NO. 93-144
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
IN RE THE MARRIAGE OF
CYNTHIA K. MCDONALD,
Petitioner and Respondent,
and
RUSSELL D. MCDONALD,
Respondent and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
IIIand for the County of Flathead,
The Honorable Michael H. Keedy, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Gary A. Crowe, Attorney at Law,
Kalispell, Montana
For Respondent:
Mies Wm. Faerber, Attorney at Law,
Kalispell, Montana
Submitted on Briefs: June 23, 1993
Decided: November 10, 1993
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
Russell D. McDonald filed a motion in the District Court for
the Eleventh Judicial District, in Flathead County, to set aside
the parties' dissolution decree which had been entered against him
by default. Russell appeals from the court's failure to grant the
motion, which was deemed denied when the court failed to rule on it
within 45 days pursuant to Rule 60(c), M.R.Civ.P.
We affirm.
The issue for this Court's consideration is whether the
District Court abused its discretion when it did not grant the
motion to set aside the default decree.
On July 8, 1992, Cynthia McDonald petitioned the District
Court for dissolution of her marriage to Russell McDonald. Russell
accepted service of process on July 9, 1992, but made no further
appearance in the action. At Cynthia's request, a default was
entered against Russell by the Clerk of the District Court on
August 4, 1992.
Cynthia's petition for dissolution requested that she be
awarded custody of the parties' minor child, Tyler, and further
requested a specific division of the parties' marital assets and
debts. When Russell was served with notice of the petition for
dissolution, he received a copy of these specific proposals. On
October 14, 1992, after Cynthia and her attorney presented evidence
in support of the petition, the court entered a default decree in
Cynthia's favor, dissolving the parties' six year marriage, and
ordering custody, support, and division of the marital estate as
2
requested by Cynthia. A copy of the decree was mailed to Russell
on that Same date.
RLlSSell filed a motion to set aside the decree on
December 11, 1992, and requested the court to allow him to file a
response to Cynthia's petition for dissolution. The motion was
filed pursuant to Rule 60(b), M.R.Civ.P., and the accompanying
affidavit alleged that the decree had been obtained by Cynthia due
to Russell's mistaken beliefs and unconscious ignorance of the law.
It also contained a request for joint custody and Russell's claim
that the division of the marital property was unconscionable.
After briefs were filed by both parties, the court held a
hearing on January 21, 1993. However, the court did not rule on
the motion within 45 days of the time it was filed and it was,
therefore, deemed denied in accordance with Rule 60(c), M.R.Civ.P.
From this denial of his motion to set aside the decree, Russell
appeals.
Did the District Court abuse its discretion when it did not
grant Russell's motion to set aside the default decree?
Russell contends that his motion was improperly denied because
the court had not made a determination of whether there was
excusable neglect justifying relief from the judgment and it failed
to schedule an additional hearing to resolve this issue within 45
days from the date of his motion. Russell asserts that he was not
provided with a sufficient opportunity to demonstrate to the court
that he satisfied Rule 60(b)'s requirements regarding mistake,
inadvertence, excusable neglect, or fraud. Russell also contends
3
that the court lacked substantial evidence to support its property
division order, and that it abused its discretion when it awarded
sole custody of Tyler to Cynthia.
Rule 55(c), M.R.Civ.P., allows for the setting aside of a
default judgment under the following circumstances:
For good cause shown the court may set aside an entry of
default and, if a judgment by default has been entered,
may likewise set it aside in accordance with Rule 60(b).
Rule 60(b), M.R.Civ.P., states in pertinent part:
On motion and upon such terms as are just, the court may
relieve a party or a party's legal representative from a
final judgment, order, or proceeding for the following
reasons: (1) mistake, inadvertence, surprise, or
excusable neglect . . . or (6) any other reason
justifying relief from the operation of the judgment.
As noted in Rule 55(c), a default judgment may only be set
aside "for good cause shown." 1n Bhme v. Metropolitan Life Insurance Company
(1990), 242 Mont. 465, 791 P.2d 784, this Court clarified the
standards which must be met by a defaulting party to establish such
good cause. These criteria are: (1) the defaulting party proceeded
with diligence; (2) the defaulting party's neglect was excusable;
(3) the defaulting party has a meritorious defense to the claim:
and (4) the judgment, if permitted to stand, will affect the
defaulting party injuriously. Blume, 791 P.2d at 786. We have also
clearly stated that the burden of proof rests on the party seeking
to set aside the default judgment. Siewing v. ~enrson Co. ( 19 8 7 ) , 226
Mont. 458, 461, 736 P.2d 120, 122.
Where a trial court fails to grant a motion to set aside a
default judgment, the finding of even a slight abuse of discretion
4
is sufficient to justify reversal of such an order. Empire Lath v.
American Casuaby (1993), 256 Mont. 413, 847 P.2d 276: Bd. of Directors
Edelweiss 0~~s~ Assrz. V. hfchtosh (1991), 251 Mont. 144, 822 P.2d 1080.
In this instance, after reviewing the record and considering the
factors stated above, we conclude that the District Court did not
abuse its discretion when it failed to grant Russell's motion to
set aside the default judgment.
On appeal, Russell urges this Court to consider the merits of
the District Court's decisions regarding custody and distribution
of the marital estate. However, as we made clear in Blrtme, when
reviewing the denial of a Rule 60(b) motion for the setting aside
of a default judgment, the moving party must first satisfy the
criteria for establishing good cause. Here, we conclude that
Russell has failed to satisfy the threshold requirement of
demonstrating excusable neglect which would justify setting aside
the default decree.
In support of his motion to set aside the default judgment at
the District Court level, Russell argued that he was not
represented by counsel at the time the decree was entered and was
under the mistaken opinion that he would have the opportunity to
review an llagreementt' prior to the finalization of the dissolution.
Russell contended that he Was ignorant of the appropriate law
under the circumstances [and] . . . was unconsciously ignorant of
facts material to the contract."
5
In Z~treMnniageofCastor (1991), 249 Mont. 495, 817 P.2d 665, we
emphasized that "mistake,11 "inadvertence," and "excusable neglect"
generally require some justification for an error beyond mere
carelessness or ignorance of the law. Castor, 817 P.2d at 667
(citing Lornas and Nettleton Co. V. Wiselq (7th Cir. 1989), 884 F.2d 965,
967). After reviewing the record, we are not convinced that
Russell's mistaken beliefs or ignorance of the law rise to a level
which would justify the setting aside of the decree.
The petition for dissolution which was served upon Russell
contained very specific proposals for the distribution of the
marital property and the care and custody of the minor child.
Russell was also clearly informed that he had twenty days to
respond to the petition. However, it is clear that at no time
prior to the entry of the decree did Russell attempt either on his
own, or with the advice of counsel, to express any objections he
may have had to Cynthia's proposals.
On appeal, Russell contends that he was not afforded an
opportunity by the District Court to show that he had satisfied a
showing of mistake, inadvertence, excusable neglect, or fraud.
Although it is true that the court indicated it would schedule a
continuation of the hearing in order to address the issues of
custody and property distribution and did not do so, the burden was
on Russell to initially support his Rule 60(b) motion with
sufficient evidence to justify setting aside the decree. The
record demonstrates that Russell did have ample opportunity to
6
present his written arguments to the court and to testify at the
January 21, 1993, hearing in this regard.
We conclude that Russell failed to establish excusable
neglect, mistake, or any other reason which would justify relief
from the operation of the default judgment. We hold the District
Court did not abuse its discretion when it did not grant Russell's
motion to set aside the default decree.
Affirmed.
f-a
Ju tice
We concur:
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November 10, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Gary A. Crowe, Esq.
Attorney at Law
P.O. Box 924
Kalispell, MT 59903-0924
Mies Wm. Faerber
Attorney at Law
725 So. Main
Kalispell, MT 59901
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA