injunction, pending final hearing, is within the sound discretion of the trial court; and that, upon appeal, an order granting such an injunction will not be disturbed unless contrary to some rule of equity, or the result of improvident exercise of judicial discretion. [Citations omitted.] As already stated, there were allegations that Independence was insolvent and its assets in danger of dissipation or depletion. This being so, the legal remedy against Independence, without recourse to the fund in the hands of Pennsylvania, would be inadequate. The injunction was framed narrowly to restrain only the transfer of $38,258.85, and the trial judge required petitioners to furnish security for any losses respondents might suffer. In view of this we cannot say that the trial judge abused his discretion in granting the temporary injunction.

Deckert, 311 U.S. at 290, 61 S.Ct. at 234.

Although Deckert sought equitable as well as legal relief, it is significant that the Court’s decision was not based solely on the fact that equitable or statutory relief had been sought. Rather, the Court held that the injunction was a reasonable measure to preserve the status quo and concluded that the legal remedy against the defendant would be inadequate due to the allegations that defendant was insolvent and the danger of dissipation of assets. Deckert, 311 U.S. at 289-290, 61 S.Ct. at 233-234.

Similarly, the Ninth Circuit Court of Appeals held that

a district court has authority to issue a preliminary injunction where the plaintiffs can establish that money damages will be an inadequate remedy due to impending insolvency of the defendant or that defendant has engaged in a pattern of secreting or dissipating assets to avoid judgment. This holding is thus restricted to only extraordinary cases in which equitable relief is not sought.

In re Estate of Ferdinand Marcos, Human Rights Litigation (9th Cir. 1994), 25 F.3d 1467, 1469. In that case, the district court had found a substantial likelihood that the plaintiffs would succeed on the merits of their tort claims, would be irreparably damaged, and that the remedies at law would not be adequate if the injunction were denied. The district court in that case further found that without the injunction a judgment against the defendants would have been meaningless and that the defendants would not be harmed by the injunction. The Ninth Circuit Court of Appeals concluded that final equitable relief need not be requested to authorize preliminary injunctive relief and that any previous comments by the court to the contrary were merely dicta. Estate of Marcos, 25 F.3d at 1477. That court then concluded that there was ample support for the conclusion that a preliminary injunction may be issued even when a final equitable remedy was not sought. Estate of Marcos, 25 F.3d at 1477.

In an earlier case, the Ninth Circuit Court of Appeals more clearly set out a two-part standard for granting a preliminary injunction:

(1) a likelihood of success on the merits and the possibility of irreparable injury, or (2) the existence of serious questions going to the merits and the balance of hardships tipping in its favor. [Citation omitted.] These are not two distinct tests, but rather the opposite ends of a single “continuum in which the required showing of harm varies inversely with the required showing of meritoriousness.” [Citation omitted.]

Miss World (UK) Ltd. v. Mrs. America Pageants, Inc. (9th Cir. 1988), 856 F.2d 1445, 1448.

The Ninth Circuit, in Estate of Marcos, noted that most of the Circuit Courts of Appeal have held that preliminary injunctions are available when a money judgment was in danger of being made worthless by the dissipation of assets. Estate of Marcos, 25 F.3d at 1478. That court cited to the Second Circuit Court of Appeals, which held that

even where the ultimate relief sought is money damages, federal courts have found preliminary injunctions appropriate where it has been shown that the defendant intended to frustrate any judgment on the merits by transferring its assets out of the jurisdiction .... this is an appropriate case for the issuance of injunctive relief to prevent [the defendant] from making uncollectible any judgment. [Citations omitted.]

Estate of Marcos, 25 F.3d at 1479; citing In re: Feit & Drexler, Inc. (2d Cir. 1985), 760 F.2d 406, 416. The Ninth Circuit similarly relied on the Fourth Circuit Court of Appeals when it upheld a preliminary injunction preventing dissipation of assets where plaintiffs alleged that the defendant was insolvent and where its assets were in danger of dissipation and depletion. Estate of Marcos, 25 F.3d at 1479; citing United States ex rel. Taxpayers Against Fraud v. Singer Co. (4th Cir. 1989), 889 F.2d 1327.

In Tri-State Generation and Transmission Ass’n, Inc. v. Shoshone River Power, Inc. (10th Cir. 1986), 805 F.2d 351, 355, the court held that a preliminary injunction was warranted where irreparable harm would result from the inability to collect a money judgment. The Tenth Circuit applies a four-part test regarding preliminary injunctions: (1) a substantial likelihood that the movant will eventually prevail on the merits; (2) that the movant will suffer irreparable injury unless the injunction issues; (3) that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) that the injunction, if issued, would not be adverse to the public interest. Mid-States Ag-Chem. Co. v. Atchison Grain Co. (D. Kan. 1990), 750 F.Supp. 465, 467; See, Tri State Generation, 805 F.2d at 355.

In the instant case, Respondent attempts to prevent Appellant from dissipating his (Appellant’s) assets. Respondent presented evidence to support his claim that there is an actual threat to his (Respondent’s) ability to collect the full damages that may be awarded to him. Section 27-19-201, MCA, provides for issuance of a preliminary injunction when:

(1) when it shall appear that the applicant is entitled to the relief demanded and such relief or any part thereof consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually;
(2) when it shall appear that the commission or continuance of some act during the litigation would produce a great or irreparable injury to the applicant;
(3) when it shall appear during the litigation that the adverse party is doing or threatens or is about to do or is procuring or suffering to be done some act in violation of the applicant’s rights, respecting the subject of the action, and tending to render the judgment ineffectual;
(4) when it appears that the adverse party, during the pendency of the action, threatens or is about to remove or to dispose of his property with intent to defraud the applicant, an injunction order may be granted to restrain the removal or disposition;
(5) when it appears the applicant has suffered or may suffer physical abuse under the provisions of 40-4-121.

Subsections two and three apply to the instant situation where Appellant has threatened that he will move his assets out of Respondent’s reach. If Appellant is not enjoined from carrying out his threat, Respondent’s potential judgment will be ineffectual and he will be irreparably injured. None of the statutory prohibitions on injunctions applies to this case. See § 27-19-103, MCA.

