No. 92-602
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
IN RE THE MARRIAGE OF
ANITA L. MILLER,
Petitioner and Respondent,
and
MICHAEL G. MILLER,
Respondent and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Jeffrey M Sherlock, Judge presiding.
.
COUNSEL OF RECORD:
For Appellant:
James D. Elshoff, Attorney at Law, Great Falls
Montana
For Respondent:
J. Cort Harrington, Jr., Attorney at Law, Helena,
Montana
Submitted on Briefs: April 1, 1993
Decided: August 10, 1993
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
Michael Miller appeals from the findings of fact, conclusions
of law and decree of dissolution of marriage entered by the First
Judicial District Court, Lewis and Clark County, and from the
denial of his motion for relief from judgment. We affirm.
We restate the issues on appeal as follows:
1. Did the District Court abuse its discretion by failing to
vacate the hearing pursuant to its scheduling order?
2. Did the District Court commit wjurisdictionalnerrors in
dissolving the marriage?
3. Did the District Court err in distributing the marital
property?
4. Is Michael entitled to relief from the dissolution decree
pursuant to Rule 60(b), M.R.Civ.P.?
Michael and Anita Miller separated in May of 1990 after being
married for approximately eleven months. Anita filed a petition
for dissolution on April 30, 1992. She alleged that the marriage
was irretrievably broken and that Michael was the father of her
son, Michael Carter Miller (the child), and requested custody,
child support, and an equitable distribution of the marital
property.
Michael, a pilot with the U.S. Air Force, was stationed in
Korea for the duration of the dissolution proceedings. In a
response filed May 5, Michael admitted that the marriage was
irretrievably broken but denied paternity. He requested that the
court require blood tests to establish paternity pursuant to § 40-
6-112, MCA.
Following a June 5 scheduling conference, the court issued an
order scheduling an October 8 hearing. The order also set dates
for submission of various information and proposals and for
completion of discovery. Finally, the order provided that parties
or attorneys failing to comply with the order would be subject to
sanctions and, further, that the hearing would be vacated if either
party did not comply with the filing deadlines. Michael timely
filed his financial declaration. Neither party complied with any
of the other deadlines.
On July 13, the District Court ordered Michael to submit to
blood testing in Helena. Anita and Michael were to share the costs
of the tests, with reimbursement to the party prevailing on the
paternity issue. The court later allowed Michael to have the blood
test performed in Alabama, where he was on temporary duty.
On October 8, Anita filed proposed findings of fact and
conclusions of law and a notice conceding the issue of paternity.
She appeared with counsel and testified at the scheduled hearing.
Neither Michael nor his attorney appeared. On October 15, the
District Court entered findings of fact, conclusions of law and
decree of dissolution of marriage.
Michael subsequently moved for relief from judgment pursuant
to Rule 60(b), M.R.Civ.P. Because the District Court did not rule
on the motion within 45 days, it was deemed denied pursuant to Rule
60(c), M.R.Civ.P. This appeal follows.
Did the District Court abuse its discretion by failing to
vacate the hearing pursuant to its scheduling order?
Michael contends that Anita's noncompliance with the court-
ordered deadlines entitled him to rely on the provision of the
order that the hearing would be vacated. On that basis, he
contends that the District Court erred in holding the October 8
hearing. Discretionary acts and rulings of the district court--
such as whether to hold or vacate a hearing--will not be reversed
absent an abuse of discretion. See Steer, Inc. v. Dep't of Revenue
(1990), 245 Mont. 470, 475, 803 P.2d 601, 603-04.
Michael did not request that the hearing be vacated. Thus, he
essentially argues that the District Court was required to do so
- monte.
sua Michael cites no authority to support this argument,
nor do we find any basis for compelling the court to execute
enforcement provisions of a scheduling order absent a party's
request. Furthermore, neither Michael nor his counsel appeared and
objected to holding the hearing of which they had notice since
June. We will not put a district court in error for a procedure in
which the appellant acquiesced, participated, or to which appellant
made no objection. Marriage of Smith (1990), 242 Mont. 495, 501,
791 P.2d 1373, 1377.
We hold that the District Court did not abuse its discretion
by failing to vacate the hearing s~onte.
