In Re the Marriage of Doyle

                                         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.