No. 82-148
I N THE SUPREME COURT O THE STATE OF E'IONTA?JA F
CAROLYN W. BEST,
P e t i t i o n e r and Respondent,
-vs-
WILLIAM BEST,
Respondent and A p p e l l a n t .
Appeal from: District Court of t h e Fourth J u d i c i a l D i s t r i c t , I n and f o r t h e County o f M i s s o u l a , The 13onorable John S. Henson, Judge p r e s i d i n g .
Counsel o f Record:
For Appellant:
P a t t e r s o n , M a r s i l l o , Tornabene & Schuyler, Missoula, Montana
F o r Respondent :
V i c t o r F. V a l g e n t i , M i s s o u l a , Montana
S u b m i t t e d on B r i e f s : O c t o b e r 1 4 , 1982
Decided: December 29, 1982 Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. On January 7, 1982, the Missoula District Court set aside the marital and property settlement agreement executed by the parties. Husband appeals. Husband and wife were married in Mississippi in 1957 and spent most of the twenty-two years of their married life in North Carolina, where husband practiced orthopedic surgery. Wife worked for a short time before their marriage as a secretary. The couple moved to the Missoula area with their seven children in 1973 and subsequently acquired some ranch property in the Nine Mile area west of Missoula. Husband did not practice medicine after the move to Montana.
In June 1978, husband contacted his Missoula attorney who prepared an agreement in anticipation of divorce. The agreement provided that wife was to receive mineral rights to the Nine Mile property, a late model vehicle, a parcel of land in North Carolina, and her personal effects. Husband would then pay her $20,000 cash and would make maintenance payments of $800 per month for a year, then $500 per month for two years. He would retain all other property and custody of the children. Wife would have liberal and unlimited visitation rights. The couple had been having marital difficulties which
continued after execution of the agreement. They underwent marital counseling until January 1979, when husband refused to participate further in the sessions and announced that he was proceeding with a dissolution. He made numerous repre- sentations to wife that this would be a way to work out the marital difficulties and that she would be taken care of
regardless of the specific terms of the dissolution decree. Husband again contacted Attorney 1 and both parties conferred with him. A marital and property settlement
agreement was prepared that superseded the agreement in anticipation of divorce. Attorney I felt it would be appropriate for wife to be advised by separate counsel. He referred her to a second Missoula attorney and made the ini- tial phone call to Attorney 2. At her meeting with Attorney 2, wife was accompanied by husband. Husband dominated the conversacion, argued with Attorney 2 over the role the lawyer should play in the dissolution, and objected to Attorney 2's attempts to acquire information about the
couple's assets. Wife was completely distraught and was unable to communicate with Attorney 2 at this meeting. No disclosure of assets was made other than statements by husband thac the couple owned land near Nine Mile and had some land in North Carolina. Attorney 2 advised wife that it was necessary to do a thorough background investigation
to fully determine the couple's assets before he could
recommend that she sign the marital and property settlement agreement. He ended the meeting when it became apparent that he would be unable to effectively represent wife's interests with husband present. Attorney 2 set up a second appointment with wife, but it was later cancelled.
