No. 96-401
IN THE SUPREMECOURT OF THE STATE OF MONTANA
1996
IN RE THE MARRIAGE OF
MICHAEL JOSEPH DOYLE,
Petitioner and Respondent,
and
JANICE LOUISE DOYLE,
Respondent and Appellant.
APPEAL FROM: District Court of the Twenty-first Judicial District,
In and for the County of Ravalli,
The Honorable Jeffrey H. Lanyton, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Michael Sol; Sol & Wolfe, Missoula, Montana
For Respondent:
Dare1 Graves, Attorney at Law, Hamilton, Montana
Submitted on Briefs: November 14, 1996
Decided: December 31, 1996
Filed:
Justice W. William Leaphart delivered the Opinion of the Court.
Appellant, Janice Louise Doyle (Janice), appeals from the
decision of the Twenty-first Judicial District Court denying her
motion to set aside the property settlement agreement she entered
into with Michael Joseph Doyle (Michael). We affirm in part,
reverse in part, and remand for rehearing.
We restate the issues as follows:
1.) Did the District Court err in denying Janice's motion to
set aside the parties' 1993 Property Settlement Agreement
because the motion was not filed within 60 days of the
final Decree?
2) Did the District Court err by awarding attorney fees
without first conducting a hearing?
BACKGROUND
Michael and Janice were married in 1964 and their marriage was
dissolved in 1993. During the marriage, Michael was employed as a
rancher while Janice worked as a bank teller, housewife,
cosmetologist, and helped on the ranch on a daily basis. At the
time of the dissolution, Michael and Janice were 50 and 48 years
old, respectively.
In 1993, Michael and Janice executed a Property Settlement and
Separation Agreement (Agreement). The Agreement was drafted by
Michael's attorney. Despite repeated suggestions by Michael's
counsel, both orally and in writing, that she obtain legal advice,
Janice chose not to seek legal counsel or appear at the hearing to
approve the Agreement. Under the Agreement Janice received 110
acres of bare land, her car, various personal belongings and was
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assigned over $40,000 in debt. In return, Michael received a total
of 560 acres of land, all of the machinery and equipment, the
cattle heard, a $19,000 Treasury certificate and was assigned
$35,000 in debt. The Agreement expressly allows modification only
upon written consent or upon a finding of unconscionability and
requires the district court to award attorney fees, as a cost of
suit, to the successful party in any action to "enforce, modify, or
interpret" the Agreement. The District Court approved the
Agreement, incorporated the Agreement into the decree, specifically
ordered each party to perform the Agreement, and granted final
dissolution of the marriage.
Nearly two years after the District Court's 1993 Judgment,
Janice filed a motion to set aside and vacate the decree of
dissolution and rescind the Agreement on grounds that Michael made
misrepresentations as to values of the property, how much of
Janice's property was under the flood plain, and whether his
property was encumbered by a life estate. Although the motion was
vague regarding its procedural grounds, it was treated as an
independent action pursuant to the residual clause of Rule 60(b),
M.R.Civ.P. After Michael and Janice filed briefs and affidavits in
support of their arguments, the District Court entered its Opinion
and Order denying Janice's motion. In addition to denying Janice's
motion, the District Court, without first conducting a hearing,
awarded Michael attorney fees in excess of $4,400. Janice appeals
both the District Court's decision denying her motion to set aside
and vacate the decree of dissolution and rescind the Agreement, and
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the District Court's decision to award attorney fees without
conducting a hearing.
STANDARDOF REVIEW
Both issues before this Court deal with the District Court's
conclusions of law. The standard of review of a district court's
conclusions of law is whether the court's interpretation of the law
is correct. Carbon County v. Union Reserve Coal Co. (1995), 271
Mont. 459, 469, 898 P.2d 680, 686; see also Kreger v. Francis
(1995) I 271 Mont. 444, 898 P.2d 672.
DISCUSSION
1) Did the District Court err in denying Janice's motion to
set aside the parties' 1993 Property Settlement Agreement
because the motion was not filed within 60 days of the
final Decree?
Since Janice's motion was filed more than 60 days after entry
of the decree, grounds one through three of Rule 60(b) are
precluded from consideration, and grounds four through six do not
pertain to her motion. Accordingly, the District Court analyzed
the motion under the residual clause of Rule 60(b). The residual
clause of Rule 60(b), M.R.Civ.P., provides:
This rule does not limit the power of a court to
entertain an independent action to relieve a party from
a judgment, order, or proceeding, or to grant relief to
a defendant not actually personally notified as may be
required by law, or to set aside a judgment for fraud
upon the court.
This residual clause allows for three separate avenues of relief
including: lack of personal notification, fraud upon the court,
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and an independent action for extrinsic fraud. See Rule 60(b),
M.R.CiXJ.P.; In re Marriage of Miller (1995), 273 Mont. 286, 291,
902 P.2d 1019, 1022 (citing Salway v. Arkava (1985), 215 Mont. 135,
140, 695 P.2d 1302, 1305). The District Court held that Janice was
not entitled to relief under the residual clause of Rule 60(b),
M.R.Civ.P. We agree.
Janice argues that, under a broad application of Rule 60(b),
M.R.Civ.P., misrepresentations on the part of Michael qualify
Janice for relief under the residual clause. Since lack of
personal notification was not raised by Janice, we will only
address whether Michael's actions constituted a fraud upon the
court or whether Janice has an independent action for extrinsic
fraud.
Fraud upon the court only involves that species of fraud which
subverts or attempts to subvert the integrity of the court itself,
or fraud perpetrated by officers of the court so that the judicial
machinery cannot perform in an impartial manner. Filler v.
Richland County (1991), 247 Mont. 285, 289, 806 P.2d 537, 539.
Fraud upon the court is limited to only the most egregious conduct,
including bribery of a judge or member of the jury; fabrication of
evidence in which an attorney has been implicated; or the
employment of counsel to influence the court. Filler, 806 P.2d at
539. This Court has repeatedly held that fraud between the parties
is not fraud upon the court. Marriage of Miller, 902 P.2d at 1022;
Wise v. Nirider (1993), 261 Mont. 310, 316, 862 P.2d 1128, 1132;
Traders State Bank of Poplar v. Mann (1993), 258 Mont. 226, 236,
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852 P.2d 604, 610. Even if Janice's claims that Michael
misrepresented resale values and facts as to flood plains are true,
that cannot be characterized as a fraud upon the court.
Finally, none of Michael's actions can be characterized as
extrinsic fraud. Montana follows the general rule that the fraud
must be extrinsic, as opposed to intrinsic, to support an
independent action for fraud under the residual clause of Rule
60 (b) , M.R.Civ.P. Marriaae of Miller, 902 P.2d at 1022 (citing
Filler, 806 P.2d at 539). Extrinsic fraud has been defined as some
intentional act or conduct by which the prevailing party has
prevented the unsuccessful party from having a fair submission of
the controversy. Marriase of Miller, 902 P.2d at 1022 (citing
Salwav, 695 P.2d at 1306). Extrinsic fraud is collateral to the
matters tried by the court, but does not include fraud in the
matters on which the judgment was rendered. See Salwav, 695 P.2d
at 1306 (citing Hall v. Hall (1924), 70 Mont. 460, 467, 226 P.2d
469, 471). In Ellis V. Schwank (Wash. 19501, 223 P.Zd 448, the
Washington State Supreme Court found extrinsic fraud was present
where a son of the plaintiff's alleged father had destroyed written
statements and wills acknowledging plaintiff was his daughter.
Ellis, 223 P.2d at 449. The court explained that since the son
destroyed evidence that the father's daughter (the plaintiff) was
also entitled to part of the father's estate, the plaintiff had
been denied an opportunity to present at trial all of the rights
and defenses to which she was entitled. Ellis
-I 223 P.2d at 449.
The son's actions had prevented the plaintiff from having a fair
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submission of the controversy and were collateral to probating the
will.
In the instant case, Janice's claims of fraud relate to assets
set forth in the Agreement, which, in turn, was incorporated into
the 1993 Judgment. Although the asset values were not set forth in
the Agreement, all assets were disclosed. Therefore, none of
Janice's claims can be characterized as extrinsic fraud.
Accordingly, we conclude that none of the claims set forth by
Janice allow the 1993 Judgment 'to be set aside. we affirm the
District Court's decision denying Janice's motion to set aside the
1993 Judgment.
2) Did the District Court err by awarding attorney fees
without first conducting a hearing?
Section 40-4-110, MCA, grants the district court discretion to
award attorney fees and costs in certain domestic relation cases.
In re Marriage of Malquist (1994), 266 Mont. 447, 454, 880 P.2d
1357, 1361 (citing In re Marriage of Dzivi (1991), 247 Mont. 165,
167-68, 805 P.2d 567, 569). Section 40-4-110, MCA, provides:
40-4-110. Costs -- attorney's fees. The court from
time to time, after considering the financial resources
of both parties, may order a party to pay a reasonable
amount for the cost to the other party of maintaining or
defending any proceeding under chapters 1 and 4 of this
title and for attorney's fees, including sums for legal
services rendered and costs incurred prior to the
commencement of the proceeding or after entry of
judgment. The court may order that the amount be paid
directly to the attorney, who may enforce the order in
his name.
In interpreting this section, this Court has required that a
petitioning party must make a showing of necessity before the
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district court awards attorney fees. In addition, the award must
be reasonable and based upon competent evidence. Marriacre of
Malauist, 880 P.2d at 1362 (citing In re Marriage of Barnard
(1990), 241 Mont. 147, 154, 785 P.2d 1387, 1391; In re Marriage of
Laster (1982), 197 Mont. 470, 479, 643 P.2d 597, 602; Wilson v.
Bean (1981), 192 Mont. 426, 427-28, 628 P.2d 287, 289). Before a
court can determine reasonableness, it must conduct a hearing
allowing for the introduction of exhibits, oral testimony and the
opportunity for cross-examination. Marriacre of Malauist, 880 P.2d
at 1362 (citing Marriage of Barnard, 785 P.2d at 1391). Finally,
an award of attorney fees will not be reversed if supported by
substantial evidence. Marriage of Barnard, 785 P.2d at 1391-92.
In the instant case, the District Court awarded Michael a
total of $4,450.75 in attorney fees. In its opinion and orders
dated October 19, 1995, and March 6, 1996, the District Court
ordered Janice to pay Michael's reasonable attorney fees. The
District Court ordered Michael to submit an affidavit of attorney
fees and costs. Based solely on affidavits submitted by Michael,
the District Court determined that a fee of $4,450.75 was
reasonable.
The award of attorney fees in this case was not made pursuant
to § 40-4-110, MCA, but rather pursuant to a provision in the
Agreement which provided:
Should any action be commenced to enforce, modify,
or interpret any provisions contained herein, the Court,
as a cost of suit, shall award a reasonable attorney's
fee to the successful party.
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Nonetheless, we hold that an evidentiary hearing as to
reasonableness is a prerequisite to an award of fees whether they
be pursuant to statute or contract. A hearing allowing for the
introduction of exhibits, oral testimony and an opportunity for
cross-examination affords parties an opportunity to present
competent evidence in support of their claims. Marriase of
Malauist, 880 P.2d at 1362. Here, the District Court's failure to
conduct such a hearing was reversible error. We remand this case
to the District Court for a hearing on the issue of reasonable
attorney fees.
Accordingly, we affirm the District Court's decision denying
Janice's motion to set aside the Property Settlement and Separation
Agreement. We reverse the District Court's award of attorney fees,
and remand for a hearing on that issue.