No. 84-435
I N THE SUPREME COURT O THE STATE O MONTANA
F F
1985
I N RE THE MARRIAGE OF
K M WILSON,
E P
P e t i t i o n e r and Respondent,
-vs-
BETTY L. WILSON ,
Respondent and A p p e l l a n t .
APPEAL FROM: D i s t r i c t Court of t h e T h i r t e e n 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 County o f Y e l l o w s t o n e ,
The Honorable Diane G. B a r z , J u d g e p r e s i d i n g .
COUNSEL O RECORD:
F
For A p p e l l a n t :
Matovich & Addy; Carey E. Matovich a r g u e d , B i l l i n g s ,
Montana
For Respondent :
James J. S i n c l a i r , B i l l i n g s , Montana
Donald G a r r i t y a r g u e d , H e l e n a , Montana
Submitted: MY 22,
a 1985
Decided: J u n e 25, 1985
Filed: JUM L .: iggS
--
Clerk
Mr. Justice John C. Sheehy delivered. the Opinion of the
Court.
This is an appeal by Betty Wilson, hereinafter the wife,
from an order of the Thirteenth Judicial Eistrict,
Yellowstone County, denying her post-judgment motions to
amend findings of fact and have a new trial in a divorce
action. Kemp Wilson, hereinafter the husband, moved to
dismiss this appeal as barred by time limitations. We
entertain the appeal as timely, affirm the District Court's
denial of the post-judgment motions and remand for
determination of attorney fees.
Procedural Background
The husband filed for divorce on September 7, 1979. The
divorce decree was filed May 29, 1980. On June 10, 1980 the
wife filed Rule 52 and 59 motions to amend findings and have
a new trial. On May 3, 1984 she filed motions captioned
"Amended motion to Amend." These were an attempt to amend
the June 10, 1980 motions to amend, not the 1980 findings.
For clarity the first motions are referred to as the 1980
motion and the second motions to amend the first motion are
referred to as the May 1984 motion.
This procedure was repeated on June 22, 1984, after the
June 12, 1984 notice of entry of the amended decree. The
wife's attorney filed a motion to amend the findings of fact
and a motion for a new trial. On July 25, 1984, she
attempted to amend the June 22, 1984 motion. These motions
were deemed denied and this appeal followed. For clarity
these motions are referred to as the June 1984 motion.
The relevant procedural history of this case is:
Sept. 7, 1979 The husband filed for divorce.
May 2 9 , 1980 The divorce decree was filed.
June 1 0 , 1 9 8 0 - - motion.
The 1 9 8 0 The wife filed
motions to amend the findings (Rule
52) and to have a new trial (Rule
59).
July 1 8 , 1 9 8 0 The District Court denied the wife's
June 1.0, 1 9 8 0 motions as untimely.
Aug. 8, 1 9 8 0 The wife appealed to this Court.
May 6, 1982 This Court reversed the District
Court based on Rule 6(e) of
M.R.Civ.P.
I
Aug. 1 0 , 1 9 8 2 The wife moved. for a hearing on
her June 1 0 , 1 9 8 0 motions. The
husband moved to vacate based on
.
Rule 5 9 (d)
Oct. 1 2 , 1 9 8 2 The District Court denied the
husband's August 1 0 , 1 9 8 2 motion.
Oct. 2 9 , 1982 The husband appealed the District
Court's October 1 2 , 1 9 8 2 ruling to
this court.
Nov. 11, 1 9 8 2 The wife filed a motion to dismiss
the husband's appeal.
Aug. 2 3 , 1983 The Supreme Court dismissed the
husband's appeal.
Sept. 1 6 , 1 9 8 3 The husband answered interroga-
tories.
Nov. 2 1 , 1983 The husband filed consent to the
wife's June 1 0 , 1 9 8 0 motion to amend
findings and urged against her
motion for a new trial.
May 3, 1.984 - May
The 1 9 8 4 motion. The wife filed
an amended motion to amend the
findings and have a new trial.
June 7, 1 9 8 4 The District Court amended the
Divorce Decree to reflect the
changed findings sought June 10,
1980.
June 12, 1 9 8 4 Service of notice of entry of an
amended judgment.
June 2 2 , 1 9 8 4 The June 1 9
- - -8 4 motion. The wife
filed motions to amend the June 7,
1-984 decree and have a new trial.
July 2, 1 9 8 4 A hearing on the wife's June 2 2 ,
1984 motion was set for this date
but was continued.
July 19, 1984 The District Court vacated the
hearing.
July 35, 1984 The wife moved to amend her
June 22, 1-984 motion.
August 1, 1984 The June 22, 1984
motion was deemed denied.
Aug. 23, 1984 The wife appealed to this Court.
Issues
The husband raised three procedural issues, which he
argues bar this Court from reaching the merits of the wife's
appeal:
1. This appeal is too late and should be dismissed
because the June 1984 motion did. not toll the 30 days for
appeal.
2. On June 7, 1982, when this Court remitted the
District Court's order denying the 1980 motion, Rule 59(d)
time limits began to run.
3. The Montana Rules of Civil Procedure do not allow
amending a Rule 52 motion to amend findings of facts or a
Rule 59 motion for a new trial.
