No. 92-367
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
IN RE THE MARRIAGE OF
CYNTHIA KEASTER, n/k/a DAVIS
Petitioner,
and
ROBERT KEASTER,
Respondent/Appellant,
STATE OF MONTANA, CHILD SUPPORT
ENFORCEMENT DIVISION,
Relator,
JERRY J. FLEMING,
Intervenor/Respondent.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas M. McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Susan L. Weber, Great Falls, Montana
For Respondent:
James D. Elshoff, Great Falls, Montana (Fleming);
John Koch, Montana Department of Revenue, Child
Support Enforcement Division, Great Falls, Montana;
Peggy Probasco, Child Support Enforcement Division,
Butte, Montana
.y=q
\:&
3 ,/
.;i Submitted on Briefs: March 25, 1993
..r i :'.i 1 0 199
.
(:
. i Decided: June 10, 1993
Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal from a judgment entered by the Eighth
Judicial District Court, Cascade County, denying appellant a stay
of proceedings and a new trial. We reverse and remand.
The only question on appeal is whether the District Court
erred in disallowing appellant a new trial and a stay of
proceedings based upon prior Montana case law prohibiting
relitigation of paternity.
This appeal involves a dissolution proceeding between Robert
Keaster (Keaster) and Cynthia Keaster (a.k.a. Cynthia Davis,
hereinafter, Davis). Dissolution was granted on October 3, 1990
following Keaster's default. About a month after the dissolution
was final, Keaster was informed that he was not the father of the
youngest of the two Keaster children. This child shall be referred
to as JMK. His non-paternity of JMK was proved by a subsequent
blood test.
Following this blood test which had been agreed to by Davis
and Keaster, the two executed a written stipulation stating that
Keaster was not the natural father of JMK. On April 17, 1991,
Keaster petitioned the court for a modification in the child
support payments he was currently paying for JMK because of his
non-paternity. The court held a hearing on this issue and heard
testimony from both Davis and Keaster on April 30, 1991. The court
found that the evidence conclusively proved Keaster was not the
natural father of JMK. The court lowered Keaster's child support
payments in an Order for Modification of Child Support and Custody
issued on May 16, 1991.
Within the next several months, Cynthia applied for child
support monies from the State of Montana. At this time she named
the natural father of JMK. Child Support Enforcement Division
(CSED) began pursuit of Jerry Fleming (Fleming), the alleged
natural father, in an attempt to procure payment of child support
for JMK. Fleming refused and on September 23, 1991, filed a motion
to intervene in the dissolution proceedings, and a motion for
permanent injunction.
Fleming filed notice of his intervention with Cynthia Keaster
and CSED. He did not notice Robert Keaster, a party to the
dissolution. Based upon the briefs submitted by Fleming and the
CSED, the District Court issued its Conclusions of Law on January
10, 1992, reinstating Keasterts payment of child support for JMK.
A copy of this order was never sent to Keaster, nor was he served
with any notice of entry of judgment in this proceeding.
Keaster realized what had transpired when he was again
approached by CSED for child support payments for JMK. This
prompted Keaster to file a motion in April of 1992, seeking a stay
of proceedings pending a new trial pursuant to Rule 59, M.R.Civ.P.
Keaster sought a new trial based upon the intervenor's failure to
serve him with notice of the intervention and his subsequent loss
of opportunity to defend against the reinstitution of child support
for JMK. Because Keaster was never served with notice of entry of
judgment, he argued that the time for filing motion for new trial
had not run. The court heard arguments on these motions on May 20,
1992, and on May 26 issued an order denying Keaster's motions.
Keaster now appeals this denial.
Did the District Court err in disallowing appellant a new
trial and a stay of proceedings based upon prior Montana case law
prohibiting relitigation of paternity?
The denying of a new trial is within the discretion of the
District Court and this Court will not disturb that ruling unless
the court abused its discretion. Brockie v. Omo Construction
(1992), 844 P.2d 61, 49 St.Rep. 1092. Here, the District Court's
denial of a new trial was rooted in previous case law of this
State. In the District Court's Conclusions of Law, the court
relied on two prior Montana cases which prohibit relitigation of
paternity once it is established. We evaluate a district court's
conclusions of law as to whether they are correct. Steer, Inc. v.
Dept. of Revenue (1990), 245 Mont. 470, 803 P.2d 603. we,
therefore, consider whether the District Court relied on the
correct precedent.
The District Court's reinstatement of Keaster's child support
for JMK was issued on January 10, 1992. In April 1992, Keaster
filed a motion seeking a stay pending a new trial. Under Rule 59,
M.R.Civ.P., a motion for new trial must be filed within ten days of
notice of entry of judgment. The record shows that no notice of
entry of judgment was sewed upon Keaster, and, therefore, he had
no express date from which to determine the start of the ten day
period. The District Court's January 10, 1992 order relies on two
prior cases from this Court in denying Keaster a new trial. The
court is in error in relying on these cases.