Did the District Court commit "jurisdicti~nal*~
errors in
dissolving the marriage?
Michael asserts a number of errors in the District Court's
findings, conclusions and decree which he characterizes loosely as
jurisdictional defects. These assertions of error are not well
taken.
First, Michael contends that the District Court's findings
regarding domicile and irretrievable breakdown are unsupported in
the record because Anita did not testify specifically that she had
been domiciled within the state for the requisite number of days
and that the marriage was irretrievably broken. We do not agree
with the thrust of Michael's contention that testimony repeating
the language of the statute is required to support the findings.
Anita testified that she had lived in Montana since May of
1990. This testimony supports the District Court's finding that
she was domiciled in Montana for more than 90 days prior to the
court's making of the finding. Thus, the jurisdictional
requirement of § 40-4-104(1)(a), MCA, is satisfied.
Anita also testified that she separated from Michael in May of
1990. This testimony establishes that she and Michael had lived
separate and apart for more than 180 days before the commencement
of the proceedings; it constitutes substantial evidence to support
the court's finding that the marriage was irretrievably broken
under 5 40-4-104(1)(b) (i), MCA.
Michael mistakenly relies on Marriage of Kraut (1985), 215
Mont. 170, 696 P.2d 981, for his assertion that a finding of
irretrievable breakdown can be supported only by express testimony
to that effect. Kraut requires only that a district court's
finding of irretrievable breakdown be supported by evidence
presented at a hearing that the parties lived separate and apart
for at least 180 days or that serious marital discord exists which
adversely affects the attitude of one or both of the parties.
, 696 P.2d at 982-83. Here, the hearing and evidence
requirements of Kraut were met.
Michael also argues, without any citation to authority, that
the court committed a jurisdictional error by dissolving the
marriage without testimony indicating whether Anita was pregnant.
A petition for dissolution of a marriage must set forth whether the
wife is pregnant. Section 40-4-105(1)(d), MCA. Anita's petition
complied with this statute. There is no requirement for testimony
or findings on this subject.
Finally, Michael contends that the Soldiers' and Sailors'
Civil Relief Act (the Act), 50 U.S.C. App. 5 5 501 & E,~&I.,
precludes the District Court from dissolving the marriage and
distributing the marital property without giving him an opportunity
to defend against Anita's claims. He cites no specific provision
of the Act to support this contention.
The only provision of the Act which arguably might bar the
District Court from entering the decree of dissolution due to
Michael's failure to appear at the hearing is 5 520. That
provision sets forth procedural safeguards and relief applicable
when there is a "default of any appearancet1by a defendant. 50
U.S.C. App. 5 520(1).
The phrase "default of any appearance" has not been
interpreted to include the failure of a defendant to appear at a
single stage of the proceedings. A defendant must fail to make any
appearance whatsoever in the proceedings culminating in the entry
of a judgment in order to invoke the protections of § 520. Smith
v. Davis (N.C. App. 1988), 364 S.E.2d 156, 158; Chenausky v.
Chenausky (N.H. 1986), 509 A.2d 156, 158; and Cloyd v. Cloyd (Mo.
Ct. App. 1978)' 564 S.W.2d 337, 344.
The record reflects that Michael appeared in the dissolution
proceedings. He filed a response and counterpetition, participated
in the June 5 scheduling conference, moved the court to allow his
blood to be drawn in Alabama, and filed a financial declaration.
Because there was no "default of any appearance" within the meaning
of 5 520, the Soldiers1 and Sailors1 Civil Relief Act did not
preclude the District Court from dissolving the marriage.
We hold that the District Court did not commit jurisdictional
errors in dissolving the marriage and that the findings required by
g 40-4-104, MCA, are supported by substantial evidence and are not
clearly erroneous.
Did the District Court err in distributing the marital
property?
Michael contends that the District Court erroneously found
that he possessed a 1990 Dodge Charger pickup valued at $5,000,
awarding $2,500 to Anita as compensation for her interest in the
vehicle. He also contends that the court's findings failed to
identify property in Anita's possession which belonged to his
father. Our standard for reviewing factual findings of a district
court relating to the division of marital property is whether the
court's findings are clearly erroneous. Marriage of Danelson
(1992), 253 Mont. 310, 317, 833 P.2d 215, 219.