On May 7, 1979, the parties executed the marital and property settlement agreement prepared by Attorney 1. Wife was to receive a late model automobile, her personal effects, and monthly payments of $1,00C~ for the first year ($500 if employed), $750 for the second year ($350 if employed), $500 for the third year ($200 if employed), and $200 per month for the remainder of her life or until remarriage. Husband retained all other real and personal property. Wife actually received a 1972 automobile and has had difficulty in obtaining some personal effects from husband. On November 15, 1979, wife moved to set aside the property settlement and the case was tried before the District Court. The District Court set aside the marital and property settlement agreement based upon fraudulent mis- representations husband made to wife regarding the par ties t
financial status, concealment of assets or financial condition from the court, and the inequity in apportionment
of the parties' assets. Husband presents two issues on appeal: 1. Whether the District Court erred in setting aside the property settlement agreement; and
2. Whether the property settlement agreement was inequitable and unconscionable. Husband argues, first, that there is not substantial evidence to support a finding that he either materially misrepresented or concealed assets or financial condition; that wife was at all times in a position to discover any information she desired concerning the finances of the mar- riage; and that wife was not under stress of such magnitude tnat it deprived her of her capacity to reason and fully
understand and appreciate the legally binding nature of the agreement. Therefore, he contends that the District Court erred in setting aside the property settlement. We disagree. The record provides ample evidence to support the District Court's findings that husband made fraudulent misrepresentations to wife with regard to the finality of t h e d i s s o l u t i o n and t h e f i n a n c i a l s t a t u s o f t h e m a r r i a g e and
t o s u p p o r t a f i n d i n g t h a t he c o n c e a l e d a s s e t s from b o t h w i f e and t h e c o u r t . Further, the record demonstrates t h a t wife d i d n o t have ready a c c e s s t o i n f o r m a t i o n on t h e i r f i n a n c i a l condition at the time of the dissolution. Finally, the
r e c o r d shows t h a t w i f e was u n d e r e x t r e m e s t r e s s , v i s i b l e t o b o t h A t t o r n e y s 1 and 2 , a t t h e t i m e t h e m a r i t a l and p r o p e r t y
s e t t l e m e n t a g r e e m e n t was p r e p a r e d .
During the course of the parties' marriage, they acquired considerable assets. These assets included p r o p e r t y h e l d by Genron C o r p o r a t i o n i n N o r t h C a r o l i n a , the Nine Mile p r o p e r t y , a h o u s e on Q u e e n S t r e e t i n M i s s o u l a , a s u b s t a n t i a l amount o f g o l d and s i l v e r c o i n s and b o u i l l i o n
h e l d i n S w i s s and London bank a c c o u n t s , and g o l d and s i l v e r c o i n s s e c r e t e d i n t h e Queen S t r e e t r e s i d e n c e . While t h e y
l i v e d i n North C a r o l i n a u n t i l s h o r t l y a f t e r t h e y moved t o
Missoula, w i f e was involved in the family's financial
p l a n n i n g and management. Although a n honors g r a d u a t e of t h e U n i v e r s i t y of ~ 4 i s s i s s i p p i , wife did n o t work outside the
home d u r i n g t h e m a r r i a g e , t h o u g h s h e d i d h e l p manage some o f t h e N o r t h C a r o l i n a r e n t a l p r o p e r t y h e l d by Genron C o r p o r a -
tion. She collected rents, did some bookkeeping, and handled some a d m i n i s t r a t i v e d e t a i l s for the property.
P r i m a r i l y , h o w e v e r , s h e was i n v o l v e d i n r a i s i n g t h e c o u p l e ' s seven children.
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No. 82-148
I N THE SUPREME COURT O THE STATE OF E'IONTA?JA F
CAROLYN W. BEST,
P e t i t i o n e r and Respondent,
-vs-
WILLIAM BEST,
Respondent and A p p e l l a n t .
Appeal from: District Court of t h e Fourth J u d i c i a l D i s t r i c t , I n and f o r t h e County o f M i s s o u l a , The 13onorable John S. Henson, Judge p r e s i d i n g .
Counsel o f Record:
For Appellant:
P a t t e r s o n , M a r s i l l o , Tornabene & Schuyler, Missoula, Montana
F o r Respondent :
V i c t o r F. V a l g e n t i , M i s s o u l a , Montana
S u b m i t t e d on B r i e f s : O c t o b e r 1 4 , 1982
Decided: December 29, 1982 Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. On January 7, 1982, the Missoula District Court set aside the marital and property settlement agreement executed by the parties. Husband appeals. Husband and wife were married in Mississippi in 1957 and spent most of the twenty-two years of their married life in North Carolina, where husband practiced orthopedic surgery. Wife worked for a short time before their marriage as a secretary. The couple moved to the Missoula area with their seven children in 1973 and subsequently acquired some ranch property in the Nine Mile area west of Missoula. Husband did not practice medicine after the move to Montana.
In June 1978, husband contacted his Missoula attorney who prepared an agreement in anticipation of divorce. The agreement provided that wife was to receive mineral rights to the Nine Mile property, a late model vehicle, a parcel of land in North Carolina, and her personal effects. Husband would then pay her $20,000 cash and would make maintenance payments of $800 per month for a year, then $500 per month for two years. He would retain all other property and custody of the children. Wife would have liberal and unlimited visitation rights. The couple had been having marital difficulties which
continued after execution of the agreement. They underwent marital counseling until January 1979, when husband refused to participate further in the sessions and announced that he was proceeding with a dissolution. He made numerous repre- sentations to wife that this would be a way to work out the marital difficulties and that she would be taken care of
regardless of the specific terms of the dissolution decree. Husband again contacted Attorney 1 and both parties conferred with him. A marital and property settlement
agreement was prepared that superseded the agreement in anticipation of divorce. Attorney I felt it would be appropriate for wife to be advised by separate counsel. He referred her to a second Missoula attorney and made the ini- tial phone call to Attorney 2. At her meeting with Attorney 2, wife was accompanied by husband. Husband dominated the conversacion, argued with Attorney 2 over the role the lawyer should play in the dissolution, and objected to Attorney 2's attempts to acquire information about the
couple's assets. Wife was completely distraught and was unable to communicate with Attorney 2 at this meeting. No disclosure of assets was made other than statements by husband thac the couple owned land near Nine Mile and had some land in North Carolina. Attorney 2 advised wife that it was necessary to do a thorough background investigation
to fully determine the couple's assets before he could
recommend that she sign the marital and property settlement agreement. He ended the meeting when it became apparent that he would be unable to effectively represent wife's interests with husband present. Attorney 2 set up a second appointment with wife, but it was later cancelled.
On May 7, 1979, the parties executed the marital and property settlement agreement prepared by Attorney 1. Wife was to receive a late model automobile, her personal effects, and monthly payments of $1,00C~ for the first year ($500 if employed), $750 for the second year ($350 if employed), $500 for the third year ($200 if employed), and $200 per month for the remainder of her life or until remarriage. Husband retained all other real and personal property. Wife actually received a 1972 automobile and has had difficulty in obtaining some personal effects from husband. On November 15, 1979, wife moved to set aside the property settlement and the case was tried before the District Court. The District Court set aside the marital and property settlement agreement based upon fraudulent mis- representations husband made to wife regarding the par ties t
financial status, concealment of assets or financial condition from the court, and the inequity in apportionment
of the parties' assets. Husband presents two issues on appeal: 1. Whether the District Court erred in setting aside the property settlement agreement; and
2. Whether the property settlement agreement was inequitable and unconscionable. Husband argues, first, that there is not substantial evidence to support a finding that he either materially misrepresented or concealed assets or financial condition; that wife was at all times in a position to discover any information she desired concerning the finances of the mar- riage; and that wife was not under stress of such magnitude tnat it deprived her of her capacity to reason and fully
understand and appreciate the legally binding nature of the agreement. Therefore, he contends that the District Court erred in setting aside the property settlement. We disagree. The record provides ample evidence to support the District Court's findings that husband made fraudulent misrepresentations to wife with regard to the finality of t h e d i s s o l u t i o n and t h e f i n a n c i a l s t a t u s o f t h e m a r r i a g e and
t o s u p p o r t a f i n d i n g t h a t he c o n c e a l e d a s s e t s from b o t h w i f e and t h e c o u r t . Further, the record demonstrates t h a t wife d i d n o t have ready a c c e s s t o i n f o r m a t i o n on t h e i r f i n a n c i a l condition at the time of the dissolution. Finally, the
r e c o r d shows t h a t w i f e was u n d e r e x t r e m e s t r e s s , v i s i b l e t o b o t h A t t o r n e y s 1 and 2 , a t t h e t i m e t h e m a r i t a l and p r o p e r t y
s e t t l e m e n t a g r e e m e n t was p r e p a r e d .