Because, as discussed below, we agree that the Montana
Rules of Civil Procedure do not allow amending Rule 52 and
Rule 59 motions after the time allowed for filing the
original motion we do not reach the issues raised on May 3,
1984, but two issues raised in the 1980 motion relating to
the 1980 decree are considered:
1) When shoul-d interest begin to accrue on the
retroactive lump-sum payment of the maintenance and child
support increase? From June 10, 1980 forward, or from
November 21, 1983 when the husband consented to the
modification, or from June 12, 1984 when the decree was
amended?
2) Was $2,500 in attorney fees to the wife an
unreasonably low award?
Procedural Issue 1. - - appeal timely?
Is this
On June 22, 1984, after entry of the June 7, 1984
amended divorce decree, the wife made two post-judgment
motions--a Rule 52 motion to amend findings of fact and a
Rule 59 motion for a new trial. These are the June 1984
motions. In Winn v. Winn (Mont. 1982), 651 P.2d 51, 39
St.Rep. 1831, this Court held that the Rule 59(d) time limits
also apply to Rule 52 motions. Rule 59(d) was changed in
October, 1984 but the prior rule a.pplies to this case.
These motions have short time limits because they toll
the appeal process. Under the old 59 (d), after service of
notice of entry of judgment a party had ten days to serve a
Rule 52 or 59 motion. A district court had to notice a
hearing within ten days of the motion but the hearing could
be continued for up to 30 days. The district court had to
rule within 15 days of the hearing or the motion was deemed
denied. The motion was also deemed denied if no hearing was
held within ten days of the motion or, if continued, within
30 days from the continuance. Winn page 54. The moving
party then had 30 days to appeal.
Applying those rules this appeal is timely. After June
22, 1984, computing 10 days per Rule 6, the District Court
could have scheduled. a hearing up to July 2, 1984 and did
so. The Court could have continued the hearing until August
1, 1984; it continued the hearing to July 26, 1984 but
vacated that hearing date on July 19, 1984. On August 1, not
July 19, 1984, the motion was deemed denied and the wife had
30 days in which to appeal. This appeal is timely because
August 23, 1984 was within 30 days of the denial. of the
motion. As discussed below, the May 1984 motions were not
timely, but that goes to the merits, not the timeliness, of
this appeal.
Procedural Issue -
2. -- 59(d) time limits begin -
Did Rule to
- - - - - - when the wife's 1980 motions were remitted?
run June 7, 1982
The husband raises this issue but it was decided in
cause number 82-452 by an order from this Court dismissing
the husband" appeal and fining him for delay. The husband
contends the Court never reached the merits but the order
stated "The Court finds that the appeal is without
substantial or reasonable grounds, and apparently for
purposes of delay."
Procedural Issue 3. May the wife amend - - - 59
her Rule
Motion - - - - 52 motion?
or her Rule
Generally, motions to amend motions are only allowed
during the time the original motion may be made. Situations
may arise where justice requires that a party be allowed to
amend a motion for a new trial but this is not one of them.
The wife made her May 1984 motion to amend. her June 10, 1980
motion after the husband consented to her original motion to
amend. The May 1984 motion was actually an effort to retry
the divorce property settlement on new issues.
- -59 Motions
Rule
Montana Rule 59(a) differs from Federal Rule 59 because
it states " . . .A motion for a new trial shall state with
particularity the grounds therefor, it not being sufficient
merely to set forth the statutory grounds, - - motion may
but the
amended, upon reasonable notice, to and including the
- -of hearing the motion."
time This language results from
Halsey v. Uithof (1975), 166 Mont. 319, 532 P.2d 686, in
which plaintiff's motion for a new trial was granted and
defendant appealed because the motion merely recited the
statutory grounds for new trial in a bench trial. The court
agreed that the motion must state the particular grounds for
new trial, not just statutory language, but allowed the
motion to be amended.
In State court, because of the unique language in
Montana's rule, a Rule 59 motion can be amended up to the
time of a hearing to state a particular reason why a new
trial should be granted, but that is not the situation here.
The wife has never stated her grounds for a new trial or
added additional grounds and her May 1984 motion was not an
effort to do so.
Rule 52 Motions
The Montana rules say nothing about amending Rule 5%
motions to amend findings of fact. No amendment can be made
after expiration of the ten day period for making the
original motion because there is no statutory basis for
amending a Rule 52 motion. This analysis is supported by
VL5A Moore's Federal Practice T 52.11[11 at 52-192 states:
"Rule 6 (b), which provides for the enlargement of
time periods, originally stated that the court
could not enlarge the time periods in Rule 59, but
contained no express limitation on the ten-day time
-
period in rule 52(b). In Leishman v. Associated
Wholesale Electric Co., the Supreme court held that
Rule 6(b) allowed the district court to enlarge the
time to make a motion for amended findings and
judgment beyond the ten-day period of Rule 52 (b) .
However, the Leishman rule was obviated by the 1946
amendment to Rule 6(b), which states that the court
may not extend the time for taking any action under
Rules 50(b), 52(b), and (b), (d) and (el. Since a
timely motion under Rule 52 (b) operates to destroy
the finality of a judgment, just as do
timely motions under Rules 59 and 50(b), the 1946
amendment to Rule 6 (b) conformed Rules 52 and 59.