As demonstrated by the above case analysis, there are numerous standards used to determine whether an injunction is proper in the context of a claim for monetary damages. They share common components, with the basic intent being to balance protection of the moving party when no remedy at law will provide damages in a particular situation against the need to keep an adverse party’s assets free from encumbrances. Each of the test’s elements are represented in the following four components, although all jurisdictions’ tests do not necessarily contain all four elements:

(1) the likelihood that the movant will succeed on the merits of the action;
(2) the likelihood that the movant will suffer irreparable injury absent the issuance of a preliminary injunction;
(3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party (a balancing of the equities); and
(4) the injunction, if issued, would not be adverse to the public interest.

We adopt these four elements as the test in Montana to determine whether a preliminary injunction should issue when a party’s monetary judgment may be made ineffectual by the actions of the adverse party thereby irreparably injuring the applicant. The moving party has the burden of proving these elements.

The District Court in the case at bar concluded that this is an extraordinary case, that Respondent will be irreparably injured if the assets are dissipated, that Respondent is very likely to prevail on the merits of his claim, that Appellant will not be unduly burdened, and that the injunction is not adverse to public policy.

In the instant case, Appellant admitted liability and stated that significant damages have occurred. It therefore appears that Respondent will succeed on the merits of the action. If Appellant disperses his assets, rendering a judgment against him worthless, Respondent will suffer irreparable injury absent the issuance of a preliminary injunction. This analysis comports well with that of Estate of Marcos and other cases cited above. The threatened injury to Respondent outweighs any damage the injunction may cause to Appellant, primarily because Appellant is in prison and is not eligible for parole until 2004. Furthermore, Appellant did not identify any damage he will suffer as a result of the preliminary injunction, or how it could be adverse to him. Finally, based on the foregoing judgment, the injunction would not be adverse to the public interest. We caution that our analysis is to be narrowly interpreted. The courts cannot countenance routine, meritless, or vindictive petitions for preliminary injunctions of this sort. An injunction is to be issued only under the most clear facts that fully satisfy the four-part test adopted above.

Appellant focuses on the facts of this case in order to dissuade us from concluding that an injunction is appropriate. These contentions ignore the test factors herein adopted, and the District Court’s findings and conclusions. We agree with the District Court that this is an extraordinary case: We hold that where, as here, the four test factors adopted above are completely met, a preliminary injunction is appropriate under § 27-19-201(2) or (3), MCA. The District Court did not abuse its discretion when it granted Respondent’s motion for a preliminary injunction.

Appellant argues that, pursuant to § 27-19-201(2), MCA, we have held that harm which can be recompensed with an award of money is not considered irreparable harm. Recovery of money damages is available in an action at law without resorting to equity. In a number of decisions, we have denied injunctive relief in the context of claims for monetary damages. However, these decisions are premised upon an assumption that monetary damages will adequately compensate the injured party. The requested injunctive relief related to collateral matters and did not challenge the adequacy of the monetary relief. In Dicken v. Shaw (1992), 255 Mont. 231, 236, 841 P.2d 1126, 1129, we held that a plaintiff, suing for breach of a lease and wrongful eviction, was not entitled to an injunction because she could be adequately compensated for the breach through monetary damages. In that case, the lessors allegedly breached a rental lease and the plaintiff/Iessee sought monetary damages for losses resulting from that breach and requested a preliminary injunction to prevent the lessors from renting the leased property to another renter until the litigation was completed. Dicken, 841 P.2d at 1128. We affirmed the district court’s denial of the preliminary injunction because the lessee failed to prove that she would be greatly or irreparably injured if the lessors rented the space to someone else. Dicken, 841 P.2d at 1129. We stated:

[plaintiff] has not shown, as would be necessary to justify a preliminary injunction under § 27-19-201(3), MCA, that renting the office space to another tenant during this litigation will tend to render the potential judgment ineffectual, because she has not shown that she has been damaged other than monetarily.

Dicken, 841 P.2d at 1129.

Dicken, and other cases cited by Appellant, are distinguishable from the instant case because none of those previous cases included allegations that the defendant’s actions would render the money judgment ineffectual. Dicken, 841 P.2d at 1128; see also New Club Carlin, Inc. v. City of Billings (1989), 237 Mont. 194, 772 P.2d 303; Boyer v. Karaqacin (1978), 178 Mont. 26, 582 P.2d 1173. The instant case represents different facts and allegations and thus a different issue. Had the lessee in Dicken alleged that the lessors threatened to secret or dissipate their assets then Dicken would be analogous to the instant case. To apply Dicken or other similar cases to the instant case would ignore the substance of Respondent’s allegations that Appellant threatens to make himself judgment proof and thereby irreparably harm Respondent’s ability to recover damages.

Our holding in this case does not reverse previous holdings that harm which can be remedied with an award of money is not considered irreparable harm. Recovery of money damages is available in an action at law without resort to equity. New Club Carlin, 772 P.2d at 305; Boyer, 582 P.2d at 1177. This case presents a new issue not previously addressed. That is, is injunctive relief appropriate in an action at law for monetary damages if it is alleged that the defendant threatens to, or is about to secret or dissipate his/her assets in order to thwart any monetary recovery by the plaintiff, thereby irreparably injuring the plaintiff. In the instant case we are dealing with unique facts where Appellant threatens to make his assets unavailable and thereby render a judgment worthless. Our holding, and the above four-part test, apply only in cases where a party seeking money damages alleges that the defendant is hiding or dissipating his/her assets in such a manner that a money judgment will be ineffectual and/or the plaintiff will be irreparably injured. Section 27-19-201(2) or (3), MCA.

Issue II

Is Appellant entitled to affirmative relief for improper pleadings and wrongful issuance of the temporary restraining order and preliminary injunction?

Appellant raises numerous arguments about defects regarding procedural and substantive aspects of the temporary restraining order. The temporary restraining order expired ten days after issuance and these arguments are now moot. Because we hold these arguments to be moot we need not consider Appellant’s contentions regarding alleged violations of Rule 11, M.R.Civ.P.

At this time it is also inappropriate for us to consider alleged defects in Respondent’s complaint, or related alleged Rule 11 violations. With the exception of the preliminary injunction, the District Court’s rulings are interlocutory and not subject to our review until completion of the action.

Appellant contends that the District Court lacked jurisdiction to control Appellant’s assets in other states. Appellant cites to the fact that Respondent’s counsel mailed the District Court’s order granting the preliminary injunction to an investment company in another state. The act of a private attorney does not present an issue for which we may evaluate district court authority. Appellant does not present evidence that a Montana court exercised or attempted to exercise its jurisdiction outside of Montana. The temporary restraining order and preliminary injunction represented valid restrictions preventing Appellant from transferring certain assets. Appellant presents no justiciable question of jurisdiction.

Affirmed.

JUSTICES GRAY, HUNT, NELSON and WEBER concur.


source: Caselaw Access Project

author: JUSTICE WEBER JUSTICE LEAPHART

license: Public Domain

text:
    WILLIAM E. BRIDGER and MARY A. BRIDGER, Plaintiffs and Respondents, and ROGER C. TODD, JUDITH N. TODD and JEAN L. TODD, ROBERT EVANS, GLEN M. HARGROVE, BETTY RAE HARGROVE, MICHAEL WOLD, LORENIA M. WOLD, and EARL WESLEY HARGROVE, Plaintiffs by Intervention and Respondents, -v-JACKSON L. LAKE, JR., LYNNE M. BLACKBURN, a/k/a LYNN M. McDONALD, BURLINGTON NORTHERN RAILROAD COMPANY, a Delaware corporation, MONTANA RAIL LINK, INC., a Montana corporation, Defendants, and THE STATE OF MONTANA, ALICE MINA LAKE, The Personal Representative of the ESTATE OF JOHN LUDWELL LAKE, Deceased, and All Persons Unknown, Defendants and Respondents. and JACKSON L. LAKE, JR., Third Party Plaintiff and Respondent, -v-LYNNE M. BLACKBURN, a/k/a LYNNE M. McDONALD, Third Party Defendant and Appellant.
    No. 94-404.
    Submitted on Briefs January 26, 1995.
    Decided May 17, 1995.
    52 St.Rep. 395.
    896 P.2d 406.
    271 Mont. 186.

      For Appellant: Brenda Riley Cole, Swandal, Douglass, Frazier & Cole, Livingston.
    For Respondent: Leanne M. Schraudner, Schraudner & Hillier, Bozeman (Bridgers, Evans, Hargroves and Wold); Karl Knuchel, Livingston (Lakes); David W. DePuy, DePuy Law firm, Livingston (Todds)
   JUSTICE WEBER

delivered the Opinion of the Court.

This matter came before the District Court of the Sixth Judicial District, Park County, on motion for summary judgment. The court granted summary judgment to plaintiffs. We affirm.

We restate the issues as follows:

I. Did the District Court err in granting summary judgment on the issue of whether an easement had been created?

II. Did the District err in concluding that the easement had not been extinguished?

III. Did the District Court err in concluding that McDonald had actual and constructive knowledge of the claimed easement?

IV. Did the District Court err in basing its decision upon an unrequested private viewing of the property in question?

In May of 1979, Lynn McDonald (McDonald) purchased a 4.592 acre parcel of real property located approximately ten miles west of Livingston, Montana, from Gerald R. Stafford, Frances R. Stafford, Alfred Mack Stiff, and Vivian Stiff. Due to the construction of 1-90, the property was subject to a highway right of way easement granted in 1975 to the State of Montana for a “Dozer Road.”

McDonald did not view the property before she bought it, nor was she represented by counsel during the sale. McDonald claims that she had no actual notice that any landowner claimed any right under the 1975 “Dozer Document” or under any other agreement or document. She contends that when she purchased the property, she believed the Dozer Road to be abandoned and terminated at the eastern boundary of the property. Since purchasing the land, she was informed by the seller that the seller had given the Todds permission to cross the property. Also since purchasing the land, McDonald herself has given various parties permission to cross over the property in the vicinity of the disputed easement.

Landowners William Bridger and Mary Bridger (the Bridgers) filed a complaint dated December 12, 1990, when their use of the easement was denied. The complaint also involved disputes relating to the use of railroad crossings and breach of warranty claims against the seller of the land which the Bridgers purchased near the property. The action was bifurcated and the present action deals exclusively with the contested easement across McDonald’s land.

Subsequent to the filing of the Bridger complaint, the court granted leave for the following landowners to intervene in the action: Roger C. Todd, Judith Todd, Jean Todd, Robert Evans, Glen Hargrove, Betty Rae Hargrove, Michael Wold, Lorenia Wold, Earl Hargrove (referred to along with plaintiffs and Jackson Lake Jr. as landowners). The following parties were named as defendants in the action: Jackson L. Lake, Jr., Alice Lake, the personal representative of the Estate of John Ludwell Lake, deceased, the State of Montana, Burlington Northern Railroad, Montana Rail Link. Jackson Lake, Jr. also filed a cross-claim against McDonald.

On February 25, 1994, the court heard arguments on the motions for partial summary judgment filed by plaintiffs, plaintiffs by intervention, and defendants Jackson L. Lake, Jr., Alice Lake, and the personal representative of John Ludwell Lake, deceased. The court entered an order on May 6, 1994, granting summary judgment to all parties against McDonald.

In its May 6, 1994 and July 8, 1994 orders, the District Court determined that the State of Montana held an access easement across McDonald’s property for the benefit of the public as well as the adjoining landowners. The court determined that McDonald had both constructive and actual notice of an easement and could not now object to its use. McDonald appeals the court’s judgments.

I.

Did the District Court err in granting summary judgment on the issue of whether an easement existed?

Summary judgment is only appropriate if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Rule 56, M.R.Civ.P. Appellant argues that a genuine issue of material fact exists as to whether an easement was created and to what extent the servient estate is burdened. Respondent landowners argue that the granting document is clear on its face and, therefore, summary judgment as to the easement’s existence and nature is appropriate.

A review of the record in this case reveals a granting document filed May 9, 1975. This document grants to the State of Montana a “right of way easement.” The grantors of this easement are McDonald’s predecessors in interest. That instrument states:

Gerald R. Stafford, Frances L. Stafford, Alfred M. Stiff, and Vivian E. Stiff of Bozeman, Montana for and in consideration of the sum of ONE DOLLAR ($1.00) lawful money of the United States to THEM in hand paid by the State of Montana, the receipt whereof is hereby acknowledged, do hereby grant, bargain, sell and convey unto the State of Montana, an easement and right of way for the construction, of a Dozer Road, over, across, and the right of entry upon and occupation of lands, and the right to take therefrom such earth, gravel, stones, trees and timber as may be necessary in the construction of said Dozer Road covering and embracing the following described land, to-wit:
In consideration of the grantors granting this easement, the Grantees shall construct the dozer road as above described and the grantees shall not be obliged to maintain the same ....
TO HAVE AND TO HOLD all of the above described and conveyed property unto the State of Montana, and its successors in interest as long as the same is used as a public highway.

The extent of a servitude is determined by the terms of the grant... by which it was acquired. Section 70-17-106, MCA. In other words, the breadth and scope of an easement are determined upon the actual terms of the grant. Titeca v. State of Montana (1981), 194 Mont. 209, 634 P.2d 1156. Here the “TO HAVE AND TO HOLD” language determines the breadth and scope of the easement to be that of a “public highway.”

While McDonald argues that the granting document is ambiguous because of its use of the word “Dozer Road” when describing the easement, she presented nothing to the District Court to prove that the easement was anything other than an easement for a public highway as stated in the granting document. McDonald presented only her own affidavit which says she talked to experts and that they told her that a dozer road was a temporary construction. McDonald had the burden to overcome the terms of the 1975 granting document. She had to show that issues of material fact existed. She did not meet her burden but produced only hearsay evidence contained in her own affidavit.

We hold that the District Court did not err in granting summary judgment to the landowners on the existence of the easement.

II.

Did the District err in concluding that the easement had not been extinguished?

McDonald argues that if an easement existed it had long since been abandoned. The landowners contend that the easement is a public one and cannot be extinguished through non-use.

Section 60-4-208, MCA, clearly states that “[e]very ... state highway once established must continue until abandoned or vacated by operation of law or by judgment of a court of competent jurisdiction or by a proper order of the commission.” Mere non-use of the roadway will not cause it to cease to exist as a public roadway:

Landowners contend that the County abandoned all but 60 feet of the right-of-way. ... One of the elements necessary to prove abandonment of public property by governmental entities is a showing of a clear intent to abandon. The conduct claimed to demonstrate this intent must be of character so decisive and conclusive as to indicate a clear intent to abandon .... The conduct must be some affirmative official act, and not mere implication. Mere nonuse, even for extended periods of time, is generally insufficient by itself, to indicate an intent to abandon. ... [I]t has been held that the rights of the public in its highways cannot be lost by acquiescence in the use or occupation thereof by individuals, even though such highways have not been opened or used.

Baertsch v. County of Lewis and Clark (1992), 256 Mont. 114, 845 P.2d 106, 110-111.

McDonald presented no evidence to the District Court to support her contention that the easement was abandoned. McDonald failed to meet her burden of showing that questions of material fact existed.

We hold the District Court did not err in granting summary judgment that the easement had not been extinguished.

III.

Did the District Court err in concluding that McDonald had actual and constructive knowledge of the claimed easement?

McDonald argues that she bought the land in May of 1979 but did not know that an easement was alleged to exist until 1986. The landowners argue that she had constructive and actual notice of the easement.

The 1975 granting document was filed and constituted constructive notice to all subsequent owners of the Stafford and Stiff lands:

Every conveyance of real property acknowledged or proved and certified and recorded as prescribed by law, from the time it is filed with the county clerk for record, is constructive notice of the contents thereof to subsequent purchasers and mortgagees.

Section 70-21-302(1), MCA.

The District Court referred to other documents that also evidence an easement, including McDonald’s own deed to the land which clearly references an easement to the State of Montana. Her warranty deed specifically referred to the certificate of survey on file which plainly outlined the easement and stated the conveyance was subject to it. McDonald’s title policy stated that her property was subject to a:

16. Right of Way Easement dated April 15, 1975, granted to the State of Montana for the right to construct a Dozer Road over, across, and the right of entry upon and occupation of lands, and the right to take therefrom such earth, gravel, stones, trees, and timber as may be necessary in the construction of said Dozer Road across a tract of land in W1/2SE1/4 of Section 17, Township 2 South, Range 8 East, M.P.M., Park County, Montana; by instrument recorded May 9, 1975, at 1:13 P.M. in Roll 11, Pages 1280-1282, records of Park County, Montana.

McDonald had notice at least from May 30, 1979 when the aforementioned title policy was issued. Even if, as McDonald argues, she purchased the property before she obtained the title policy, she at least had notice of the easement in 1979, many years before the activities concerned in this action.

McDonald testified in her own deposition that when she viewed the property on May 4 or 5,1979, at the time she paid Gerald Stafford for the property, she saw the road and the fence. A subsequent purchaser of a servient tenement is bound to take notice of rights that may be evident upon an inspection of the premises as well as those that may be learned by an inspection of the records. Shalimar Association v. D.O.C. Enterprise, Ltd. (1984), 142 Ariz. 36, 688 P.2d 682.

We conclude that the landowners met their burden to show that McDonald knew or should have known that an easement existed. McDonald has provided no facts to refute this. We, therefore, hold that the District Court did not err in granting summary judgment that McDonald had constructive as well as actual notice of the easement.

IV.

Did the District Court err in basing its decision upon an unrequested private viewing of the property in question?

McDonald argues that the judge should not have viewed the property in question without having been requested to do so by the parties. However, this was not raised at the District Court level. Failure to object to issues at the District Court will prevent appellants from raising the issue on appeal. Matter of Certain Justice Court Expenses (1994), 264 Mont. 510, 872 P.2d 795.

We do not consider the issue on appeal.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT and NELSON concur.

JUSTICE LEAPHART

dissenting.

I respectfully dissent from the Court’s opinion. In affirming the grant of summary judgment, the Court ignores questions of fact regarding the language in the easement document. The Court examines the granting document’s establishment of “an easement and right of way for the construction, of a Dozer Road .... as long as the same is used as a public highway” but does not further consider the meaning of this grant or whether the property was used as a public highway. Because these questions of fact must be answered in order to resolve issues one and two, summary judgment was improper.

The easement in question was granted to the state for construction of a “Dozer Road.” The Court concludes that “McDonald presented nothing to the District Court to prove that the easement was anything but an easement for a public highway as stated in the granting document.” The granting document states:

Gerald R. Stafford, Frances L. Stafford, Alfred M. Stiff, and Vivian E. Stiff of Bozeman, Montana for and in consideration of the sum of ONE DOLLAR ($1.00) lawful money of the United States to THEM in hand paid by the State of Montana, the receipt whereof is hereby acknowledged, do hereby grant, bargain, sell and convey unto the State of Montana, an easement and right of way for the construction, of a Dozer Road, over, across, and the right of entry upon and occupation of lands, and the right to take therefrom such earth, gravel, stones, trees and timber as may be necessary in the construction of said Dozer Road covering and embracing the following described land, to-wit:
TO HAVE AND TO HOLD all of the above described and conveyed property unto the State of Montana, and its successor or successors in interest as long as the same is used as a public highway. [Emphasis added.]

The Court relies upon § 60-4-208, MCA, for the proposition that state highways, once established, must continue until intentionally abandoned or vacated by operation of law. However, the Court fails to recognize that this particular granting document clearly abrogates that statutory rule by providing that the easement exists only so long as the road “is used as a public highway.”

The legal effect of the “Dozer Road” document cannot be determined until two questions of fact are resolved by a jury: 1) what is a “Dozer Road” — is it permanent or temporary in nature? 2) Has the road, in fact, been used as a public highway? If not, then, by the terms of the document, the easement has ceased to exist.

I would reverse the summary judgment and remand for a jury trial on these questions of fact.

JUSTICES TRIEWEILER and GRAY join in the foregoing dissent of JUSTICE LEAPHART.


author: JUSTICE WEBER JUSTICE LEAPHART, JUSTICE GRAY,

text:
    IN RE MARRIAGE OF KATHY DARLENE BLAIR, Petitioner and Respondent, -v-STEPHEN J. BLAIR, Respondent and Appellant.
    No. 94-521.
    Submitted on Briefs March 2, 1995.
    Decided May 18, 1995.
    52 St.Rep. 401.
    894 P.2d 958.
    271 Mont. 196.

      For Appellant: Marcia Birkenbuel, Great Falls.
    For Respondent: James D. Elshoff, Great Falls.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from a decision of the Eighth Judicial District Court, Cascade Comity, granting Kathy Darlene Blair’s motion requesting she be awarded her percentage interest in Stephen J. Blair’s military Special Separation Benefits. We affirm.

We restate the issues on appeal:

I. Did the District Court err when it found payments received by a member of the military under the Special Separation Benefits program an item of marital property or retirement benefits subject to division by the dissolution court?

II. Did the District Court lose jurisdiction to change the property settlement provisions of the Decree when it failed to rule on the motion within forty-five days from the time it was filed?

III. Was the District Court’s decision barred by res judicata?

IV. Did the District Court err when it did not order Stephen Blair to reimburse Kathy Blair for attorney fees?

The parties were married in 1980, and their marriage was dissolved by the District Court in 1993. The parties agreed to and signed a marital property settlement which the court found not unconscionable. The court divided the marital estate as the parties suggested. Part of the division was that Kathy Blair (Kathy) would receive a share of Stephen Blair’s (Stephen) future net disposable military retirement pay. Her share would be based on a percentage using the number of years they were married (twelve) and the actual number of years Stephen served on active duty. At that time, it was assumed Stephen would retire from the military after twenty years of active duty.

In 1994, Stephen was accepted into the Special Separation Benefits program (SSB) pursuant to 10 U.S.C. § 1174a. He voluntarily separated from his military service on October 1,1994, and agreed to serve in the Ready Reserve for a minimum of three years. He received separation pay based on years of service and current base pay. Stephen completed fifteen years of active service.

On March 24, 1994, Kathy filed a motion entitled Motion for an Order Modifying Decree as to Retirement Benefits. On May 6, 1994, she filed a motion to divide the retirement benefits Stephen received from the SSB program. The District Court held a hearing on the motions on May 6,1994, and awarded Kathy a percentage interest of Stephen’s separation pay.

Stephen appeals from the District Court’s September 21, 1994 decision.

I.

Did the District Court err when it found payments received by a member of the military under the Special Separation Benefits program an item of marital property or retirement benefits subject to division by the dissolution court?

Stephen argues that military retirement and SSB are defined by two different statutes and are two distinct groups of military entitlement. He then argues that 10 U.S.C. § 1408 specifically authorizes the division of military retirement pay as a marital asset in a proceeding for dissolution, but 10 U.S.C. § 1174a does not contain any language authorizing the division of SSB pay in a dissolution proceeding.

Stephen refers to McCarty v. McCarty (1981), 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589, in which the U.S. Supreme Court emphasized that the decision as to the availability of retirement pay to a spouse is left to Congress alone. After the McCarty ruling, Congress enacted the Uniformed Services Former Spouses’ Protection Act (Spouses’ Protection Act), 10 U.S.C. § 1408. This act authorizes a dissolution court’s division of “disposable retired or retainer pay.”

Stephen argues that his separation pay is not an early retirement benefit. He states that he is no longer eligible for military retirement because he terminated his active duty status prior to the number of years of service required for retirement, and that he received special separation pay in return for serving in the military’s Ready Reserve for at least three years following his separation from active duty.

Stephen also refers to Mansell v. Mansell (1989), 490 U.S. 581, 109 S.Ct. 2023, 104 L.Ed.2d 675, in which the U.S. Supreme Court ruled that state courts could not treat the portion of military retirement waived in order to receive Veteran’s Administrate on disability benefits as marital property divisible under the Spouses’ Protection Act. Stephen concludes, under McCarty and Mansell, state courts do not have authority to divide SSB pay as a marital asset unless Congress specifically authorizes such a division.

