MARRIAGE OF MILLER
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No. 89-87 IN THE SUPREME COURT O THE STATE O MONTANA F F 1989 I N RE THE MARRIAGE O F GENE G . MILLER, (Deceased) P e t i t i o n e r and A p p e l l a n t , and NANCY G . MILLER, Respondent and Respondent. APPEAL FROM: D i s t r i c t Court of t h e Fourth J u d i c i a l D i s t r i c t , I n and f o r t h e County o f M i s s o u l a , The Honorable James W h e e l i s , Judge p r e s i d i n g . COUNSEL O RECORD: F For A p p e l l a n t : D. H. R . Matthews, M i s s o u l a , Montana L . G a r n a a s , M i s s o u l a , Montana For Respondent: Michael S o l ; S o l I & Wolfe, M i s s o u l a , Montana . . S u b m i t t e d on B r i e f s : r C' May 1 8 , 1989 -. :.- Decided: L . ... , -A i.3 " Clerk J u l y 6 , 1989 Mr. Justice L. C. Gulbrandson delivered the Opinion of the Court. Gene Miller appeals from an order of the Fourth Judicial District Court, Missoula County, denying his motion to amend the order issued November 14, 1988, which had set aside a prior decree of dissolution. We reverse. The parties married June 14, 1985. The husband filed a petition for legal separation three months later, contending that the marriage was irretrievably broken. On October 4, 1985, the wife was personally served with a copy of this petition and with a summons requiring her to answer the petition. The wife failed to file an answer or make any other appearance. Consequently, the husband moved for a default judgment. Following a brief hearing on November 8, 1985, the court entered a default judgment granting the husband's petition for a decree of legal separation. On September 2, 1986, attorney for the wife, Larry Meyer, filed and served upon the husband's attorney a motion for entry of a decree of dissolution. The motion was based on the fact that more than six months had passed, without reconciliation, since the decree of legal separation. Hearing on this motion was indefinitely continued per the request of attorney Meyer, who did not take any further action in this matter. Meyer moved to California prior to issuance of notice of the petition for dissolution. The husband filed a similar motion for entry of decree of dissolution on May 6, 1988. This motion was served on attorney Meyer, who remained the attorney of record for the A wife; Meyer did not notify the wife of this motion. hearing on husband's motion was held on May 27, 1988. Neither the wife nor an attorney acting on her behalf were present at this hearing. The District Court entered a decree of d i s s o l u t i o n a t t h e conclusion of t h i s hearing. No n o t i c e o f e n t r y o f t h i s d e c r e e was f i l e d o r s e r v e d by e i t h e r p a r t y . The husband Thereafter, s e t aside died intestate on August 22, t h e decree of on June 19, 1988. 1988, t h e w i f e f i l e d a motion t o d i s s o l u t i o n and t o s u b s t i t u t e t h e p e r s o n a l r e p r e s e n t a t i v e o f t h e e s t a t e o f Gene M i l l e r f o r t h e deceased i n t h i s m a t t e r . t h i s motion, By a f f i d a v i t o f f e r e d i n s u p p o r t o f t h e w i f e a l l e g e d . t h e D i s t r i c t Court e r r e d i n g r a n t i n g t h e d e c r e e o f d i s s o l u t i o n a s t h e m a r r i a g e was n o t irretrievably broken. She contends this allegation is s u p p o r t e d by t h e f a c t s h e and t h e d e c e a s e d were t r a v e l i n g t o Missoula t o r e m a r r y when t h e husband s u f f e r e d a h e a r t a t t a c k and d i e d . On September 2 , 1988, a t t o r n e y f o r t h e h u s b a n d ' s e s t a t e f i l e d a motion t o d i s m i s s t h e w i f e ' s August 2 2 , 1988 motion. A memorandum i n s u p p o r t o f t h i s motion was f i l e d on September 1 3 , 1988. The District motion until granted the dissolution Court November did 14, not 1988, s u b s t i t u t i o n motion set aside for the d e c r e e was v o i d f o r l a c k o f enter at judgment which on the time and o r d e r e d t h e following either court decree of reasons: 1) t h e any t e s t i m o n y o r e v i d e n c e t h a t t h e p a r t i e s had l i v e d a p a r t f o r more t h a n 180 days o r t h a t t h e m a r r i a g e was i r r e t r i e v a b l y broken; 2) t h e w i f e had n o t r e c e i v e d p r o p e r n o t i c e o f t h e motion f o r d i s s o l u t i o n o f t h e marriage; be w e l l and 3 ) t h e c o u r t deemed t h e w i f e ' s a l l e g a t i o n s t o taken since the attorney for the estate failed t o f i l e a b r i e f i n s u p p o r t o f h i s motion t o d i s m i s s w i t h i n t h e t i m e r e q u i r e d by Rule 2 o f t h e Uniform D i s t r i c t C o u r t R u l e s . N o t i c e o f e n t r y o f t h i s judgment was f i l e d t h e same day. District Court subsequently denied amend t h i s November 14, The the estate's motion 1988 judgment, and t h e petitioner t h e r e a f t e r f i l e d t h i s appeal. to The f o l l o w i n g i s s u e s a r e s u b m i t t e d upon a p p e a l : 1. Did t h e D i s t r i c t C o u r t l o s e j u r i s d i c t i o n by f a i l i n g t o r u l e w i t h i n 45 days o f t h e d a t e t h e motion t o set a s i d e t h e d e c r e e o f d i s s o l u t i o n was f i l e d ? 2. Did petitioner's motion to the District err Court l a t e f i l i n g of h i s brief set aside the dissolution in holding that the i n opposition t o the warranted a summary r u l i n g i n favor of t h e wife? Did 3. testimony the District existed Court indicating err in that holding the that marriage no was i r r e t r i e v a b l y broken? 4. wife Did t h e D i s t r i c t C o u r t e r r i n d e t e r m i n i n g t h a t t h e was not represented d i s s o l u t i o n and t h a t by service of counsel at the time of t h e motion f o r d i s s o l u t i o n upon a t t o r n e y Meyer f a i l e d t o g i v e h e r p r o p e r n o t i c e ? The w i f e c o n t e n d s t h a t t h e h u s b a n d ' s failure t o f i l e a r e s p o n s e b r i e f w i t h i n t h e mandatory t i m e l i m i t s a u t o m a t i c a l l y deemed t h e m o t i o n t o s e t a s i d e t h e judgment a d m i t t e d a s w e l l taken. The w i f e a r g u e s t h a t t h i s a d m i s s i o n " c a n n o t t h e n b e undone by s u b s e q u e n t a p p l i c a t i o n o f Rule 6 0 ( b ) o r Rule 5 9 ( g ) , M.R.Civ.P." R u l e 2 o f t h e Uniform D i s t r i c t C o u r t R u l e s d i d i n f a c t r e q u i r e t h e husband, a s t h e adverse p a r t y , t o f i l e a response brief t o the wife's motion w i t h i n t e n days a f t e r t h e wife f i l e d h e r m o t i o n and s u p p o r t i n g b r i e f . f i l e h i s b r i e f within t h i s period. The husband f a i l e d t o T h i s f a i l u r e i s deemed a n a d m i s s i o n by t h e husband t h a t t h e m o t i o n i s w e l l t a k e n . Rule 2 ( b ) , U.D.C.R. The D i s t r i c t C o u r t t h e n c o u l d , See within i t s d i s c r e t i o n , g r a n t a summary r u l i n g i n f a v o r o f t h e w i f e . The court, ruling. however, Instead, before so ruling. failed the court to immediately waited grant approximately such 74 a days The c o u r t ' s r u l i n g , p e r Rule 2 , U . D . C . R . , t h u s was n o t a p r i o r ruling, a s a r g u e d by t h e w i f e , which would automatically preempt any subsequent application of Rules 60 (b) and 59 (9), M.R.Civ.P. The wife next contends that the 45 day limit specified in Rules 60(c) and 59(g)., M.R.Civ.P., during which a district court must rule on a motion properly before it or the motion will be deemed denied, had not expired prior to the November 14, 1988 ruling. She asserts that a notice of entry of judgment begins the running of all jurisdictional time limits. Because such a notice had not been filed after the May 8, 1988 dissolution decree, she contends that none of the post-trial motion time limits had even begun to run, let alone expire, when the court issued its November 14, 1988 order setting aside the decree. This argument, which goes beyond the clear and unambiguous language of the statute, finds no support in law. A court is required to rule on a post-judgment motion to set aside (Rule 60 (b), M.R.Civ.P. ) or to amend (Rule 59 (9), M.R.Civ.P.) a judgment within 45 days of the date the motion is - filed. Rules 60 (c) and 59 ( g ) , M.R.Civ.P., expressly state that this 45 day limit is the same as that respecting motions for a new trial as set forth in Rule 59(d), M.R.civ.P.: If the court shall fail to rule on a motion for new trial within 45 days from the time the motion is filed, the motion shall, at the expiration of said period, be deemed denied. (Emphasis added. ) The rules clearly state that the 45 day time limit for ruling on such post-trial motions begins on the actual date the motion is filed. No statutory provision exists, unlike that provision existing for a notice of appeal, which states that this 45 day period, in cases in which a post-judgment motion is filed prior to notice of entry of judgment, shall be treated as beginning on the day of the notice of entry of judgment. Cf. Rule 5 ( a ) ( 2 ) , M . R . A ~ ~ . P . (expressly stating that a prior n o t i c e o f a p p e a l w i l l b e t r e a t e d a s f i l e d on t h e s u b s e q u e n t date that notice of entry of judgment is filed). t h e r e f o r e h o l d t h a t a n o t i c e o f e n t r y o f judgment, to post-judgment which a motions, c o u r t must rule will on not affect t h e motion. the We i n regard time w i t h i n However, if the n o t i c e i s n e v e r f i l e d , a moving p a r t y p o t e n t i a l l y would have a n u n l i m i t e d t i m e w i t h i n which t o f i l e t h e r e s p e c t i v e m o t i o n . Once t h e m o t i o n i s made, however, t h e t i m e frame w i t h i n which t h e c o u r t must a c t b e g i n s . See, e .g., Winn v . Winn (1982) , 200 Mont. 402, 408, 651 P.2d 51, 5 4 . When t h e c o u r t f a i l e d t o r u l e on t h e w i f e ' s m o t i o n t o s e t a s i d e t h e judgment w i t h i n 45 d a y s o f t h e d a t e t h e m o t i o n was filed, jurisdiction t h e m a t t e r was deemed d e n i e d a n d t h e c o u r t l o s t of the particular issue. Having s o r u l e d , we need n o t d i s c u s s t h e o t h e r c h a l l e n g e s t o t h e v a l i d i t y o f t h e November 8 and December 16, 1988 orders issued the decree of by the D i s t r i c t Court. W e reverse and e n t e r e d May 27, 1988. W concur: e reinstate dissolution
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