July 13 2010
DA 09-0685
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 150N
IN RE THE MARRIAGE OF
ALBERT S. GOLLNICK,
Petitioner and Appellee,
and
JANE S. GOLLNICK,
Respondent and Appellant.
APPEAL FROM: District Court of the Twenty-First Judicial District,
In and For the County of Ravalli, Cause No. DR 09-77
Honorable James A. Haynes, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Joan E. Cook, Law Office of Joan E. Cook; Missoula, Montana
For Appellee:
Matthew Baldassin, Datsopoulous, MacDonald & Lind, P.C.;
Missoula, Montana
Submitted on Briefs: June 9, 2010
Decided: July 13, 2010
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2006, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court and its case title, Supreme Court cause number and disposition shall be included in
this Court’s quarterly list of noncitable cases published in the Pacific Reporter and
Montana Reports.
¶2 Appellant Jane S. Gollnick (Jane) appeals from the order of Twenty-First Judicial
District Court, Ravalli County, denying her motion to set aside judgment.
¶3 The issue on appeal is as follows:
¶4 Did the District Court err in denying Jane’s motion to set aside the default
judgment?
¶5 On April 10, 2009, Albert Gollnick (Albert) appeared pro se and filed a petition
for dissolution of his marriage to Jane. Five days later, on April 15, 2009, the Ravalli
County Sheriff’s Office served Jane with Albert’s petition which included his preliminary
declaration of assets, debts, income and expenses, as well as notice of service, notice and
acknowledgement of receipt of summons and petition, sensitive data form, and the
summons and economic restraining order. Jane did not respond to Albert’s petition or
make an appearance. As a result, on May 12, 2009, Albert filed a request for entry of
default judgment and an application for default judgment. Jane’s default was entered on
May 12, 2009, and on July 2, 2009, the District Court set a hearing for entry of default
judgment and final decree of dissolution.
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¶6 The day before the hearing, Doctor Richard Felix faxed a letter to the District
Court requesting that the final decree be postponed and informing the District Court that
Jane had been hospitalized since June 28, 2009.
¶7 On July 2, 2009, Albert appeared for the hearing and Jane did not. The District
Court advised Albert of the letter from Doctor Felix and Albert gave sworn testimony
that the property division he requested was equitable and that it was the same division
proposed in the petition for dissolution he had served on Jane. The District Court found
the parties’ marriage irretrievably broken and ordered it dissolved. Over three months
later, on October 9, 2009, Jane made her first appearance by filing her motion to set aside
the judgment. On December 2, 2009, the District Court issued its order denying Jane’s
motion to set aside judgment. Jane appeals.
¶8 On appeal, Jane argues that the District Court erred in several ways when it denied
her motion to set aside judgment. First, Jane asserts that in light of Doctor Felix’s letter
to the District Court, the District Court should not have entered the default and decree
based on Albert’s representations. She maintains that her depression and treatment for
depression left her without the capacity to make reasonable decisions regarding her
situation. In support of this argument, Jane offers her “Discharge Plan” indicating that
she was discharged from the hospital on July 2, 2009. Second, Jane contends that the
District Court’s judgment should be set aside because “Albert failed to file an adequate
disclosure of all assets, liabilities and income.” She argues that the District Court shirked
its duty to inquire into Albert’s disclosure, particularly with respect to discrepancies
regarding his pensions, income, and assets. Third, Jane asserts that the District Court’s
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division of property is inequitable and “constitutes an abuse of discretion.” Finally, Jane
argues that the District Court erred by “awarding relief to Albert that was over and above
what was initially requested in his [p]etition for [d]issolution.”
¶9 Albert counters that as a threshold matter, Jane waived her argument that the
District Court’s distribution of the property was inequitable and different from what
Albert sought. He further contends that Jane did not present the “Discharge Plan” to the
District Court and that she therefore, should not be able to present it on appeal. Albert
also maintains that Jane failed to request below and thus, cannot argue here, that she is
entitled to relief pursuant to M. R. Civ. P. 55(c) and 60(b). Nevertheless, Albert argues
that the District Court’s analysis under both M. R. Civ. P. 55(c) and 60(b) was not an
abuse of discretion. He points out that even though “Jane failed to comply with
procedural rules throughout the proceeding below” the District Court considered whether
the circumstances entitled Jane to relief and correctly denied her motion to set aside
judgment.
¶10 As default judgments are not favored, we review a district court’s denial of a
motion to set aside judgment for only a slight abuse of discretion. ABC Collectors, Inc. v.
Birnel, 2008 MT 35, ¶ 10, 341 Mont. 310, 176 P.3d 1067. A District Court abuses its
discretion if its order is arbitrary, shows no conscientious judgment or exceeds the
bounds of reason. Essex Ins. Co. v. Moose’s Saloon, Inc., 2007 MT 202, ¶ 19, 338 Mont.
423, 166 P.3d 451.
¶11 A party seeking to set aside a default judgment entered by a district court must
satisfy M. R. Civ. P. 60(b). Tschida v. Rowe, 2003 MT 192, ¶ 12, 316 Mont. 503, 74
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P.3d 1043. Here, despite the fact that Jane failed to argue she was entitled to relief under
M. R. Civ. P. 60(b) and failed to make an appearance, file an answer, make an objection
or file her own financial disclosure statements until nearly six months after she was
served with Albert’s petition, the District Court still engaged in a thorough analysis on
the merits of Jane’s motion to set aside judgment and came to the conclusion that Jane’s
motion failed to justify setting aside the judgment. Indeed, the District Court engaged in
its analysis under M. R. Civ. P. 60(b), despite the fact that Jane failed to file her motion
within the 60 day requirement.
¶12 Although Jane contends that her depression and consequent admission to St.
Patrick’s Hospital prevented her from understanding her situation or from appearing at
the July 2, 2009 hearing, we find no merit in her argument that the District Court abused
its discretion in entering judgment against her. Simply put, despite her knowledge of
Albert’s petition, Jane failed to take any action until long after judgment had been entered
against her and even then failed to present sufficient evidence to support her request for
relief.
¶13 Having reviewed the record, the District Court’s decision and the parties’
arguments on appeal, we have determined to decide this case pursuant to Section I,
Paragraph 3(d) of our 1996 Internal Operating Rules, as amended in 2006, which
provides for memorandum opinions. It is manifest on the face of the briefs and the
record before us that the appeal is without merit because the findings of fact are
supported by substantial evidence, the legal issues are clearly controlled by settled
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Montana law which the District Court correctly interpreted, and the record supports the
District Court’s denial of Jane’s motion to set aside judgment.
¶14 Affirmed.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS
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