No. 81-134
I N THE SUPREPIE COURT OF THE STATE O F MONTANA
1981
I N RE T H E ' W R R I A G E O F
DALE ELLYS LANCE,
P e t i t i o n e r and R e s p o n d e n t ,
-VS-
JOHN F E S L E R LANCE,
R e s p o n d e n t and A p p e l l a n t .
Appeal from: D i s t r i c t C o u r t of t h e F o u r t h 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 C o u n t y of M i s s o u l a , T h e H o n o r a b l e
James B. W h e e l i s , J u d g e p r e s i d i n g .
C o u n s e l of R e c o r d :
For A p p e l l a n t :
E. Eugene Atherton, K a l i s p e l l , Montana
For R e s p o n d e n t :
Ferguson & M i t c h e l l , Missoula, Montana
S u b m i t t e d on B r i e f s : September 14, 1981
Decided: O c t o b e r 30, 1981
Filed: QCT U! 1988
-p.YT
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the Court.
Appeal is from an order of the District Court, Fourth
Judicial District, Missoula County, dated December 31, 1980,
denying motions by John Fesler Lance to set aside the decree
of dissolution as to the property division, and for an
account by Dale Ellys Lance.
We affirm the District Court.
Dale Ellys Lance (now Willavize) filed a petition for
dissolution of her marriage to John Fesler Lance in the
District Court. On March 6, 1979, John Lance was personally
served with a petition. On March 29, 1979, his default was
entered for failure to answer or otherwise appear in the
action.
On that date, a decree of dissolution was granted. On
April 26, 1979, supplemental findings of fact were adopted
by the court and also on that date, a final decree of dissolution
was entered granting custody of the children to Dale and the
property out of the marital estate.
In the next several months, a flurry of motions were filed
in the District Court by John and Dale, none of which attacked
the validity or status of the decree of dissolution, but
concerned issues relating to his compliance with the provisions
of the decree. On August 9, 1979, the District Court ruled
on several of these motions. An order followed on August 13,
1979. No motion to vacate or modify the August 9, 1979
ruling was filed by John, nor was an appeal taken therefrom.
The succeeding filings in the District Court included
motions, countermotions, proceedings for contempt (John was
eventually jailed for contempt), and disputes with counsel.
On October 31, 1980, about 1 1/2 years after the entry of
the divorce decree, a hearing was had on motions presented
by John, acting without counsel, to reopen the divorce
decree, and to obtain an accounting from Dale with respect
to her handling of various items of his personal property
which had been in her care and custody. After the December
15, 1980 hearing, the District Court issued findings of fact
and conclusions, and therewith denied both of John's motions,
resulting in the January 2, 1981 order which is here appealed.
The District Court determined, in examining John's
motion to reopen the default judgment, that it was not
timely filed under Rule 60(b), M.R.Civ.P., and therefore
treated the motion as one asking to reopen the judgment on
the ground of fraud upon the court. The court then denied
the motion to set aside the final decree upon the ground of
fraud. The court also in the same order determined that
John had granted to Dale by gift all personal property
remaining to him after the entry of the final decree and
that he was not entitled to an accounting thereof.
The issues raised by John on this appeal follow:
1. The District Court erred in entering John's default
without first giving notice of intention to enter default.
2. The District Court erred in failing to determine
the net worth of the parties prior to distribution of the
marital estate.
3. In dividing the marital property, the District
Court erred in failing to determine the value of each asset
within the group being divided.
4. The District Court erred in awarding custody of
minor children to Dale without inquiring into the best
interests of the children.
5. The District Court erred in unfairly restricting
visitation rights.
6. The District Court erred in granting Dale spousal
maintenance.
7. The District Court erred in allowing attorney fees
subsequent to the hearing of August 9, 1979.
8. The District Court erred in determining that John
had transferred his property by gift to Dale.
However, we find the overriding issue, upon the deter-
mination of which all else contended for by John depends, is
whether the District Court properly refused to reopen the
default judgment.
It is obvious that John's motion to reopen the decree,
filed 1 1/2 years after the decree had been entered, is not
timely as a 60-day motion under Rule 60(b), M.R.Civ.P.
There are no time limits, however, to such a motion if, in
essence, the motion is one to reopen or vacate a judgment
because of fraud upon the court. Hopper v. Hopper (1979),
- Mont . , 601 P.2d 29, 33, 36 St.Rep. 1695, 1701; Selway
v. Burns (1967), 150 Mont. 1, 10, 429 P.2d 640, 645.