Kathy argues that the benefits provided under 10 U.S.C. § 1174a are clearly for purposes of retirement. She states that the SSB program is known as the “Early Out Program.” She points out that SSB benefits are awarded based on years served of active duty the same as other retirement benefits.

Kathy refers to Elzie v. Aspen (D.D.C.1993), 841 F.Supp. 439, 440, which found that SSB benefits provide incentive payments as inducements “to elect early retirement.” In addition, Kathy includes a copy of a brochure disseminated by the Department of Defense describing the voluntary separation incentives and what they mean to eligible military members. On page six of the brochure, in a question/answer format, it states:

What happens to VSI or SSB if I become retirement eligible?
Essentially, you pay it back from your retirement pay.

Kathy stresses the point that if a member voluntarily separates from active duty and then re-enlists, his or her retirement pay, not the current wages, would be tapped for reimbursement. Kathy then refers to the District Court in Cascade County which has twice ruled that SSB benefits are marital property and subject to division upon receipt. In re the Marriage of Daws, BDR 91-626, decided on July 1, 1992; and, In re the Marriage of Plunkett, BDR 90-520, decided on September 8, 1992.

The District Court found that Stephen and Kathy, prior to dissolution, negotiated the terms and freely entered into a Property Settlement Agreement stating “[Kathy] was awarded a share of [Stephen’s] future net disposable military retirement pay, to be calculated based upon [Stephen’s] actual number of years of service at the time of retirement.”

The District Court then likened SSB payments to military pensions because they are both based on longevity of service. The court stated that military pensions have long been declared in Montana to be a marital asset divisible upon dissolution; therefore, SSB payments are also divisible. Stephen and Kathy were married twelve of the fifteen years of his active service. Since a portion of Stephen’s separation benefits accrued during his marriage to Kathy, the court concluded that portion is divisible by the court upon dissolution.

Our standard of review of the District Court’s conclusions of law is to determine if the District Court’s interpretation of the law is correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-475, 803 P.2d 601, 603-604.

Stephen relies on McCarty and Mansell for the principle that federal law preempts state law in the treatment of military retirement. In McCarty, the U.S. Supreme Court held that the husband’s military retirement pay was not subject to California’s community property laws; and, therefore, could not be attached to satisfy a property settlement incident to the dissolution of marriage absent congressional authority to do so. McCarty, 453 U.S. at 228-232, 101 S.Ct. at 2739-2741, 69 L.Ed.2d at 603-605. However, in response to McCarty, Congress enacted Title 10 U.S.C. § 1408, known as the Former Spouses’ Protection Act. This act provided the congressional authority the Supreme Court found absent.

Further, the Court’s reasoning, in Mansell, is contrary to Stephen’s analysis. There, the Court reiterated its prior holding that state law preempts federal law in all domestic relations unless Congress positively enacts it. Mansell, 490 U.S. at 587, 109 S.Ct. at 2028, 104 L.Ed.2d at 684. Congress expressly excluded VA disability benefits received in lieu of military retirement from division by the state dissolution court. 10 U.S.C. § 1048(a)(4)(B). No such expression was enacted for military retirement waived to receive special separation benefits under 10 U.S.C. § 1174(a). The holding in Mansell clearly sets forth limitations on the holding in McCarty as applied to this case.

Further, we note the Department of Defense’s statement concerning a dissolution court’s ability to divide SSB payments. Page six of the Department’s brochure states:

How will state courts treat VSI/SSB in a divorce settlement?

The treatment of VSI or SSB is not dictated by Federal law. It will be up to the state courts to rule on the divisibility of these incentives.

We also note that a federal district court has stated:

The VSI/SSB program provides, to those members who qualify, incentive payments and medical and veterans benefits as inducements to elect early retirement.

Elzie, 841 F.Supp. at 440.

Like retirement, Stephen’s eligibility for the SSB program was based on the number of years he served in active duty. 10 U.S.C. § 1174a(c). As with retirement pay, Stephen’s separation pay was calculated according to the number of years he was in active service. 10 U.S.C § 1174a(b)(2)(A). Stephen could have remained on active duty for five more years and received retirement pay. Instead, he chose voluntary separation from the military and received his compensation at an earlier date. For the reasons we have stated, we characterize separation pay received under the Special Separation Benefits program (10 U.S.C. § 1174a) as an election for early retirement.

We hold that payments received by a member of the military under the Special Separation Benefits program are an item of marital property subject to division by the dissolution court.

II.

Did the District Court lose jurisdiction to change the property settlement provisions of the Decree when it failed to rule on the motion within forty-five days from the time it was filed?

Stephen states that under Rule 60(c), M.R.Civ.P., a motion for relief must be determined within the forty-five day period set out in Rule 59(d), M.R.Civ.P.; and that if the court fails to rule, the motion shall be deemed denied. He points out that the District Court did not rule upon Kathy’s motion to modify the Decree within the 45 day period and was, therefore, beyond its jurisdiction.

Kathy emphasizes that her intention was not to modify the Decree as was stated in the title of the original petition but rather to enforce the same. Kathy cites § 1-3-219, MCA: “The law respects form less than substance.” She argues that the substance of her motion clearly was for the District Court to force Stephen to pay to Kathy her share of his retirement benefits, albeit early, as their original agreement stated. She argues, further, that the property settlement agreement provided for enforcement remedies; therefore, the District Court’s jurisdiction continued in order to enforce the Decree.

The District Court found Stephen’s actions in denying Kathy part of his separation pay to be unconscionable. Based on that unconscionability, the court reopened the Decree and ordered that Stephen pay to Kathy her percentage interest in his SSB pay.

