concurring specially.
Insofar as the majority opinion concludes that the amended judgment was not void because the trial court had in-personam jurisdiction of Merlyn as a result of his personal appearance and participation in the motion to amend the judgment and that relief under Rule 60(b)(iv), N.D.R.Civ.P., therefore is not appropriate, I concur in the majority opinion. Under Rule 60(b)(vi), an application to vacate a judgment is addressed to the sound discretion of the trial court. I therefore further agree that under the facts of this case the trial court did not abuse its discretion in refusing to vacate the amended judgment, although if I were exercising that discretion I might have arrived at a different result.
I do not agree, however, with some of the rationale used in the majority opinion. The old adage is that “bad cases make bad law.” The majority opinion affirms the foresight of that adage. It appears to me to make far better sense to serve both counsel of record and the party in instances such as we are confronted with here. The additional service on the attorney of record is not burdensome. If counsel in a divorce case wishes to wash his or her hands of any subsequent proceedings that might arise out of the divorce proceeding, I assume a notice of withdrawal of counsel can be placed of record. Thus I would hope the majority opinion does not serve to establish the normal standard to be followed in future cases involving similar circumstances.
As I understand the majority opinion, the issue is one of fact, i.e.: “was the complaining party represented by an attorney at the *644time of service? In answering the question the majority opinion notes that the fact that an attorney remained listed as the counsel of record in the original action is not conclusive. But is it to be given any weight at all? If there are no other pertinent facts present, is the passage of time sufficient, of itself, to erase any presumption that counsel of record in the divorce action remains counsel for the party? If passage of time is sufficient, how much time? If I understand the majority opinion correctly, there must be other facts present to indicate that there was contact between a party and his or her attorney during the interval between the entry of judgment and the motion to amend. It appears to me, however, that this is exactly what Rule 5, N.D.R.Civ.P., was intended to avoid, i.e., that absent a showing to the contrary, counsel of record would govern. In this instance Merlyn did represent himself in a related proceeding between the entry of judgment and Betty’s motion to amend the judgment. As a result, Betty’s counsel believed Merlyn’s counsel no longer was representing him. Under the facts of this case, therefore, failure to serve Merlyn's counsel is understandable. However, the general tenor of the majority opinion appears to me to place the burden on the responding party rather than on the mov-ant if there is a passage of time between the entry of judgment and the motion to amend the judgment. I disagree with that result.
The majority opinion also notes that “attorneys routinely close their file in a divorce action after entry of judgment, unless there are difficulties encountered in enforcing the judgment” and that “absent other factors indicating an ongoing attorney-client relationship, there is no presumption of continuing representation by an attorney in a divorce matter after entry of the original judgment.”
I believe that statement to be too broad as a general statement. It is more easily made under these circumstances in which some 6V2 years had expired since the date of the entry of the judgment and the time Betty’s motion to modify the judgment was served on Merlyn. In a situation in which, although the time for appeal has passed and no difficulties have been encountered in enforcing the judgment, a much shorter period of time has expired, perhaps even a matter of days or weeks, that general statement will be much more difficult to accept.
Furthermore, I am not convinced the statement is not contrary to the law of this State. The majority opinion attempts to distinguish the decision in Kinsella v. Kinsella, 181 N.W.2d 764 (N.D.1970). But in that case this court, at page 768 of the reported decision, stated:
“In ordinary circumstances an attorney represents his client only in the matters in which he is employed and not in unrelated proceedings which may be instituted against his client. At that time service upon him would be improper. ... However, in the instant case, Mr. Mills initiated an action based on the divorce judgment, and all subsequent actions at bar were related and founded upon this divorce judgment. This being so, service of the motion papers upon Mr. Mills to modify the judgment in these proceedings would be valid service upon Mrs. Kinsella, ...” [Emphasis mine.]
Therefore, although I agree the trial court may not have abused its discretion by refusing to vacate the amended judgment, I do not agree with what the majority opinion appears to set forth as the normal practice to be followed in this State in similar circumstances in the future.