Carr v. Bett

Decision Date19 March 1998
Docket Number97-311,Nos. 97-310,s. 97-310
Citation970 P.2d 1017,291 Mont. 326,1998 MT 266
Parties, 1998 MT 266 Patricia M. CARR, Plaintiff and Respondent, v. Ian M. BETT, Defendant and Appellant. . Heard
CourtMontana Supreme Court

James D. McKenna (argued); Walsh & McKenna, P.C., Bozeman, for Appellant.

William Francis Koeppen (argued) Gallatin Gateway, Montana for Respondent.

Joseph P. Mazurek, Attorney General; Chris Tweeten (argued), Assistant Attorney General; Helena, for Amicus Curiae.

Justice JIM REGNIER delivered the opinion of the Court.

¶1 On March 17, 1995, Ian M. Bett filed a petition for dissolution of marriage in the Eighteenth Judicial District Court, Gallatin County. On June 28, 1996, Ian's wife, Patricia M. Carr, filed a divorce complaint in a Wyoming district court. On October 30, 1996, the Wyoming court issued a decree of divorce and judgment to Patricia by default. On January 21, 1997, Patricia filed the Wyoming judgment with the Gallatin County District Court. She then moved for summary judgment in Ian's Montana dissolution proceeding. Subsequently, Ian moved to set aside the Wyoming judgment filed by Patricia in the Gallatin County District Court. On April 11, 1997, the District Court issued two orders, one granting Patricia's motion for summary judgment in the dissolution proceeding, and another denying Ian's motion to set aside the Wyoming judgment. Ian now appeals from both the order granting Patricia summary judgment in the dissolution proceeding and the order denying his motion to set aside the Wyoming judgment in the case where the Wyoming judgment was transcribed. We affirm.

¶2 We address the following issues on appeal:

¶3 1. Did Ian Bett file his notices of appeal in a timely manner?

¶4 2. Did Ian Bett file the proper motion under the Montana Rules of Civil Procedure to set aside the foreign judgment filed in the District Court?

¶5 3. Did the District Court err when it denied Ian Bett's motion to set aside the Wyoming judgment filed in the Eighteenth Judicial District Court, Gallatin County?

FACTUAL AND PROCEDURAL BACKGROUND

¶6 Patricia M. Carr and Ian M. Bett were married in Driggs, Idaho, on November 18, 1991. They lived a rather bohemian lifestyle, traveling throughout the West in a camper while Ian worked as a sales representative for a company. They also lived apart at times. Sometime in 1993, they separated but maintained contact. In August, 1993, Patricia moved to Jackson, Wyoming and Ian moved to Bozeman, Montana.

¶7 On March 17, 1995, Ian filed a petition for dissolution of marriage in the Eighteenth Judicial District Court, Gallatin County (Cause No. 95-120, Gallatin). More then a year later, on July 9, 1996, Patricia was served in Jackson, Wyoming, with a summons and petition of Ian's cause of action filed in Montana. She filed an answer to this petition on August 2, 1996.

¶8 On June 28, 1996, before being served with process of Ian's Montana action, Patricia filed a complaint seeking a decree of divorce in the District Court of Teton County, Ninth Judicial District, in Jackson, Wyoming. Ian was served in Bozeman, Montana, with a copy of the summons and complaint of the Wyoming action on August 21, 1996. Ian did not respond to the summons and complaint, and on October 30, 1996, a decree of divorce and judgment against Ian and in favor of Patricia was entered in the Wyoming action. The Wyoming divorce decree dissolved Ian and Patricia's marriage in Wyoming and awarded Patricia $95,000 as her share of the marital assets.

¶9 On January 21, 1997, Patricia filed an authenticated copy of the Wyoming decree and judgment with the Gallatin County Clerk of Court pursuant to the Uniform Enforcement of Foreign Judgments Act, §§ 25-9-501 through -508, MCA,(Cause No. 97-22, Gallatin). On January 22, 1997, Patricia filed a motion for summary judgment seeking to dismiss Ian's petition for dissolution of marriage. On February 10, 1997, Ian filed a motion to set aside the Wyoming judgment. This motion, however, was not filed in the case where the Wyoming judgment was transcribed (Cause No. 97-22, Gallatin), but in the case where he filed his petition for dissolution (Cause No. 95-120, Gallatin).

¶10 The District Court heard oral argument on Patricia's motion for summary judgment on February 27, 1997. During the oral argument, Patricia questioned whether Ian properly filed his motion to set aside the Wyoming decree and judgment in the same cause of action as his petition for dissolution of marriage. Thereafter, on February 28, 1997, Ian filed a motion to set aside the Wyoming decree and judgment in the cause of action wherein it had been transcribed in Montana by Patricia (Cause No. 97-22, Gallatin).

¶11 On April 11, 1997, the District Court ruled in favor of Patricia's motion for summary judgment in Ian's Montana action, resulting in its dismissal. On the same day, the court entered an order denying Ian's motion to have the Wyoming judgment set aside. In both cases, notice of entry of judgment was filed on April 15, 1997. On April 29, 1997, Ian filed motions to alter or amend judgment pursuant to Rule 59(g), M.R.Civ.P., in each case. Both motions were denied by the District Court on May 19, 1997.

¶12 On May 30, 1997, Ian filed notices of appeal. In Case No. 97-311 (Cause No. 95-120, Gallatin), Ian appeals the order of the District Court granting Patricia's motion for summary judgment and dismissing Ian's petition for dissolution of marriage. In Case No. 97-310 (Cause No. 97-22, Gallatin), Ian appeals the order of the District Court denying his motion to set aside the Wyoming decree and judgment.

¶13 On June 11, 1997, Patricia filed motions with this Court to dismiss both appeals, Case Nos. 97-310 and 97-311. On June 25, 1997, Ian filed a motion to consolidate Case Nos. 97-310 and 97-311. On July 2, 1997, we issued two separate orders. First, we granted Ian's motion to consolidate, and Case No. 97-310 was consolidated with Case No. 97-311 for purposes of this appeal. In the second July 2, 1997, order, we reserved ruling on Patricia's motions to dismiss and took her motions under advisement. We ordered both parties to include arguments and authority on their respective positions regarding Patricia's motions to dismiss the appeals in their briefs.

¶14 On November 6, 1997, after initial briefing of the appeal by the parties, this Court raised the issue of whether § 25-9-503, MCA, was constitutional in light of the Full Faith and Credit Clause, Article IV, Section 1, of the United States Constitution. We ordered supplemental briefing by both parties on this issue and stated that an oral argument would be scheduled at a later date. Also, because a decision in this case may implicate the constitutionality of § 25-9-503, MCA, we named the Montana Attorney General a party to this proceeding and invited the State to file a brief and present a separate oral argument.

¶15 On December 4, 1997, Ian moved this Court for a suspension of proceedings. In the Wyoming District Court, Ian had filed a motion to set aside the Wyoming judgment. On December 9, 1997, we granted the motion on the grounds that further proceedings regarding this case were being held in Wyoming.

¶16 On December 30, 1997, the District Court of Teton County, Ninth Judicial District, in Jackson, Wyoming, denied Ian's request to set aside the default judgment obtained by Patricia on October 30, 1996. Ian did not appeal this decision of the Wyoming court and the default judgment is now final.

ISSUE 1

¶17 Did Ian Bett file his notices of appeal in a timely manner?

¶18 At the time Ian filed his motions to alter or amend and his subsequent notices of appeal, Rule 5(a), M.R.App.P., provided in pertinent part:

(1) In civil cases the notice of appeal required by Rule 4 shall be filed with the clerk of the district court within 30 days from the date of the entry of the judgment or order appealed from, except that in cases where service of notice of entry of judgment is required by Rule 77(d) of the Montana Rules of Civil Procedure the time shall be 30 days from the service of notice of entry of judgment....

....

(4) If a timely motion under the Montana Rules of Civil Procedure is filed in the district court by any party: (i) for judgment under Rule 50(b); (ii)under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (iii) under Rule 59 to alter or amend the judgment; or (iv) under Rule 59 for a new trial, the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion....

¶19 In her motions to dismiss Ian's appeals, Patricia makes two different arguments. First, Patricia contends that both of Ian's motions to alter and amend judgment were, in substance, motions for reconsideration. If, as Patricia claims, Ian's motions are, in fact, motions for reconsideration, the motions would not toll the time for filing of an appeal under Rule 5(a)(4), M.R.App.P. Therefore, Patricia argues that Ian's notices of appeals were not timely filed since they were filed more than thirty days after the notice of entry of judgment.

¶20 Patricia relies on Miller v. Herbert (1995), 272 Mont. 132, 900 P.2d 273, to argue that Ian's motions to alter or amend judgment should be considered motions for reconsideration that do not extend the time allowed for filing an appeal. First, she contends that Ian offers no new facts, and no new evidence or new law in support of his motions. The arguments that Ian presents, Patricia claims, are the same arguments previously submitted to the District Court. Second, Patricia argues that Ian's motions are not Rule 59(g) motions because they ask the District Court to completely reverse its earlier orders rather than request the court to alter or amend its decision.

¶21 Ian counters that both his motions were...

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