However the fraud, to constitute grounds for reopening the decree
must be extrinsic, that is, it must be such fraud as denied
the adversary an opportunity to have a trial or to fully
present his side of the case. Hopper, supra; Miller v.
Miller (1980), - Mont . - 616 P.2d 313, 318, 37 St.Rep.
,
1523, 1528; Deich v. Deich (1958), 136 Mont. 566, 580, 323
P.2d 35, 43.
Intrinsic fraud upon the court, that is representations
or concealments made during the court proceedings, assuming
they are false or fraudulent, are nevertheless not grounds
for reopening a decree or judgment. Miller, 616 P.2d at
319.
With respect to alleged fraud, John contends that Dale,
appearing at the hearing for the decree of dissolution, in
the absence of John, gave the only testimony in the case.
She used, it is contended, a personal financial statement of
the parties that was four or five months old; that while she
supported values from the financial statement in respect to
certain other properties of the marital estate, with respect
to the Nighthawk Ranch, owned by the parties, she gave her
opinion to the court that the ranch had a value of $400,000.
John contends that District Court, in relying upon this
figure, which John contends is exaggerated, made a distribution
of property to Dale out of proportion to the true value of
the assets of the marital estate.
On this line of attack, to reopen the property settlement
provisions in the decree, John must fail. The fraud, if it
be construed to be fraud, was intrinsic, not extrinsic.
Nothing about the actions of Dale in filing her petition,
serving the same upon John, and presenting her evidence to
the District Court after default had been entered, prevented
John in anyway from contradicting her evidence or from
having his day in court. He chose instead not to appear in
the action and in the absence of extrinsic fraud, that
choice binds him now to the decree that was entered. The
District Court properly refused to reopen the final decree
as to the property division.
When it is considered therefore that the decree of
dissolution has become final, and is now impervious to
John's attack upon the ground of fraud, most of the other
issues raised by John in this appeal, being but roundabout
attacks on the provisions of the decree itself, fade to
nothingness. It is too late now for him to attack the
decree on the ground that the District Court had failed to
determine the net worth of the parties, or abused its discretion
in failing to determine the value of each asset, or committed
error in awarding custody of the minor children, or in
setting forth visitation rights, or in granting spousal
maintenance. John not having appealed from the final decree
in timely fashion, the decree has become conclusive as to
all issues raised by the pleadings actually litigated and
adjudged as shown on the face of the decree and necessarily
determined in order to reach the conclusion announced. Meagher
Cty. Newlan Creek Water Dist. v. Walter (1976), 169 Mont. 358,
362, 547 P.2d 850, 853; Missoula Light & Water Co. v.
Hughes (1938), 106 Mont. 355, 366, 77 P.2d 1041, 1047.
In like manner, John's attack upon the allowance of
attorneys fees subsequent to the hearing of August 9, 1979
is not within our power of review, since that provision of
the District Court is not within the order filed January 2,
1981, which is appealed from here.
John, however, contends that the default decree should
be set aside because it was entered by the District Court
without John being first given notice of intention to enter
the default.
John relies upon Rule 55(b), M.R.Civ.P. which states
that if a party against whom judgment by default is sought
has appeared in the action, he shall be served with written
notice of the application for judgment at least 3 days prior
to the hearing.
John contends that he was entitled to such notice here
because after he was served with the petition and summons on
March 6, 1979, and on that date he wrote a letter to the
District Court judge and a second letter to the District
Court on March 15, 1979. At the hearing to set aside the
decree, the district judge indicated that he did not read
such letters, nor open them because he follows the policy of
not engaging in correspondence or reading correspondence
coming to him from litigants in a cause before him. The
letters themselves were not served upon counsel for the
petitioner, nor upon Dale, and no appearance fee of any kind
was paid in connection with the letters. John contends that
one or both of the letters can be deemed "an appearance,"
P
in which event the provisions in Rule 55(b) would apply.
The party served with a summons and complaint or petition
must within 20 days file a responsive pleading or motion in
the court where the action is pending. Rule 12 (a), (b),
M.R.Civ.P. The purpose of the rule requiring responsive
pleadings is to enable the court to define the issues, to
have the issues litigated and decided, and to assure finality
as to the issues decided in any judgment entered. Private
writings to a district judge, not filed with the clerk of
the court, and not served upon adverse parties or their
counsel do not constitute "an appearance" which may forestall
the entry of a default. Rule 55(a), M.R.Civ.P. requires
the clerk of the court to enter the default of a party who
has failed to plead or otherwise defend "as provided by
these rules." The three-day notice provision is applicable
only if judgment by default is sought against the person who
has appeared "in the action.'' Rule 55(b) (2), M.R.Civ.P.
Stated simply, John did not "appear" in this action to
oppose his wife's petition for dissolution. He was not
entitled to a three-day notice.
The second part of John's appeal is to that portion of
the order filed January 2, 1981, determining that John had
given to Dale "all personal property remaining to him after
the entry of the final decree . . ."
In his appeal brief, John admits that he made several
communications to the trial judge, his former wife and to
her attorney that if the decree of dissolution is binding,
he would leave to his wife and children all of his property
other than his clothing and personal effects. The District
Court ruled that John had in fact made a gift of his personal
property to Dale, but not his interest in the marital real
estate.
John now contends that it is obvious that when he made
the various representations of gifts to his wife and children,
it was because he could not live up to or abide by the terms
of the final decree and that his subsequent actions in not
complying with the terms of the decree of dissolution with
respect to the award of the marital assets demonstrated his
unwillingness or lack of donative intent to transfer the
personal property to Dale.
A gift is complete when the donor has an irrevocable
intention to give; delivery, actual or implied, occurs which
evidences the intent; and there is acceptance by the donee.
Patterson v. Halterman (1973), 161 Mont. 278, 282, 505 P.2d
905, 907. The intention may be defeated if there is fraud,
duress, undue influence or mental incapacity. Patterson,
supra, at 908; Cameron v. Cameron (19781, - Mont. - I
587 P.2d 939, 945, 35 St.Rep. 1723, 1730.
In this case John, among other actions indicating his
intent to make a grant of his property to his former wife,
delivered an informal writing subscribed by him and witnessed
by two individuals giving his portion of the property,
jointly owned with his former wife, to her. Upon that
instrument, she took possession of the property. Some of
the personal property would have been abandoned and lost had
she not taken steps to preserve the property upon the donative
intention expressed by John. The findings of a trial court
with respect to facts and issue may not be set aside by this
Court unless the findings are clearly erroneous. Rule
52 (a), M.R.Civ.P. We have no basis in the record in this
case to determine that the District Court was clearly erroneous
in finding that John had indeed made a gift of his personal
property to his wife. Because of that, he was not entitled
to an accounting of that property at a later time and his
motion for accounting was properly denied by the District
Court.
Before closing, we must observe that John has brought a
good deal of difficulty upon himself, his former wife, and
their children by his actions throughout this proceeding. He
chose not to consult an attorney, although he was advised to
do so to dispute the petition for dissolution, if that was
his intention; when he did retain counsel, he had disagreements
with such counsel and has had an on-again off-again relationship
with several counsel in this matter; his attempts to handle
his own case and to proceed without counsel were inept and
undoubtedly tried the patience of the district judge, who
withal protected John as far as possible from his ineptness;
he wrote a maze of correspondence and documents, villifying
the district judge, threatening kidnapping, and attacking
the character of his former wife; his actions in defiance of
the orders of the District Court were contemptuous, and in
fact he found himself jailed for contempt. All of this has
resulted in no benefit to himself and probably great detriment
to the happiness and welfare of his former wife and their
children and to the value of the marital estate. It is time
for John to recognize that he has come to the end of the
string, that his marriage to Dale is finally terminated and
that for the good of his children it is time to take some
new d i r e c t i o n s .
The judgment of t h e D i s t r i c t C o u r t i s a f f i r m e d .
--
Justice
W e Concur:
...............................
Justices
Mr. J u s t i c e D a n i e l J. Shea s p e c i a l l y c o n c u r r i n g :
I j o i n i n t h e r e s u l t r e a c h e d by t h e m a j o r i t y b u t n o t
i n a l l t h a t i s s a i d . Much of what i s s t a t e d h a s n o t h i n g
t o do w i t h t h e i s s u e s w e have been asked t o d e c i d e . Because
w e have n o t r e a c h e d t h e m e r i t s o f t h e p r o p e r t y d i v i s i o n , b u t
r a t h e r have d e c i d e d t h a t M r . Lance d i d n o t p r o t e c t h i s
i n t e r e s t by p r o p e r a p p e a r a n c e i n c o u r t t o c o n t e s t t h e w i f e ' s
demands and what t h e t r i a l c o u r t u l t i m a t e l y g r a n t e d , w e need
n o t go beyond t h a t r e c o r d t o p r o p e r l y d i s p o s e of t h e a p p e a l .
/--I ,-