During the course of the parties' marriage, they acquired considerable assets. These assets included p r o p e r t y h e l d by Genron C o r p o r a t i o n i n N o r t h C a r o l i n a , the Nine Mile p r o p e r t y , a h o u s e on Q u e e n S t r e e t i n M i s s o u l a , a s u b s t a n t i a l amount o f g o l d and s i l v e r c o i n s and b o u i l l i o n
h e l d i n S w i s s and London bank a c c o u n t s , and g o l d and s i l v e r c o i n s s e c r e t e d i n t h e Queen S t r e e t r e s i d e n c e . While t h e y
l i v e d i n North C a r o l i n a u n t i l s h o r t l y a f t e r t h e y moved t o
Missoula, w i f e was involved in the family's financial
p l a n n i n g and management. Although a n honors g r a d u a t e of t h e U n i v e r s i t y of ~ 4 i s s i s s i p p i , wife did n o t work outside the
home d u r i n g t h e m a r r i a g e , t h o u g h s h e d i d h e l p manage some o f t h e N o r t h C a r o l i n a r e n t a l p r o p e r t y h e l d by Genron C o r p o r a -
tion. She collected rents, did some bookkeeping, and handled some a d m i n i s t r a t i v e d e t a i l s for the property.
P r i m a r i l y , h o w e v e r , s h e was i n v o l v e d i n r a i s i n g t h e c o u p l e ' s seven children. Sometime b e f o r e t h e move t o Montana, b a s e d on w i f e ' s research, husband and wife decided together to invest i n gold and silver. Accounts were opened in two S w i s s b a n k s and a London bank f o r t h a t p u r p o s e . A f t e r t h e move t o Montana, h o w e v e r , h u s b a n d g r a d u a l l y
but effectively assumed complete control of the family's finances. Wife knew o i t h e e x i s t e n c e of some p a r c e l s of
r e a l e s t a t e , b u t was n o t a w a r e o f t h e d e b t s t r u c t u r e o n t h e
property. For two o r t h r e e y e a r s p r i o r t o t h e d i s s o l u t i o n ,
wife had no access to either the Swiss or Missoula bank
accounts. When s h e a s k e d a b o u t t h e S w i s s a c c o u n t s , h u s b a n d
l e d w i f e t o b e l i e v e t h a t t h e y had b e e n d e p l e t e d f o r l i v i n g
expenses. For the last year of the marriage, wife was
c o m p l e t e l y e x c l u d e d from a l l f i n a n c i a l a f f a i r s t o t h e p o i n t
t h a t s h e was n o t a l l o w e d t o h a v e h e r own p e r s o n a l c h e c k b o o k
o r t o w r i t e c h e c k s on a n y f a m i l y a c c o u n t .
Sometime d u r i n g 1 9 7 8 , a p p r o x i m a t e l y $ 2 5 0 , 0 0 0 w o r t h o f
gold and silver coins mysteriously disappeared from the
f a m i l y home. W h i l e some o f t h e c h i l d r e n knew where p a r t o f
t h e c o i n s w e r e s t o r e d , o n l y h u s b a n d and w i f e knew w h e r e t h e
bulk of t h e c o i n s were h i d d e n . Husband c o n v i n c e d w i f e t h a t
i t would be futile to notify the a u t h o r i t i e s of the dis-
a p p e a r a n c e s i n c e t h e y c ou l d n o t g i v e even a rough e s t i m a t e
of when t h e c o i n s w e r e t a k e n and h e s t a t e d t h a t , "I r e a l l y
t h i n k t h e c h i l d r e n a r e b e t t e r o f f w i t h o u t a l l t h a t money."
Unknown t o w i f e , husband f i l e d a f i n a n c i a l s t a t e m e n t
in 1978 w i t h a Missoula bank. The statement disclosed
a s s e t s o f $ 8 0 4 , 5 0 0 w i t h no l i a b i l i t i e s e x i s t i n g a g a i n s t t h e
assets. A s e c o n d s t a t e m e n t was filed i n 1 9 8 0 t h a t showed
t h e v a l u e of t h e a s s e t s t o be $883,000. Neither statement
i n c l u d e d r e f e r e n c e t o t h e g o l d o r s i l v e r h o l d i n g s i n London
or i n S w i t z e r l a n d .
Throughout the period preceding the dissolution, as
the marital and property settlement agreement was being
prepared, husband represented to wife that she and the
c h i l d r e n would a l w a y s be w e l l t a k e n c a r e o f b u t t h a t h e d i d n o t want t o be t i e d t o a s p e c i f i c d o l l a r amount d u e them.
Be f u r t h e r induced h e r t o b e l i e v e t h a t t h e g o l d and s i l v e r c o i n s were d i s s i p a t e d , that it was necessary for him to
r e t a i n t h e remaining r e a l p r o p e r t y i n o r d e r t o s u p p o r t and educate the children, and that the divorce and property s e t t l e m e n t were temporary i n n a t u r e u n t i l t h e p a r t i e s c o u l d work o u t t h e p r o b l e m s b e t w e e n them.
I n September 1979 t h e p a r t i e s ' o l d e s t s o n r e t u r n e d t o Missoula from C a l i f o r n i a , where he had been attending school. A l t h o u g h i t was p l a n n e d t h a t h e was t o s t a y w i t h h i s f a t h e r i n t h e f a m i l y home, h e f o u n d o n a r r i v a l t h a t no a r r a n g e m e n t s had been made f o r him and h e s t a y e d w i t h h i s mother. On s e v e r a l o c c a s i o n s h e went t o t h e f a m i l y home t o
search for personal belongings t h a t had b e e n removed from h i s f o r m e r room. Some o f t h e items w e r e p a c k e d and removed from t h e house f o r s t o r a g e . Some h e f o u n d s c a t t e r e d a b o u t the house. In looking for these items, he entered his f a t h e r ' s room t o c h e c k b o x e s i n t h e c l o s e t . H e discovered
bank s t a t e m e n t s f r o m t h e S w i s s bank a c c o u n t s t h a t showed a
b a l a n c e i n e x c e s s o f $300,000 worth o f g o l d c o i n s on d e p o s i t shortly before the dissolution. The statements were
a d d r e s s e d t o a p o s t o f f i c e box i n Huson, Montana, w h i c h i s n e a r t h e Nine M i l e p r o p e r t y . The s o n a l s o d i s c o v e r e d a w i l l executed by husband within a month after he signed the
p r o p e r t y a g r e e m e n t , which e x c l u d e d h i s e l d e s t s o n and h i s third s o n from t h e w i l l . Husband had a t t h a t t i m e a l s o r e f u s e d t o pay t h e c o l l e g e expenses of h i s t h i r d son. Wife moved to set aside the property settlement a g r e e m e n t on t h e b a s i s o f f r a u d u l e n t m i s r e p r e s e n t a t i o n s by h u s b a n d a s t o t h e e x t e n t o f p r o p e r t y h e l d by t h e p a r t i e s ; t h e f i n a l i t y of the dissolution; h i s willingness t o support
and e d u c a t e t h e c h i l d r e n and t o p a s s p r o p o r t i o n a t e s h a r e s o f
the family estate to each child and to wife; and his
willingness to take care of wife financially. She a l s o
prayed for relief b a s e d upon t h e i n e q u i t y of the property
division considering the value of their property and the
e m p l o y a b l e s k i l l s p o s s e s s e d by e a c h p a r t y .
This Court has long recognized that it is t h e r u l e that a judgment must be regarded as final and conclusive
u n l e s s i t i s shown t h a t a p a r t y , by e x t r i n s i c o r c o l l a t e r a l
fraud, has prevented a f a i r submission of t h e matter. Hall
v. H a l l ( 1 9 2 4 ) , 70 Mont. 460, 467-468, 226 P. 469, 471. A
c o u r t of e q u i t y ' s power t o s e t a s i d e a d e c r e e o b t a i n e d b y
s u c h f r a u d is i n h e r e n t . P i l a t i v. P i l a t i (1979), Mont.
, 5 9 2 P.2d 1374, 36 S t . R e p . 619, 625. Extrinsic fraud
may c o n s i s t of a d e c e p t i o n p r a c t i c e d by a p a r t y i n k e e p i n g
another p a r t y i n ignorance. Pilati, 592 P.2d a t 1380, 36
St.Rep. at 627. See also, Bates v. Bates (1965), 1
Ariz.App. 1 6 5 , 400 P.2d 593, 595.
Husband a t t e m p t s t o d i s t i n g u i s h t h e c a s e a t h a n d f r o m
Pilati. I n P i l a t i t h e w i f e was m a r r i e d a t s i x t e e n y e a r s o f
age t o a thirty-five-year-old; s h e had o n l y a n i n t h g r a d e
?ducation while her husband held both bachelor's and
master's degrees, a n d h a d worked t o w a r d b o t h a Ph.D. and a
J.D.; h e was a h i g h s c h o o l t e a c h e r a n d r e a l e s t a t e a p p r a i s e r
and he handled a l l o f t h e f a m i l y f i n a n c e s t o t h e e x t e n t t h a t
he even purchased a l l g r o c e r i e s and c l o t h i n g . We held the
c o n c e a l m e n t of m a r i t a l a s s e t s by t h e h u s b a n d i n P i l a t i t o constitute fraud requiring reversal. P i l a t i is d i r e c t l y i n
p o i n t w i t h t h e case b e f o r e t h i s C o u r t . W h i l e w i t e h a d a c o l l e g e e d u c a t i o n , s h e had n o t worked
o u t s i d e t h e home. The f i n a n c i a l t r a n s a c t i o n s s h e h a d b e e n
r e g u l a r l y involved w i t h were g r a d u a l l y b u t c o m p l e t e l y t a k e n away f r o m h e r . S h e was e x c l u d e d f r o m a l l o f t h e f a m i l y ' s financial d e a l i n g s and was n o t e v e n a l l o w e d t o w r i t e c h e c k s
on a p e r s o n a l account. Husband f a l s e l y m i s r e p r e s e n t e d t o w i f e t h a t t h e S w i s s a c c o u n t s had b e e n d e p l e t e d a n d t h a t h e
would need to retain the remainder of the property to
s u p p o r t and e d u c a t e t h e c h i l d r e n . He represented t o her that she and the children would be supported, that they would b e l e f t i n h u s b a n d ' s will, and t h a t t h e d i s s o l u t i o n
was t e m p o r a r y i n n a t u r e . W i f e d i d n o t know t h e e x t e n t o f t h e f a m i l y f i n a n c i a l a s s e t s when t h e a g r e e m e n t was s i g n e d . Upon discovery of t h e concealment, she acted i n a timely
manner t o a s s e r t h e r r i g h t s . The D i s t r i c t C o u r t f o u n d t h a t w i f e was u n d e r d u r e s s a t
the t i m e t h a t t h e a g r e e m e n t was e n t e r e d and t h a t A t t o r n e y s 1
and 2 b o t h o b s e r v e d h e r s t r e s s . I t f o u n d , however, t h a t she
was u n d e r no more s t r e s s a t t h a t t i m e t h a n is c o n s i d e r e d normal under t h e g i v e n c i r c u m s t a n c e s . Husband r e l i e s on t h i s C o u r t ' s h o l d i n g i n H a d f o r d v.