In Butler v. Brownlee (1969), 152 Mont. 453, 451 P.2d 836,
this Court dealt with a situation where a father had paid child
support for several years following his dissolution and then
protested. "More than four years later (after the dissolution) the
husband, following attempts to collect child support from him,
filed a "Motion for Modification of Divorce Decreew alleging that
he 'now has satisfactory proof that the two children as noted in
the decree are not his issue.'" Butler, 152 at 455, 451 P.2d at
837. This husband had placed the paternity of his children in
issue from the beainnincr of the dissolution proceedinas. The court
considered the husband's arguments during the dissolution and
determined paternity. The husband did not appeal.
The District Court in Butler negated the husband's paternity
and the mother applied for a writ of review from the Court. The
Butler Court chose to review the proceedings and stated that:
In our view under the circumstances disclosed here, the
court's jurisdiction on the issue of parentage of the
minor children became exhausted upon entry of the
original divorce decree, and until that decree is
reversed on appeal. or reaularly amended or vacated for
reasons set forth in and pursuant to Rules 59 and 60.
M.R.Civ.P., the court cannot again hear or determine the
issue of paternity. (Emphasis added.)
Butler, 152 Mont. at 458, 451 P.2d at 838-839
The Butler Court made its holding specific to the facts of the
case. Those facts clearly indicate that the father suspected that
the children were not his during the dissolution and said so. The
court considered his arguments, but did not agree.
The Court stated, "But must we close our eyes to the need for
immediate relief under the circumstances disclosed here?" Butler,
152 Mont. at 459, 451 P.2d at 839. The Court could not close its
eyes and, therefore, issued an original writ stating that parentage
could not be relitigated--under the facts of that case. The Butler
ruling is still law, where circumstances reflect the same fact
pattern. It does not, however, control the facts we have before
us.
Here Davis agrees that Keaster is not the father of JMK.
Keaster did not file his action in an attempt to avoid long
standing child support debts, nor did he even think to bring the
issue of paternity up during the dissolution. Like the Butler
Court, we do not close our eyes to the circumstances presented by
the record in this case.
Butler was the case upon which a later Court based its
decision. Marriage of Holland (l986), 224 Mont. 414, 730 P.2d 410.
Holland broadened the Butler ruling considerably, although the
underlying facts were similar. In Holland, we have a situation
similar to that in Butler in that the Court was faced with another
four year old dissolution in which the father was significantly
behind in his child support and sought to have the paternity of the
children questioned. The father in Holland, did not, however,
bring the issue of paternity up until four years after the
dissolution. Thus, the case is different from Butler in that the
district court in Butler specifically considered the father's
arguments concerning paternity at the time of the dissolution.
In both Butler and Holland the person named in the decree as
the father was attempting to reduce or eliminate child support
payments after a number of years. The natural father was not
identified in either of these cases and the mothers failed to agree
that the parties were not the fathers of the children. In contrast
here, as soon as he received information that he was not the
father, Keaster petitioned, and upon a hearing, both Keaster and
the mother, Davis, agreed he was not the father. The court then
specifically found that he was not the father. We conclude that
neither Butler nor Holland is binding precedent under the facts of
this case.
The key procedural failure in this case was the failure to
give Keaster any notice of Fleming's intervention and the failure
to serve notice of entry of judgment upon Keaster. Fleming claims
he was under no obligation to notice Keaster because Keaster had
defaulted in the original dissolution proceedings. Fleming is not
correct. Rule 24(c), M.R.Civ.P., provides the following with
regard to intervention.
Procedure. A person desiring to intervene shall serve a
motion to intervene upon the parties as provided by Rule
5.
In addition, Rule 5(a), M.R.Civ.P., provides the following in
regard to service of order:
Except as otherwise provided in these rules, every order
required by its terms to be served ... shall be served
upon each of the parties.
Under the above rules, notice of intervention was required to
be served upon Keaster, one of the parties to the action. Fleming
argues no service was required because of the initial default of
Keaster. That argument disregards the dissolution modification
proceedings which took place in this cause and in which Keaster did
appear and secured the order of modification of child support. We
conclude that Keaster was a party who had appeared in the
proceeding and that Fleming was required to serve notice of
intervention upon him. In a similar manner, because he was a
party, we conclude that Fleming was required to serve notice of
entry of judgment upon Keaster.
We further conclude that because of the failure to serve
notice of intervention and of the failure to give notice of entry
of judgment, there was no procedural reason for the District Court
to deny Keaster's motion for a new trial.
We reverse the order of the District Court of January 10,
1992, which reinstated Keasterts payment of child support for JMK.
Having concluded that the District Court abused its discretion in
refusing a new trial, we remand the proceedings to the District
Court for a new trial and consideration of such matters at it
deems appropriate in a manner consistent with this opinion.
Reversed and remanded.
We Concur:
----- _sC
June 10, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
SUSAN L. WEBER
Attorney at Law
P.O. Box 1258
Great Falls, MT 59403
JAMES D. ELSHOFF
Attorney at Law
P.O. Box 2323
Great Falls, MT 59403
JOHN KOCH
Montana Department of Revenue
Child Support Enforcement Division
219 5th Street South, Suite D
Great Falls, MT 59405
ED SMITH
CLERK OF THE SUPREME COURT
STA OF,MONTANA
BY:
Depu