Although we agree with the result of the District Court’s conclusion, we note that the court mischaracterized the motion it had before it when it “reopened the Decree based on unconscionability.” The motion was, in substance, a motion to clarify the terms of the agreement and to subsequently enforce them. We have held that the power inherent in every court to enforce its judgments and decrees “is not to be limited by the time limits in Rules 59 and 60, M.R.Civ.P.” Smith v. Foss (1978), 177 Mont. 443, 447, 582 P.2d 329, 331. We conclude that the District Court was correct in treating the SSB program as early retirement divisible under its original Decree. We hold that the District Court did not lose its jurisdiction because it failed to rule on Kathy’s motion in excess of forty-five days.

III.

Was the District Court’s decision barred by res judicata?

On April 28, 1993, the District Court found that the “MARITAL SETTLEMENT AGREEMENT signed by the parties is equitable and not unconscionable, and should be incorporated into the decree of dissolution of marriage.” Here, the District Court concluded “[Stephen] has voluntarily and unilaterally upset that division, which has resulted in a substantial detriment to the reasonable future expectations of [Kathy] and which will give [Stephen] an immediate and substantial windfall.” (Emphasis added.) The court then found the result of Stephen’s actions to be unconscionable.

Stephen points to the Commissioner’s Notes to § 40-4-201, MCA, (Separation agreements) which says, “The court’s determination, in the decree, that the terms are not unconscionable, under the ordinary rules of res judicata, will prevent a later successful claim of unconscionability.” Stephen states further that case law clearly supports the application of the doctrine of res judicata to bar the reopening of a judgment on the grounds of unconscionability after a previous finding of a lack of unconscionability is made, and the agreement merged in the Decree. See Hopper v. Hopper (1979), 183 Mont. 543, 601 P.2d 29.

Stephen then lists the four criteria necessary to establish res judicata as set forth in Hopper.

(1) The parties or their privies must be the same;
(2) The subject matter of the action must be the same;
(3) The issues must be the same, and must relate to the same subject matter; and
(4) The capacities of the persons must be the same in reference to the subject-matter and to the issues before them.

Stephen argues that the four criteria are met, so the doctrine of res judicata barred a finding of unconscionability.

Kathy argues again that the District Court did not modify the Decree and did not reverse any findings. It enforced the division of Stephen’s “net disposable military retirement pay.” She contends that it was Stephen, through his announcement that he intended to retire early and deprive Kathy of her vested expectation interest in the future marital property, who attempted to modify the Decree/Property Settlement Agreement; thus, all the law cited by Stephen pertaining to the applicability of the doctrine of res judicata applies equally to him.

We state again that the motion was, in substance, a motion to enforce the Decree, not to modify the same. The District Court looked to unconscionability in order to reopen and then to modify the Decree under Marriage of Laskey (1992), 252 Mont. 369, 829 P.2d 935. In its conclusion, the District Court did not reverse its original finding of the settlement agreement as to unconscionability, but found Stephen’s attempt to “voluntarily and unilaterally upset” that agreement was unconscionable.

Stephen is correct in that the parties, the subject matter, and the capacities of the parties are the same as those under the original Decree. However, the most important of the four criteria for res judicata is the identity of issues which is not present here. In re the Marriage of Harris (1980), 189 Mont. 509, 513, 616 P.2d 1099, 1101.

In the first case, the issue was how to divide the marital assets. The District Court incorporated Stephen’s and Kathy’s Property Settlement Agreement into its order dividing the marital property as they suggested. Here, the issue differs in that the court was asked to determine whether or not payments Stephen received upon voluntarily separating from the military were the equivalent of “net disposable military retirement pay” under the Property Settlement Agreement per its original terms. This issue was not addressed in the Property Settlement Agreement nor in the Decree. On its face, the Decree did not identify whether or not voluntary separation pay was a form of net disposable military retirement pay. We conclude that the doctrine of res judicata does not apply where the issues were not previously addressed.

We hold that the District Court’s decision was not barred by res judicata.

IV.

Did the District Court err when it did not order Stephen Blair to reimburse Kathy Blair for attorney fees?

Kathy did not address this issue in her motions nor at the hearing. We will not address issues raised for the first time on appeal. Hislop v. Cady (1993), 261 Mont. 243, 250, 862 P.2d 388, 392. The issue of attorney fees was not raised at the District Court level and, therefore, can not be raised here.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICE HUNT concur.

JUSTICE LEAPHART,

specially concurring.

I concur in issues 2 and 4 of the majority opinion and specially concur in issues 1 and 3.1 write separately for two reasons. The first is that I believe there is greater support than that mentioned in the majority opinion for the proposition that Special Separation Benefits (SSB) may be properly included in any marital estate. The second is that another appellate court in a similar case reviewed and upheld a trial court’s order to enforce the decree based on the parties’ property settlement agreement.

First, an Arizona appellate court has determined that SSB payments may be included in the marital estate. In re Marriage of Crawford (Ariz. Ct. App. 1994), 884 P.2d 210. In Marriage of Crawford, the court noted that there is legislative history to support the inclusion of SSB benefits in the marital estate. Specifically, the court stated:

We find more relevant a 1990 House Report predating the enactment of the SSB program which in relation to the congressionally mandated “force drawdown” recommended “a comprehensive package of transition benefits to assist separating personnel and their families,” H.R.Rep. No. 665, 101st Cong., 2d Sess. (1990) (emphasis added), suggesting that equitable division of SSB benefits is not inconsistent with congressional intent.

Marriage of Crawford, 884 P.2d at 212. The Crawford court also recognized, as does the majority opinion, that the Department of Defense pamphlet regarding SSB payments indicated that state courts would determine the divisibility of such payments.

Next, in a case similar to this one, a Florida appellate court determined that a property settlement agreement should be enforced through the payment of early separation benefits. In Abernethy v. Fishkin (Fla. Dist. Ct. App. 1994), 638 So.2d 160, the husband and wife had entered into a property settlement agreement which provided that the wife would receive 25% of the husband’s military pension. The husband elected to leave the military before his retirement vested and was paid benefits under the Voluntary Separation Incentive Program (VSI). Abernethy, 638 So.2d at 161. The VSI and SSB programs are quite similar in that both provide qualifying military personnel who are voluntarily leaving the service before their retirement vests a payment, or payments, primarily based on the individual’s ending salary and years of service.

The Abernethy court first cited Marriage of Crawford in determining that the trial court had correctly concluded that the husband’s VSI benefits were subject to division. Abernethy, 638 So.2d at 162. The court went on to state that even assuming Congress had not authorized state courts to distribute these benefits, it would affirm the trial court’s order enforcing the parties’ property settlement agreement. Specifically, the court stated:

the trial court’s order does not purport to assign or award VSI benefits to the wife. Instead, the order merely requires the husband to pay to the wife 25% of every VSI payment immediately upon its receipt in order to insure the wife a steady monthly payment pursuant to the terms of the parties’ property settlement agreement.

Abernethy, 638 So.2d at 163.

In the present case, Kathy and Stephen entered into a property settlement agreement in which the parties agreed to a formula for the division of Stephen’s military retirement pay. Similar to the trial court’s order discussed in Abernethy, the District Court’s order in this case does not purport to assign Stephen’s SSB benefits to Kathy, but orders him to pay her 40% (the percentage arrived at through the calculation agreed on in the property settlement agreement) of these monies immediately after he receives them.

As the Arizona court recognized in Marriage of Crawford, federal law does not preclude state courts from dividing SSB benefits in a dissolution proceeding. However, even assuming arguendo, that it does, the fact is that Stephen, in the property settlement agreement, voluntarily agreed to divide his “net disposable military retirement pay.” The property settlement agreement did not tie the phrase to any federal statute or program. In my opinion, the phrase “net disposable military retirement pay” is broad enough to encompass Stephen’s voluntary early retirement under the SSB program. The District Court merely required Stephen to do that which he agreed to and that which the decree required.

JUSTICE GRAY,

dissenting.

I respectfully dissent from the Court’s opinion. The threshold and dispositive question in this case is whether the doctrine of res judicata bars the District Court from determining that the parties’ property settlement agreement was unconscionable. Because that question must be answered in the affirmative, I would reverse the District Court.

The marriage of Steve and Kathy Blair was dissolved via findings of fact, conclusions of law and decree of dissolution entered by the District Court on April 28, 1993. The court expressly concluded that Steve and Kathy’s Marital Settlement Agreement was not unconscionable and incorporated that Agreement into the decree of dissolution. One of the provisions of the Agreement was that Kathy would receive a share of Steve’s future net disposable military retirement pay, calculated as set forth therein.

Approximately seventeen months after the decree of dissolution, the District Court concluded, in essence, that the Agreement was unconscionable. Notwithstanding its determination that Steve’s military separation benefits were not “military retirement pay” covered by the Agreement, it reopened the decree to change the terms of the Agreement in order to provide Kathy with a share of Steve’s military separation benefits. I conclude that, because of its earlier conscionability conclusion, the doctrine of res judicata barred the court from making an unconscionability determination.

The criteria necessary to establish res judicata are well-established in Montana:

1. The parties or their privies must be the same;

2. The subject matter of the action must be the same;

3. The issues must be the same and relate to the same subject matter; and

4. The capacities of the persons must be the same in reference to the subject matter and issues before them. Hopper v. Hopper (1979), 183 Mont. 543, 557, 601 P.2d 29, 36 (citation omitted).

Here, Kathy does not respond to the res judicata issue and, thereby, does not directly controvert it. Nor, on the basis of the record before us, could she present a persuasive argument that the criteria necessary for the application of the doctrine of res judicata are not met here. There is no question but that the parties to the action are the same and that the subject matter — the conscionability, or lack thereof, of the Agreement — is the same. Likewise, the issues are the same, as are the capacities of Steve and Kathy in relation to the subject matter and the issues.

Hopper addressed the precise issue now before us: whether or not the district court had jurisdiction to determine the conscionability of the property settlement agreement which it had earlier, in the decree of dissolution, found to be not unconscionable. We affirmed the district court’s conclusion that a subsequent conscionability determination was prevented by the doctrine of res judicata. Hopper, 601 P.2d at 36. The same result is compelled here.

In its determination to reach the result it seeks in this case, the Court mischaracterizes the nature of Kathy’s motion in the District Court in order to recharacterize the District Court’s statement that it had “reopened the Decree based on unconscionability.” This Court’s statement that the motion was one to clarify the terms of the agreement and, thereafter, merely to enforce it, is nonsense. Kathy’s motion was a Motion for Order Modifying the Decree as to Retirement Benefits and it is this motion that the District Court granted, based on its unconscionability determination. The Court attempts to buttress its recharacterization of this case by concluding that the District Court “was correct in treating the SSB program as early retirement under its original Decree.” The problem with this Court’s “conclusion” is that the District Court did not treat the SSB program as early retirement under its original decree; had it done so, it would not have been necessary to “reopen the Decree.”

The salient facts are these: The parties’ Agreement entitled Kathy to a share of Steve’s military retirement pay. No alternative provision was made to deal with Steve’s separation from the military prior to retiring, even though Kathy testified that she understood during settlement negotiations that Steve might leave the military prior to completing the full term of military service necessary to be eligible for retirement. The Agreement expressly stated that its purpose was “to provide for the equitable and fair division of the property of the parties,” and that it constituted full and final settlement based upon full disclosure of property and income. The Agreement, by its terms, “shall not be modifiable.” This was the Agreement the District Court determined to be not unconscionable when it incorporated the Agreement into the decree of dissolution.

I would reverse the District Court’s determination that unconscionability permitted it to reopen the decree and modify the terms of the Agreement to give Kathy a share of Steve’s military separation benefits. The unconscionability determination is barred by the doctrine of res judicata, as is clear from Hopper and from the Commissioners’ Note to § 40-4-201, MCA, which states that “the court’s determination, in the decree, that the terms [of the agreement] are not unconscionable, under the ordinary rules of res adjudicata, will prevent a later successful claim of unconscionability.” In remaking this case to reach a particular result, this Court undermines the purpose, importance and legislatively-intended finality of property settlement agreements voluntarily entered into by the parties, found conscionable by the court and incorporated in the decree; the Court also creates both unnecessary and incorrect inconsistency in its own cases. I cannot agree. I dissent.

JUSTICE NELSON and JUSTICE TRIEWEILER join in the foregoing dissent of JUSTICE GRAY.