No. 84-366
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
IN RE THE MARRIAGE OF
JOHN C. HOYT,
Petitioner, Counter-Respondent and Respondent,
and
HELEN J. HOYT,
Respondent, Counter-Petitioner and Appellant,
APPEAL FROM: District Court of the Ninth Judicial District,
In and for the County of Glacier,
The Honorable M. James Sorte, Judge presiding.
For Appellant:
Howard F. Strause, Great Falls, Montana
For Respondent:
John P. Moore, Cut Bank, Montana
Submitted on Briefs: Dec. 7, 1984
Decided: ~ p r i l16, 1985
1 6 19%
i \ f ~
Filed:'
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
Helen Hoyt (hereinafter wife) appeals from a judgment
of the District Court of the Ninth Judicial District, Glacier
County, denying her petition to set aside the decree of
dissolution of marriage between herself and John C. Hoyt
(hereinafter husband) . We affirm.
John C. and Helen Hoyt were married in Great Falls,
Montana in 1970. No children were born of this marriage.
Both had children from previous marriages. In 1979 the
husband prepared a "post-nuptial a.qreementl'providing for
property division, maintenance and support if either one
filed for a legal separation or dissolution of the marriage
or on the death of either of them. If the marriage endured,
the husband agreed to make no claim against the wife's estate
at her death. The wife would receive her choice of
twenty-five percent of the net estate or that portion left by
the husband's will if he predeceased her. In the event of a
legal separation or dissolution, the husband agreed to pay
the balance of the mortgage on the wife's house ($16,000 at
the time of the agreement) and to purchase a new car for her.
He also agreed to pay the wife $1,500 per month for eleven
years upon the filing of a petition for dissolution. He also
agreed to pay her $25,000 bearing interest as of September 1,
1979, at ten percent per annum with payment due after demand
by written notice sixty days in advance. The wife would
receive any and all household furnishings except for the
husband's personal property. The husba.nd also agreed to hold
the wife harmless for any income tax claim. Both parties
signed the agreement.
*.
On . ~ u ~ u s t 1982, the husband filed a petition for
5,
dissolution of marriage in GI-acier County. On October 19,
1982, the wife signed a response to the petition presented to
her by the husband. It affirmed the terms and fairness of
the post-nuptial agreement, waived her right to a trial on
the merits and assistance of counsel, and waived her right to
be present at the final hearing on the dissolution of the
marriage. His attorney filed the response on October 22,
1982. The summons issued by the clerk of court was returned
without proof of service.
The final hearing on the dissolution of marriage was
held on February 3, 1983. The husband was present with his
counsel. The wife was not present. At the hearing the
husband unilaterally agreed to extend the monthly payments of
$1,500 to the wife from eleven years to life. The court
approved the agreement, found it to not he unconscionable and
ordered the parties to comply with its provisions. After the
hearing at which the husband testified, the court entered a
decree dissolving the marriage and incorporating the terms of
the post-nuptial agreement.
The wife was served with notice of entry of judgment on
March 9, 1983. On April 5, 1983 she appeared through counsel
and filed a motion for change of venue. The District Court
denied the motion. On January 26, 1984, this Court affirmed
the denial holding that a change of venue was not appropriate
unless and until the judgment by default had been set aside.
In re the Marriage of Hoyt (Mont. 1984) 675 P.2d 392, 41
St.Rep. 183.
On February 2, 1984, the wife petitioned the District
Court to set aside that part of the decree of dissolution
that distributed the assets of the parties. The grounds
alleged were mistake, inadvertence, excusable neglect, fraud
on the wife and fraud on the District Court. The facts
alleged in her petition to support these grounds were:
She never received a copy of the divorce petition and
was never served with the summons; the summons issued by the
clerk of the court was returned without proof of service; the
husband did not explain what the response was at the time he
presented it for her signature and failed to leave a copy of
the document with her; the wife was under the influence of
alcohol and did not realize she was signing the response; the
response was filed with the District Court without her
knowledge; and the District Court was not aware of the
circumstances surrounding her signature on the response.
In his answer on Karch 14, 1984, the husband denied all
allegations except that he signed a petition for dissolution,
that the clerk issued a summons, and that the wife signed a
response. He requested that the petition to set aside the
decree of dissolution be denied and filed a motion for
summary judgment on the grounds that her petition was
untimely and barred as a matter of law under Rule 6O(b)
F4.R.Civ.P. Both parties submitted briefs on the Motion for
Summary Judgment. Both parties presented oral arqument on
July 5, 1984 on the Motion for Summary Judgment and the
Petition to Set Aside the Decree of Dissolution. The
District Court took the matter under advisement and requested
authorities on fraud be prepared by counsel. Both parties
submitted briefs. The wife then filed a Motion for Summary
Judgment on July 17, 1984 under Rule 60(b) l6.R.Civ.P. on the
grounds that she was not personally notified of the divorce
proceedings.
The District Court's order, filed August 2, 1984,
denied the wife's motion for summary judgment and granted the
husband's request that the petition to set aside the decree
of dissolution be denied and dismissed. The District Court
did not specifically address the husband's Motion for Summary
Judgment. The findings and conclusions included the
following:
The post-nuptial agreement met the legal requisites of
Montana law.
The sole basis of the division of assets in the decree
of dissolution was the post-nuptial agreement, except that
the husband unilaterally agreed to extend the monthly
payments to the wife from eleven years to life.
The wife alleged no facts to support a contention that
the post-nuptial agreement was unenforceable.
The wife made no complaint about the fairness of the
terms of the agreement from the time of signirg until this
action.
The wife acknowledged service of the summons and
petition in 1982 when she signed the response delivered by
the husband.
Her signature on the response affirmed the post-nuptial
agreement and waived her right to counsel, to a trial on the
merits and to attend the -hearing.
The wife may not have been sober when she signed the
response, nevertheless she retained a copy of it after she
signed it.
Service may have been insufficient under Rule 4(d) (1)
M.R.Civ.P., however service was accomplished.
A defense of insufficient service is waived if not made
by motion under Rule 12, M.R.Civ.P. or included in a
responsive pleading.
The issue of insufficient service under Rule 4
M.R.Civ.P. as a reason to set aside the judgment was first
raised by the wife in March 1984, one week short of one year
after she first entered her appearance.
On April 20, 1983, at the time the court heard the
wife1s motion for change of venue, the court advised her
twice that an attack on the decree of dissolution on the
merits should be filed pursuant to Rule 60 (b) M.R.Civ.P.
which permits a motion to set aside a judgment within 60 days
after entry of judgment, or if personal service was not made,
within 180 days after entry of judgment.
She filed her petition 328 days after receiving notice
of entry of the decree and 284 days after the denial of her
motion for change of venue.
Rule 61 M.R.Civ.P. provides that no act done or omitted
by the court or any parties and no defect in any ruling or
order should be grounds for granting a new trial or for
setting aside a judgment unless a refusal to grant a new
trial is inconsistent with substantial justice. Rule 61
directs the court to disregard any error or defect not
affecting the substantial rights of the parties.
Appellant characterizes the District Court's decision
as improperly granting the husband's motion for summary
judgment. She raises three issues on appeal.
(1) Did the District Court err in determining her
petition was untimely?
(2) Did the judge incorrectly accept statements of
disputed facts as true for his ruling on the motion for
summary judgment?
(3) Did the District Court incorrectly conclude she
presented no facts on which to base an allegation of fraud?
As noted above, the decision dismisses the petition
without specifically addressing the husband's Motion for
Summary Judgment. Thus, for the purposes of this opinion,
the issues will be discussed as arising out of a dismissal.
(1) Did the District Court correctly dismiss any of
appellant's claims for relief as untimely?
(2) Did the District Court correctly dismiss
appellant's claim for relief based on the lack of actual
personal notification as required in an independent action
under Rule 60(b) M.R.Civ.P.?
(3) Did the District Court correctly dismiss
appellant's claim for relief based on fraud on the court?
Dismissal of a claim and summary judgment are distinct
questions of law and have different legal effects. A
dismissal means "that plaintiff is entitled to no relief
under any state of facts which could be proved in support of
the claim" (Kielmann v. Mogan (1970), 156 Mont. 230, 233,
478 P.2d 275, 276) and addresses only the sufficiency of the
complaint. It is appropriate relief when "it appears beyond
reasonable doubt that the plaintiff can prove no set of facts
which would entitle him to relief." Gebhart v. D. A.
Davidson & Co. (Mont. 1983), 661 P.2d 855, 858, 40 St.Rep.
521, 524, citing Busch v. Kammerer (Mont. 1982), 649 P.2d
1339, 39 St.Rep. 1624. "[Slummary judgment signifie[s] that,
in light of the complaint and the evidence before the court,
there remain[s] no disputed material issue of fact which
plaintiffs could prove to entitle them to recover." Granger
v. Tine, Inc. (1977), 174 Mont. 42, 46, 568 P.2d 535, 538.
The first issue concerns the untimeliness of the
petition to set aside the Decree of Dissolution under Rule
60(b) M.R.Civ.P. and whether it was barred as a matter of
law. Rule 60 (b) permits the filing of a motion to set aside
a judgment within sixty days after its entry, or, within 180
days if there has not been personal service. Judgment may be
set aside on the following grounds: mistake, inadvertence,
surprise, excusable neglect, or any kind of fraud,
misrepresentation, or misconduct of an adverse party. Rule
60 (b) does not limit the power of the court to entertain an
independent action by a defendant not actually personally
notified or to set aside a judgment for fraud on the court.
Hopper v. Hopper (1979), 183 Mont. 543, 601 P . 2 d 29; Thomas
v. Savage (1973), 161 Mont. 192, 505 P.2d 118, and others.
Although the wife could have filed a timely Rule 60(b) motion
as the trial court advised her to do, she chose to pursue an
independent action on the narrow grounds permitted by the
statute. By filing an independent action, the time limits of
60 or 180 days do not apply. The District Court noted that
the wife's petition was untimely on the grounds of fraud upon
the wife, mistake, inadvertence or excusable neglect because
those grounds were not raised within 60 or 180 days as
required hy statute. Since her independent action, as per
Rule 60(b), can be based only on lack of actual personal
notification or fraud on the court, the dismissal of the
petition on the other grounds as untimely was correct.
Either dismissal or summary judgment would have been
proper on these grounds. By pursuing an independent action
rather than filing a 60(b) motion, the wife herself abandoned
these grounds for relief. The only way she could have
recovered for fraud on herself, mistake, inadvertence or
excusable neglect would have been to file a timely 60(b)
motion. By her own statements this cause is an independent
action, not a 60 (b) motion. Showing a material dispute on
facts supporting grounds for relief when those grounds have
been abandoned is inconsistent, and any district court action
to purge the case of that request for relief would have been
appropriate.
The wife's independent action on the basis of no actual
personal notification, the second issue, must also fail.
"Resort to an independent action may be had only rarely, and
then only under unusual and exceptional circumstances
... It is not a remedy for inadvertence or oversight by the
losing party in the original action ... " Wright and
Miller, Federal Practice and Procedure, Volume 11, S2868,
p.243. This notice requirement is more stringent than both
the lack of personal service of summons required for the 180
day time limit in Rule 60(b) and the insufficiency of process
and service of process required in Rule 12 (b) (4) and (5),
M.R.Civ.P. The wife signed the response to the petition.
She does not allege anyone forged her name or that she signed
under duress. She may not have been completely sober when
she signed the response. Nevertheless, her signature
indicates she was actually personally notified. Although the
service was by a party to the action, contrary to Rule 40
M.R.Civ.P., this is not a sufficient claim for an independent
action under this part of Rule 60(b). If she had challenged
the sufficiency of service in a motion pursuant to Rule 12
M.R.Civ.P., her challenge may have succeeded. If she had
raised this defense under a timely 60(b) motion as
recommended by the District Court, she may have succeeded.
However, she waived that defense by not raising it until
almost ten months after her appearances began on the request
for change of venue. See Rule 12(b) M.R.Civ.P. We therefore
hold that the District Court properly dismissed this claim as
well.
The third argument for setting aside the default
judgment is that the decree was entered as a result of fraud
on the court. As stated above, an independent action under
Rule 60(b) is not available as a remedy under all
circumstances. Here, the wife ha.d the opportunity to ra-ise
her arguments under a timely motion but failed to do so. In
addition she was unable to plead a.11 the elements of fraud.
The circumstances constituting fra.ud should be pleaded with
particularity. Rule 9(b) M.R.Civ.P. Damage resulting from
the alleged fraud is clearly a required element before a
party may be permitted recovery. The wife can plead no
damage from the entry of the default judgment unless the
underlying post-nuptial agreement is also set aside. She
admittedly made no allegations other than mere suspicions in
her pleadings that ind.icated the post-nuptial agreement was
unconscionable, fraudulently induced, or inzdequate for her
care and maintenance. Her mere suspicion of fraud is
insufficient to sustain a. cause of action. Cowan v. Westland
Realty Company (1973), 162 Mont. 379, 512 P.2d 714. As the
District Court below stated:
"Finality of litigation is in the public
interest and in the interest of the
parties, and because [the wife] has no
facts within her knowledge, five years
after she signed the post-nuptial
,
a-greement which would justify setting
aside that document as unconscionable or
fraudulently induced, this litigation
should be terminated and the rights of
the parties put t o rest. P i l a t i v.
Pilati, 592 P.2d 1374, (Mont. 1979);
Hopper v. Hopper, 601 P.2d 2 9 , (Mont.
1979) ."
Since a required element of fraud, damages, i s absent from
the pleadings the judge did not abuse his discretion in
dismissing t h i s t h i r d claim.
The d e c i s i o n of t h e D i s t r i c t C o u r t i s h e r e b y / - f f i r m e d .
, d
Justice "
i
W e concur: /