Testimony at the hearing established Michael's possession of
the pickup and a value range of $8,000 to $10,000, The testimony
was unrefuted. Furthermore, the court's findings incorporated
Anita's testimony that she was in possession of certain personal
property to which Michael was entitled; this property includes most
of the items Michael now alleges belong to his father.
Michael did not appear at the hearing and did not present
evidence to refute Anita's testimony or provide a basis for
different findings by the court. We hold that the District Court's
findings relating to the pickup and other property are supported by
substantial evidence and are not clearly erroneous.
Is Michael entitled to relief from the dissolution decree
pursuant to Rule 60(b), M.R.Civ.P.?
Michael makes scattered and unfocused arguments that the
District Court erred in refusing to grant his Rule 60(b),
M.R.Civ.P., motion for relief from the decree. First, Michael
asserts that he is entitled to relief from the decree based on
Anita's alleged failure to disclose minor assets and liabilities.
He contends that these failures to disclose constituted extrinsic
fraud justifying relief from the decree under Rule 60(b),
M.R.Civ.P.
Extrinsic fraud is an intentional act by the prevailing party
that prevents the unsuccessful party from having a fair submission
of the controversy. Brown v. Small (1992), 251 Mont. 414, 420, 825
P.2d 1209, 1213. The fraud must deny the unsuccessful party the
opportunity to have a trial or to fully present her or his side of
the case. Marriage of Barnes (1992)' 251 Mont. 334, 337, 825 P.2d
201, 204, and Marriage of Lance (1981), 195 Mont. 176, 179-80, 635
P.2d 571, 574.
Here, no act by Anita--intentional or otherwise--prevented
Michael from presenting evidence or having his day in court.
Michael had the opportunity to present evidence regarding the
extent and value of the marital assets and liabilities at the
hearing; he failed to do so. We will not mandate Rule 60(b) relief
over relatively minor disputes in property valuation or
identification where a party does not appear and present evidence
concerning such matters at hearing.
Michael also advances several arguments relating to the
paternity issue which he characterizes as "other reasons justifying
relief" under Rule 60(b)(6), M.R.Civ.P. At the outset, we observe
that a court may grant relief from judgment under subsection (6)
only when extraordinary circumstances are found to exist. Koch v.
Billings School District No. 2 (1992), 253 Mont. 261, 267-69, 833
P.2d 181, 185-86; Marriage of Castor (1991), 249 Mont. 495, 500,
817 P.2d 665, 668; and Marriage of Waters (1986), 223 Mont. 183,
187, 724 P.2d 726, 729.
Michael first argues that the case was not ready for
litigation because Anita and the child had not submitted blood for
testing. This argument is without merit since neither Anita nor
the child were ever ordered to submit to blood tests.
Michael also argues that Anita "amendedm her petition by
conceding the paternity issue on the date of the hearing. On that
basis, Michael contends that he was entitled to respond to the
"amendment1*within 10 days under Rule 15(a), M.R.Civ.P. Anita's
concession neither added nor removed a claim before the court.
Testimony was given and the court determined that Michael was not
the child's father. Both the concession and the District Court's
determination were in accord with Michael's position on the issue.
Under such circumstances, the concession provides no basis for Rule
60 (b) relief.
Finally, Michael argues that because he was the prevailing
party on the paternity issue, the court erred by failing to require
Anita to reimburse one-half of his expense in obtaining the blood
tests pursuant to its July 13 order. While this may have been
appropriately raised at the hearing or in proposed findings and
conclusions, it is not an extraordinary circumstance justifying
relief from the decree.
We hold that Michael is not entitled to relief from the
dissolution decree pursuant to Rule 60(b), M.R.Civ.P.
Affirmed.
We concur: '9
August 10, 1993
CERTIFICATE OF SERVICB
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
JAMES I. ELSHOFF
)
Attorney at Law
P.O. Box 2323
Great Falls, MT 59403
CORT HARRINGTON
Attorney at Law
P.O. Box 514
Helena, MT 59624-0514
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA