MARRIAGE OF KRAUT
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?To. 84-340 IN THE SUPREME COURT OF THE STATE OF MONTANA 1985 IN RE THE MARRIAGE OF LOIS bWRIE KRAUT, Petitioner and Appellant, and MAURICE RAYMOND KRAUT, Respondent and Respondent. APPEAL FROM: District Court of the First Judicial District, In and for the County of Lewis & Clark, The Honorable Mark Sullivan, Judge presiding. COUNSEL OF RECORD: For Appellant: Harrison, Yeshe Helena, Montana & Thweatt; Harold H. Harrison, For Respondent: Smith Law Firm; Robert J. Sewell, Helena, Montana Submitted on Briefs: Jan. 18, 1985 Decided: March 7, 1985 - Clerk Mr. Justice Frank B. Morrison, Jr. , delivered the opinion of the Court. Summary judgment was entered January 26, 1981, in the First Judicial District Court, County of Lewis and Clark, dissolving the marriage of Lois Marie Kraut (wife) and Maurice Raymond Kraut (husband). On April 5, 1984, wife filed a motion to vacate that judgment. June 13, 1984. Wife's motion was denied She appeals. Wife filed a petition for dissolution of marriage on November 3, 1978. Husband filed counter-petition on November 22, 1978. a response and Each party alleged in its verified petition that the marriage was irretrievably broken in that there is serious marital discord which adversely affects the attitude of one or both of the parties toward the marriage. The hearing on the petition for dissolution was set for January 21, 1981. peared. band's Counsel for the respective parties ap- Neither of the parties personally appeared. counsel moved for summary judgment, based pleadings, on the issue of dissolution. not object. Hus- on the Wife's counsel did Subsequent to the hearing, husband's counsel filed a written motion for summary judgment. granted on January 26, 1981. The motion was The issues of maintenance, custody, support, attorneys' fees and costs were reserved and remain undecided today. On April 5, 1984, wife moved to have the January 1981 judgment declared void and vacated, apparently pursuant to Rule 60 (b)(4), M.R.Civ. P. Specifically, wife alleged that because the first trial judge had not held a hearing and. received evidence on the issue of the irretrievable breakdown of the marriage, he marriage. lacked jurisdiction to dissolve the A judgment entered without jurisdiction is void. Shields v. Pirkle Refrigerated Freightlines, Inc. (1979), 181 Mont. 37, 591 P.2d 1120. The present trial judge agreed with wife that an evidentiary hearing should have been held on the issue of whether or not the marriage was irretrievably broken. He further held that failure to conduct such a hearing resulted in a Since premature judgments are voidable premature judgment. rather than void, State ex rel. Marlenee v. District Court (1979), 181 Mont. 59, 592 P.2d 153, and wife had waited three years before contesting the dissolution, wife's motion to vacate was denied. We affirm the decision of the District Court. The Uniform Narriage and Divorce Act (UMDA) was adopted in Montana in 1975. One of its primary purposes is to a.bol- ish the traditional, fault-finding grounds for divorce. The UMDA recognizes that it is not necessary to place blame on a particular party before dissolving a marriage. Rather, the UMDA recognizes that sometimes marriages fail for no specific reason and that when a marriage becomes "irretrievably broken," it should be dissolved at the request of one or both of the parties to it. However, the parties to a marriage cannot, under the UMDA, just tell a judge their marriage is irretrievably broken and automatically he granted a dissolution. "[Section 305 of the UMDA] makes the determination of whether the marriage is irretrievably broken, in a11 cases, a matter for determination by 'upon evidence.' the court, ... ' after hearing,' which means [Tlhe determination of breakdown should be a judicial function rather than a conclusive presumption arising from the parties' testimony or from the petition." Commissioners' Note to S305, UMDA. A marriage is found to be irretrievably broken if the parties have lived separately and apart for at least 180 days or if "there is serious marital discord which adversely affects the attitude of one or both of the parties towards the marriage." Section 40-4-104 (1)(b) (i) and (Section 302 (a) (2) (i) and (ii), UJIDA) . (ii), MCA Evidence supporting either of these determinations must be presented at a hearing and the court must thereafter make a finding whether or not the marriage is irretrievably broken. Section 40-4-107, MCA !Section 305, UMDA). Wife alleges that since the first trial judge failed to conduct a hearing and take evidence on the issue of whether or not the marriage was irretrievably broken, he jurisdiction to dissolve the marriage. lacked We disagree. The trial court had jurisdiction over this dissolution because petitioner (wife) had been domiciled in the state for at least ninety dissolution (90) days prior to filing her petition for ($40-4-104 (1)(a), MCA) , and because husband appeared and filed his own counter-petition, (Rule 4B (2), Further, $40-4-105, MCA, states in relevant part: "(1) The verified petition in a proceeding for dissolution of marriage or legal separation shall allege that the marriage is irretrievably broken and shall set forth: "(c) that the jurisdictional requirements of 40-4-104 exist and that the marriage is irretrievably broken (emphasis supplied) "... . Clearly, the jurisdictional requirements are considered to be separate and distinct from the allegation that the marriage is irretrievably broken. Failure to conduct a hearing and accept evidence on the issue of whether or not a marriage is irretrievably broken is a proced.ura1 rather than a jurisdictional defect. Since no such hearing was held and no evidence taken, the judgment dissolving the marriage was premature. Marlenee, 181 Mont. at 64--65,592 P.2d at 156. Premature judgments are not void. Interstate Counseling Service v. Emeline (1964), 144 Mont. 409, 396 P.2d 727; Sowerwine v. Sowerwine (1965), 145 Mont. 81, 399 P.2d 233. Therefore, they can not be vacated pursu- ant to Rule 60(b), M.R.Civ.P. The June 13, 1984, order of the District Court denying petitioner's motion to vacate is affirmed. Premature appeal. final judgments are subject to review on The premature summary judgment in this case is not yet ripe for appeal because issues collateral to the dissolution remain undecided. P.2d at 154-155. Marlenee, 181 Mont. at 62-63, 592 Rule I, M.R.Civ.kpp.P. The on1.v method by which the premature judgment itself can be reviewed by this Court at this certification. point is with a Rule 54 (b), M.R.Civ.P.
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