Hadford (1981), Mon t . , 633 P.2d 1181, 1182, 38
S t .Rep. 1308, 1309. Hadford is clearly distinguishable. T h e r e b o t h h u s b a n d and w i f e w e r e r e p r e s e n t e d by i n d e p e n d e n t
counsel. The a s s e t s w e r e e v e n l y d i v i d e d . W i f e moved t o s e t a s i d e t h e agreement a f t e r n e a r l y f i v e y e a r s . Her g r o u n d s seemed to be unconscionability and fraud. No evidence supporting fraud was introduced. Nor was evidence of unconscionability presented. Her e v i d e n c e i n s t e a d was focused on the fact that the expenses of operating the laundromat she recelved in the property division were more
than she had anticipated. Here, wife and husband were both represented by husband's attorney and husband had concealed substantial assets. Husband's behavior since wife moved to set aside the agreement ratifies the District Court's finding of fraud. Husband has attempted to reconcile with wife but a kina1 reconciliation has always been conditioned upon the action being dropped. Husband has maintained a "lack of memory" on the status of the Swiss bank accounts, yet has refused to sign a release to allow the District Court to view records which would clarify the transactions. Husband did liquidate the silver holdings from the London account
and received over $35,000 in the transaction. The record also shows that wife was under extreme stress and was even characterized by Attorney 2 as "completely out of control." Without the guidance of the independent counsel such as that relied upon by the wife in dacrford, and relying upon the constant misrepresentations made by husband, wife could not freely enter into the property settlement agreement even though she appeared to Attorney 1 to be rational and aware of what she was doing in spite of the stress she was under. The District Court acted properly in setting aside the property agreement. Husband argues, second, that the property settlement was both equitable and conscionable under the circumstances. He contends that wife refused separate counsel and that she did not want more property than that listed in the agree- ment. He argues further that property settlements which are
knowingly and voluntarily entered should be upheld. Finally, he contends that a mere inequality in distribution of mari- tal property does not render an agreement unconscionable. Again, we reject his argument. Husband's first contention is based upon wife's refusal to seek separate counsel and the fact that she was advised by counsel when the agreement was entered. That argument is premised upon a full and open accounting of the finances of the marriage and wife's desire to ensure that husband could adequately care for the children. It fails. Husband made material misrepresentations which she relied upon. The District Court found that those misrepresentations alone resulted in an unconscionable and inequitable property division. The record supports that finding. Nor could wife knowingly and voluntarily enter an agreement founded upon such gross misrepresentations. Husband finally attempts to argue that mere inequality in the property division does not justify vacating that agreement. He relies upon Lawrence v. Lawrence (1982), Mont . , 642 P.2d 1043, 39 St.Rep. 548. There, wife re- ceived approximately $60,000 while husband received approxi- mately $400,008. The wife in Lawrence was represented by competent, knowledgeable, and independent counsel; she
entered the agreement with a fairly complete knowledge of the assets; and she refused to act despite advice that she could receive more property if she so desired. Here, again, wife did not receive independent counsel and did not have a complete knowledge of the concealed assets. Moreover, she did not receive even a fraction of the marital estate. Wife received only her personal effects, a 1972 automobile, and a decreasing scale of rnalntenance payments that provided only $200 per month by June 1982. She had only secretarial skills which had not been used in over twenty-two years with which to support herself. Husband was left with property that conservatively can be estimated in excess of $1,000,000. His representa- tions that he would support and educate the children and ensure that both they and wife received an appropriate portion of the family estate have remained unfulfilled. The Dlstrict Court's finding that the property settlement agreement was unconscionable and inequitable is supported by substantial credible evidence. This Court will not substi- tute its judgment for that of the trial court, which had the opportunity to observe the demeanor and candor of the witnesses. Husband has failed to demonstrate a clear preponderance of the evidence against the decision of the trial court. Tweeten v. Tweeten (1977), 172 Mont. 404, 406- 407, 631 P.2d 1141, 1143. Affirmed.
4Chief Justice . + ~ 4 4 % We concur: