No. 96-518
IN THE SUPREME COURT OF THE STATE OF MONTANA
IN RE THE MARRIAGE OF
DEBRA ANN HARSELL,
Petitioner and Respondent,
and
DENNIS MIRL HARSELL,
Respondent and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Douglas G. Harkin, Judge presiding
COUNSEL OF RECORD:
For Appellant:
Dennis Mirl Harsell, Pro Se, San Lorenzo,
California
For Respondent:
Byron W. Boggs, Attorney at Law, Missoula,
Montana
Submitted on Briefs: December 19, 1996
Decided : February 6, 1997
Filed:
Justice Karla M. Gray delivered the Opinion of the Court
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1995 Internal Operating Rules, the following decision shall not be
cited as precedent and shall be published by its filing as a public
document with the Clerk of the Supreme Court and by a report of its
result to State Reporter Publishing Company and West Publishing
Company.
Dennis Mirl Harsell, appearing pro se, appeals from the denial
by the Fourth Judicial District Court, Missoula County, of his
motion to reconsider. We affirm.
The issue on appeal is whether the District Court abused its
discretion in denying Dennis' motion to reconsider.
BACKGROUND
The marriage of Dennis Mirl Harsell (Dennis) and Debra Ann
Harsell (Debra) was dissolved by the District Court on May 11,
1987. The decree incorporated the parties' Marital and Property
Settlement Agreement which provided, in pertinent part, that Debra
be awarded sole custody of the minor child Jaime Nichole Harsell
(Jaime), subject to liberal visitation by Dennis, and that Dennis
pay child support in the amount of $100 per month and maintain
major medical and hospital insurance covering Jaime. Dennis and
Debra were each to be responsible for one-half of any medical
expenses incurred on Jaime's behalf which were not covered by
insurance. Dennis was to receive the income tax exemption for
Jaime as long as his child support payments remained current. In
1989, the parties filed a stipulation in the District Court
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increasing the child support payments to $175.
On February 8, 1996, Debra filed a motion to modify child
support. She alleged that the costs of raising Jaime had increased
substantially, that Dennis' income had increased substantially,
that Dennis had been receiving the benefit of the income tax
exemption for Jaime even though he was paying substantially less
than 50% of her support, and that Dennis had neither provided
medical insurance for Jaime nor paid uncovered medical bills.
Debra requested that the amount of child support due from Dennis be
increased to the amount required by the Montana Child Support
Guidelines (Guidelines), that she be granted the right to claim
Jaime as an income tax exemption, and that Dennis again be required
to provide medical insurance and pay one-half of uncovered medical
expenses.
On May 31, 1996, Debra moved for a default ruling on her
motion on the basis of Dennis' failure to respond; absent a
financial affidavit from Dennis upon which child support due under
the Guidelines could be calculated, she requested that the District
Court set Dennis' support obligation at $250 per month. On June
4, 1996, the District Court granted Debra's motion to modify child
support by default and awarded her the relief requested.
On June 10, 1996, Dennis filed a motion for extension of time
to respond to Debra's motion to modify child support. He recounted
therein that he had attempted to respond earlier via certified
letter to the presiding judge and only later learned that judges do
not accept such certified mail; according to Dennis, he then
attempted to file his letter as his formal response to Debra's
motion, but the letter was returned on March 11, 1996, for lack of
conformance to applicable rules of practice. While he sought a 10-
day extension of time, to and including June 20, 1996, within which
to respond to Debra's motion either through counsel or pro se, in
essence he was requesting that his default be vacated. The
District Court denied Dennis' motion for extension of time the same
day it was filed.
On June 7.1, 1996, Dennis moved the District Court to
reconsider its denial of his June 10 motion. He reasserted the
matters mentioned in his earlier motion and that he had not been
told " [iln all this time" that a response to Debra's motion was
required within a specified time period. He also stated that he
had "vital information" about the motion to modify of which the
court should be aware; none of the "vital information" was set
forth in the motion or in a sworn affidavit. The District Court
denied Dennis' motion for reconsideration on June 24, 1996.
On July 1, 1996, Dennis filed al'Responseto Motion to Modify
Child Support." On July 16, he filed a notice of appeal from the
District Court's denial of his motion requesting reconsideration of
the court's earlier denial of his motion to set aside the default
and for extension of time to respond.
On August 12, 1996, Dennis moved the District Court for a
"stay of execution of judgment" pending his appeal. On August 15,
1996, the District Court granted a stay conditioned on payment by
Dennis to the Clerk of the District Court of all sums owed, to be
held by the Clerk and not disbursed to Debra until further order of
the court. The same day, but apparently after the District Court's
grant of the conditional stay, Debra filed her opposition to
Dennis' motion for a stay; she also requested that Dennis be
required to post a supersedeas bond pending appeal
On August 20, Dennis filed a "Motion to Find Respondent in
Contempt of Court," in which he asserted that Debra was denying his
telephonic visitation with Jaime. Five days later, Dennis filed
another motion for contempt, which was identical to the earlier
motion except that he changed an incorrect designation of Debra as
"Respondentw in the earlier motion. On August 27, 1996, the
District Court vacated its order granting a conditional stay.
Did the District Court abuse its discretion in denying
Dennis' motion to reconsider?
We observe at the outset that Dennis' brief on appeal is
approximately three pages long and contains neither a statement of
the case, a statement of the facts, a statement of the issues on
appeal, citation to legal authority in support of arguments
asserting legal error by the District Court, nor legal analysis.
All of these are requirements for a brief on appeal to this Court,
as set forth in Rule 23, M.R.App.P.; none has been met here.
We understand that Dennis is appearing pro se and that his
understanding of legal procedures and requirements is less than
adequate. We also understand the importance to Dennis of the child
support issue raised by Debra's motion to modify and that he feels
that he has been wronged by the actions of the District Court in
this case. Moreover, we attempt to make reasonable accommodations
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for persons appearing pro se.
We are, however, a court of law whose obligation is to
determine the legal issues presented by the parties to an appeal
under controlling legal principles. We cannot frame the issues for
the appealing party, cite to the legal authorities which arguably
might support that party's position, and construct the legal
analysis--pursuant to those authorities--which we might then find
persuasive on behalf of that party. To do so would convert this
Court into an advocate for one party, in total derogation of our
role as the interpreter and applier of the law. Furthermore, while
such actions might appear entirely fair to--and from the standpoint
of--a pro se litigant, they would nullify the rights of the
opposing party to a decision by an objective and impartial
appellate tribunal.
The only issue before us is whether the District Court erred
in denying Dennist motion for reconsideration of its denial of his
motion for extension of time to respond. Our standard in reviewing
a district court's ruling on such posttrial or postjudgment motions
is whether the court abused its discretion. See Larson v. K-Mart
Corp. (1990), 241 Mont. 428, 430-31, 787 P.2d 361, 362 (citation
omitted). Moreover, under Rule 2(b) of the Uniform District Court
Rules, failure to respond to a motion may subject the motion to a
summary ruling. The language of Rule 2(b) clearly vests discretion
in a district court with regard to whether an unanswered motion
will be subject to a summary ruling, and we also review a trial
court's Rule 2(b) ruling under an abuse of discretion standard.
Maberry v. Gueths (1989), 238 Mont. 304, 309, 777 P.2d 1285, 1289.
Here, Dennis did not file a response to Debra's motion to
modify child support for four months and, indeed, until after that
motion had been granted by default. He not only does not contend
that he was unaware of her motion, he concedes that he received it
on February 8, 1996. It was his obligation to file a timely and
appropriate response, either pro se or through an attorney. He did
not do so over an extended period of time and his complaint that no
one advised him of the necessity of responding within a specified
period of time is to no avail. Neither district court personnel
nor opposing counsel are obligated to provide such guidance to a
party to a legal matter. "The law helps the vigilant before those
who sleep on their rights." Section 1-3-218,MCA.
Moreover, Dennis' "responses,"when ultimately filed via his
motion for extension of time and his later motion for
reconsideration, contain no substantive basis requiring or even
suggesting that reopening Debra's motion would be appropriate. He
neither contends, nor makes a showing, that the $250 child support
ordered by the District Court exceeds that required by the
Guidelines. Furthermore, while he contends that it would be a
"great hardship" to carry the medical insurance for Jaime which was
ordered by the District Court in 1987, this implicit concession
that he has not complied with the decree incorporating this
provision of the Marital and Property Settlement Agreement to which
he agreed a decade ago rings hollow at this point in the
proceedings and is hardly a persuasive argument in favor of bending
applicable rules and procedures in order to give him his day in
court. Nor does the statement in Dennis' motion for
reconsideration that he has "vital information" relating to the
motion to modify custody provide a basis for determining that the
District Court abused its discretion in denying the motion to
reconsider. None of the supposedly vital information was disclosed
via affidavit or otherwise, and courts are not required to reopen
matters based on such conclusory and unsupported statements.
We hold that the District Court did not abuse its discretion
in denying Dennis' motion for reconsideration.
Affirmed.
We concur: