NO. 93-354
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
IN RE THE MARRIAGE OF
RANAE L. BROERE,
Petitioner and Respondent,
and
JAN 2 0 1994
ROBERT ALAN BROERE, 0 g ;-I< ,.E
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APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Russell K. Fillner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Mark P. Yeshe, Attorney at Law, Helena, Montana
For Respondent:
Jerrold L. Nye, Attorney at Law, Billings, Montana
Submitted on Briefs: October 21, 1993
Decided: January 20, 1993
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.
This appeal fromthe Thirteenth Judicial District, Yellowstone
County, involves a marriage dissolution with property and custody
issues, and the District Court's denial to set aside an entry of
default under Rule 55(c), M.R.Civ.P.
The issue is whether the District Court erred in not setting
aside the default judgment.
We reverse.
On January 19, 1993, respondent Ranae L. Broere filed a
petition for dissolution of her marriage to appellant Robert Alan
Broere. The dissolution involved the custody and support of three
minor children, marital property, a pension, and debts. Robertwas
served with the petition and a summons on February 8, 1993.
On February 26, 1993, Robert, acting pro se, signed a response
to the dissolution petition and "telefaxedl'it to Ranae's attorney.
Robert also telefaxed an acknowledgement of receipt form with a
letter asking Ranae's attorney to sign and return the form as soon
as possible. Robert misunderstood from the summons that he must
file his response with the District Court since the summons did not
direct that the response be filed with District Court, but directed
him to file his answer and serve a copy upon Ranae's attorney.
Robert believed the telefaxed response to Ranae's attorney was
sufficient.
After receipt of Robert's response, Ranae's attorney sent
Robert a note of issue on March 17, 1993, mistakenly believing
Robert had filed his response with the District Court. The note of
issue was captioned with the Broere dissolution heading and said
that on February 26, 1993, the trial was before the court upon the
filing of respondent's response.
On March 19, 1993, Ranaels attorney filed a praecipe for
default. On March 23, 1993, the District Court entered a decree of
dissolution by default and ordered the following: (1) joint
custody of the children, with Ranae as primary residential
custodian; (2) Robert to pay $397 per month in child support and
provide health insurance for the children; (3) all property in her
possession awarded to Ranae; and (4) Ranae awarded one-half of
Robert's pension. On March 29, 1993, notice of entry of judgment
was filed and served upon Robert. On April 8, 1993, Robert
obtained counsel and filed a motion with affidavits to set aside
the default. The District Court did not rule on the motion within
45 days, and it was deemed denied. On June 3, 1993, Robert filed
his notice of appeal.
Did the District Court err in not setting aside the default
judgment?
Robert contends that given his status as a layman and the
surrounding circumstances the judgment should be set aside. He
assumed his response had been properly served and filed because the
note of issue notified him it was filed. Ranae contends that a pro
se defendant undertakes representation of himself at his own peril,
and that Robert's failure to follow the procedure requirements as
provided by the Montana Rules of Civil Procedure is not excusable
neglect.
When a trial court has refused to set aside a default the
standard of review is that no great abuse of discretion need be
shown to warrant reversal. The policy is to favor trials on the
merits. Lords v. Newman (1984), 212 Mont. 359, 363, 688 P.2d 290,
293. Rule 55(c), M.R.Civ.P., for good cause shown, permits a
default judgment to be set aside under Rule 60(b). Rule 60(b),
M.R.Civ.P., states that a judgment may be set aside due to mistake,
inadvertence, surprise, or excusable neglect. Mistake is defined
as llsome unintentional act, omission, or error arising from
ignorance, surprise, imposition, or misplaced confidence." Black's
Law Dictionary 1152 (4th ed. rev. 1975). Defendants prove good
cause by showing: they proceeded with diligence: their excusable
neglect; that the judgment will be injurious to them if allowed to
stand; and they have a meritorious defense to the plaintiff's cause
of action. Blume v. Metropolitan Life Ins. Co. (1990), 242 Mont.
465, 467, 791 P.2d 784, 786.
Robert acted with diligence to set aside the default judgment
when he immediately retained an attorney to represent him and
timely filed a motion to set aside the default judgment ten days
after notice of judgment was mailed to him. He assumed that his
telefaxed response to Ranae's attorney was sufficient. See Waggoner
v. Glacier Colony of Hutterites (l953), 127 Mont. 140, 258 P.2d
1162. In Waqqoner, immediately after receiving the summons and
complaint, Colony members talked with an associate at plaintiff's
attorney's office, who said he would relay the message to
plaintiff's counsel that the wrong defendant was being sued. The
4
Colony understood from this conversation that no further action
would be taken against them, but default was entered. This Court
set aside the default stating that laymen are often misled and get
entirely different meanings from conversations than one trained in
the legal field. Wassoner, 258 P.2d at 1166. As with the
defendant in Wacrcroner, Robert made a mistake when he assumed that
his telefaxed response to Ranae's attorney was sufficient when they
sent him the note of issue.
In Worstell v. Devine (1959), 135 Mont. 1, 335 P.2d 305, this
Court found excusable neglect when the appellant's counsel was
mistaken when he assumed that the papers were served on his client
on a particular day, and when he did not discover his mistake until
after default was entered. Robert also assumed his response had
been properly served and filed because the note of issue told him
it had been filed.
The judgment is injurious to Robert who lost physical custody
of his children, was ordered to pay child support, and lost
one-half of his pension without having opportunity to litigate the
issues. This case involves issues of physical custody and
visitation and this Court has said that lrcustodycases present a
compelling reason for a hearing on the merits." Duffey v. Duffey
(1981), 193 Mont. 241, 245, 631 P.2d 697, 700. Robert's proposed
response and affidavit is sufficient to show a meritorious defense.
We want to point out that there is a second reason not raised
or argued by the parties to reverse this case, and that is that
Ranae's attorney affirmatively, though innocently, misled Robertby
5
sending him the note of issue, leading him to believe the case
would be tried. However, on discovering the fact that Robert had
not filed his response, Ranae's attorney did nothing to rectify the
misleading impression which he had left with Robert, but instead,
took advantage of Robert's misunderstanding by obtaining, without
notice, a default and a default judgment. This Court disapproves
of this type of practice.
The denial of the ~istrictCourt to set aside the default
judgment is reversed.
We concur:
/
January 20, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Mark P. Yeshe
Attorney at Law
P.O. Box 483
Helena, MT 59624
Jerrold L. Nye
NYE & MEYER, P.C.
3317 Thud Ave. North
Billings, MT 59101
ED SMITH
CLERK OF THE SUPREME COURT
BY:
Depu