Thus, in the interest of promoting the fina.lity of
judgments, it is now the rule that the ten-day time
period of R.ule 52 (b) is not subject to
enlargement."
Moore is referring to extending the ten day time period
to file the original motion but the same logic precludes
allowing amendments to motions after it would be too late to
file the original motion.
The Ma-y 1984 motion is a procedural attempt to
relitigate the property and maintenance award with new
issues. It was not the intent of Rules 52 or 59 to allow a
party to inject a new issue after judgment. Entertaining the
wife's May 1984 motion would allow a post-judgment motion to
suspend the finality of a judgment from June 10, 1980 to June
7, 1.984. This conflicts with two important considerations
regarding post-judgment motions--a judgment should be a
prompt, final resolution of a dispute and disputes should be
resolved on their merits.
However, as discussed. above, this is a timely appeal of
the District Court's June 7, 1984 amended divorce decree
granting the June 10, 1980 motion to amend findings. The
issues relating to 1980 can be considered.
Issue 1--Interest - Retroactive payment - child support and
on of
maintenance.
The 1980 divorce decree awarded the wife maintenance of
$900 per month. In her 1980 motion she sought maintenance of
$1,250 until January 1, 1986, $625 per month until June 1,
1987 and $500 per month until remarriage or court order. The
husband consented to this in November of 1983 and it was
decreed by the court in June 1984. The husband also
consented to child support of $250 per child per month, a $50
increase. The District Court made both increases prospective
from June 1984. The wife sought retroactive application.
Retroactive application amounted to $17,150 in maintenance
and $6,650 in child support.
The husband contended throughout the appeal process that
the 1984 amended decree did not apply from the date of the
wife's 1980 motion. During oral argument to this Court, the
husband conceded that the 1984 decree relates back to 1980
therefore the wife is entitled to $17,150 in maintenance and
$6,650 in back child support. The wife incurred the expense
of appeal to obtain this eleventh hour concession.
If a judgment is effective from the entry date and any
changes to that judgment relate back to that date, it follows
that interest is assessed from the date of judgment. In Re
the Marriage of Knudson (Mont. 1981), 622 P.2d 1025, 38
St.Rep. 154, interest was awarded from the date of judgment.
A husband had limited his divorce appeal to a portion of the
decree and argued that his former wife could have executed on
the other portion. This Court stated, "Once a person is
liable for a money judgment, and payment is not made, the
person entitled to the judgment is further entitled to a fair
rate of interest." Pg. 1027. In this case the question is
when was the husband liable for the increased child support
and maintenance because interest accrues from that point.
The wife sought the increa-se in June 1980. At that time
she attempted to establish that these increased amounts were
her current needs. The husband.'^ consent to the retroactive
payment makes it unnecessary for this Court to consider the
merits of the wife's request for modification; the husband's
consent indicates that the June 10, 1980 decree incorrectly
determined the amount of necessary child support and
maintenance. While forced to subsist on the inadequate
awards, the wife immediately sought to correct them.
Unfortunately this took approximately four years. During
this time the husband had use of the money. The 1983 consent
and the 1984 amended. decree are corrections of the 1980
judgment that establish the husband's correct liability from
1980 forward. The wife should receive interest from the time
the husband was correctly liable for the amount--June 10,
1980.
Issue 2--Attorney Fees.
The District Court awarded the wife $2,500 in attorney
fees although she submitted an affidavit that her actual fees
were $13,283. The wife contends the District Court acted
arbitrarily and abused its discretion because the $2,500
award is not supported by su.bstantia1 evidence. She argues
she is entitled to a higher attorney fee award because the
two prior appeals in the case "were necessitated by the
actions of Mr. Wilson'' and because the husband's financial
resources are much greater. The husband responds that the
District Court erred in awarding the wife any attorney fees.
We agree with the District Court that the wife is
entitled to attorney fees. Section 40-4-110, MCA, provides
that a district court, after considering the financial
resources of both parties, may order one party to pay a
reasonable amount to the other party for attorney fees
including sums for legal services rendered after entry of
judgment. In this case there is substantial evidence that
the husband's financial resources far exceed the wife's and
an award of attorney fees is necessary. The District Court
also determined that attorney fees should include the cost of
the various appeals to this Court. We agree and include the
cost of this appeal. In Re the Marriage of Grace (Mont.
1982), 643 P.2d 1188, 1192, 39 St.Rep. 791, 795.
The District Court erred in calculating $2,500 as the
amount of the wife's attorney fees. This is not supported by
substantial evidence. We remand for a hearing to determine
an adequate attorney fees. That should include the wife's
costs for appeals, including this appeal.
Except as ordered to be modified herein, the judgment of
the District Court concerning post-judgment motions is
affirmed. The cause is remanded to the District Court for
further proceedings in accordance with this opinion.
We Concur:
,
"
Chief Justice
-
istrict Judge, sitting for Justice
John C. ~arrison,/
Judge, sitting for Justice L . C.