?To. 84-340
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
IN RE THE MARRIAGE OF
LOIS bWRIE KRAUT,
Petitioner and Appellant,
and
MAURICE RAYMOND KRAUT,
Respondent and Respondent.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Mark Sullivan, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Harrison, Yeshe & Thweatt; Harold H. Harrison,
Helena, Montana
For Respondent:
Smith Law Firm; Robert J. Sewell, Helena, Montana
Submitted on Briefs: Jan. 18, 1985
Decided: March 7, 1985
-
Clerk
Mr. Justice Frank B. Morrison, Jr. , delivered the opinion of
the Court.
Summary judgment was entered January 26, 1981, in the
First Judicial District Court, County of Lewis and Clark,
dissolving the marriage of Lois Marie Kraut (wife) and Mau-
rice Raymond Kraut (husband). On April 5, 1984, wife filed a
motion to vacate that judgment. Wife's motion was denied
June 13, 1984. She appeals.
Wife filed a petition for dissolution of marriage on
November 3, 1978. Husband filed a response and
counter-petition on November 22, 1978. Each party alleged in
its verified petition that the marriage was irretrievably
broken in that there is serious marital discord which ad-
versely affects the attitude of one or both of the parties
toward the marriage.
The hearing on the petition for dissolution was set for
January 21, 1981. Counsel for the respective parties ap-
peared. Neither of the parties personally appeared. Hus-
band's counsel moved for summary judgment, based on the
pleadings, on the issue of dissolution. Wife's counsel did
not object. Subsequent to the hearing, husband's counsel
filed a written motion for summary judgment. The motion was
granted on January 26, 1981. The issues of maintenance,
custody, support, attorneys' fees and costs were reserved and
remain undecided today.
On April 5, 1984, wife moved to have the January 1981
judgment declared void and vacated, apparently pursuant to
Rule 60 (b)(4), M.R.Civ. P. Specifically, wife alleged that
because the first trial judge had not held a hearing and.
received evidence on the issue of the irretrievable breakdown
of the marriage, he lacked jurisdiction to dissolve the
marriage. A judgment entered without jurisdiction is void.
Shields v. Pirkle Refrigerated Freightlines, Inc. (1979), 181
Mont. 37, 591 P.2d 1120.
The present trial judge agreed with wife that an eviden-
tiary hearing should have been held on the issue of whether
or not the marriage was irretrievably broken. He further
held that failure to conduct such a hearing resulted in a
premature judgment. Since premature judgments are voidable
rather than void, State ex rel. Marlenee v. District Court
(1979), 181 Mont. 59, 592 P.2d 153, and wife had waited three
years before contesting the dissolution, wife's motion to
vacate was denied. We affirm the decision of the District
Court.
The Uniform Narriage and Divorce Act (UMDA) was adopted
in Montana in 1975. One of its primary purposes is to a.bol-
ish the traditional, fault-finding grounds for divorce. The
UMDA recognizes that it is not necessary to place blame on a
particular party before dissolving a marriage. Rather, the
UMDA recognizes that sometimes marriages fail for no specific
reason and that when a marriage becomes "irretrievably bro-
ken," it should be dissolved at the request of one or both
of the parties to it.
However, the parties to a marriage cannot, under the
UMDA, just tell a judge their marriage is irretrievably
broken and automatically he granted a dissolution. "[Section
305 of the UMDA] makes the determination of whether the
marriage is irretrievably broken, in a11 cases, a matter for
determination by the court, ' after hearing,' which means
'upon evidence.' ... [Tlhe determination of breakdown
should be a judicial function rather than a conclusive pre-
sumption arising from the parties' testimony or from the
petition." Commissioners' Note to S305, UMDA.
A marriage is found to be irretrievably broken if the
parties have lived separately and apart for at least 180 days
or if "there is serious marital discord which adversely
affects the attitude of one or both of the parties towards
the marriage." Section 40-4-104 (1)(b) (i) and (ii), MCA
(Section 302 (a) (2) (i) and (ii), UJIDA) . Evidence supporting
either of these determinations must be presented at a hearing
and the court must thereafter make a finding whether or not
the marriage is irretrievably broken. Section 40-4-107, MCA
!Section 305, UMDA).
Wife alleges that since the first trial judge failed to
conduct a hearing and take evidence on the issue of whether
or not the marriage was irretrievably broken, he lacked
jurisdiction to dissolve the marriage. We disagree. The
trial court had jurisdiction over this dissolution because
petitioner (wife) had been domiciled in the state for at
least ninety (90) days prior to filing her petition for
dissolution ($40-4-104 (1)(a), MCA) , and because husband
appeared and filed his own counter-petition, (Rule 4B (2),
Further, $40-4-105, MCA, states in relevant part:
"(1) The verified petition in a proceeding for
dissolution of marriage or legal separation shall
allege that the marriage is irretrievably broken
and shall set forth:
"(c) that the jurisdictional requirements of
40-4-104 exist and that the marriage is irretriev-
ably broken "...
. (emphasis supplied)
Clearly, the jurisdictional requirements are considered to be
separate and distinct from the allegation that the marriage
is irretrievably broken.
Failure to conduct a hearing and accept evidence on the
issue of whether or not a marriage is irretrievably broken is
a proced.ura1 rather than a jurisdictional defect. Since no
such hearing was held and no evidence taken, the judgment
dissolving the marriage was premature. Marlenee, 181 Mont.
at 64--65,592 P.2d at 156. Premature judgments are not void.
Interstate Counseling Service v. Emeline (1964), 144 Mont.
409, 396 P.2d 727; Sowerwine v. Sowerwine (1965), 145 Mont.
81, 399 P.2d 233. Therefore, they can not be vacated pursu-
ant to Rule 60(b), M.R.Civ.P. The June 13, 1984, order of
the District Court denying petitioner's motion to vacate is
affirmed.
Premature final judgments are subject to review on
appeal. The premature summary judgment in this case is not
yet ripe for appeal because issues collateral to the dissolu-
tion remain undecided. Marlenee, 181 Mont. at 62-63, 592
P.2d at 154-155. Rule I, M.R.Civ.kpp.P. The on1.v method by
which the premature judgment itself can be reviewed by this
Court at this point is with a Rule 54 (b), M.R.Civ.P.
certification.