In re Marriage of Lundstrom and Scholz

• Decision Date: 24 November 2009
• Docket Number: No. DA 09-0069.,DA 09-0069.
• Parties: In re The MARRIAGE OF Jill M. LUNDSTROM, Petitioner and Appellant, and Dieter SCHOLZ, Respondent and Appellee.
• Court: Montana Supreme Court

221 P.3d 1178

2009 MT 400

353 Mont. 436

In re The MARRIAGE OF Jill M. LUNDSTROM, Petitioner and Appellant, and Dieter SCHOLZ, Respondent and Appellee.

No. DA 09-0069.

Supreme Court of Montana.

Submitted on Briefs August 26, 2009.

Decided November 24, 2009.

For Appellant: Michael G. Alterowitz, Alterowitz Law Offices, Missoula, Montana.

For Appellee: Lance Jasper and Katie Olson; Jasper, Smith, Olson, P.C.; Missoula, Montana.

Justice JOHN WARNER delivered the Opinion of the Court.

¶ 1 The Twentieth Judicial District Court, Sanders County, entered a decree dissolving the marriage of Jill Lundstrom and Dieter Scholz and distributing their marital estate. Lundstrom appeals from the distribution of the marital estate.

¶ 2 The issue presented is whether the District Court erred in distributing the marital estate as a sanction for discovery abuse, without making findings of fact and conclusions of law considering the requirements of § 40-4-202, MCA.

¶ 3 Jill Lundstrom and Dieter Scholz were married in September 2004. Lundstrom petitioned for dissolution of the marriage in March 2006. In September 2006, the District Court entered a Pretrial Order which required each of the parties to file a list of the property comprising the marital estate together with the claimed value of that property and a proposed distribution no later than November 24, 2006. This case then commenced an odyssey of proceedings in the justice and district courts, seeking and resisting petitions for protective orders; seeking sanctions for violations of those orders; petitioning for contempt; appealing to this Court (In re Marriage of Lundstrom, Scholz, 2007 MT 304, 340 Mont. 83, 172 P.3d 588); substituting counsel for both parties; and substituting the district judge. Finally, in May 2008, the District Court held a hearing to determine why neither party responded to its Pretrial Order. At the hearing, Lundstrom's counsel moved to again postpone the filing of the required lists. After considering the matter, the District Court gave the parties until July 22, 2008, to respond to its Pretrial Order and scheduled a hearing for that date.

¶ 4 At the hearing in July, neither Lundstrom nor her counsel was present. Scholz's counsel informed the court he could not respond as required by the Pretrial Order because, even though he made several requests directly to Lundstrom's counsel, she had not answered his discovery requests. The District Court then ordered all discovery to be completed by December 2008.

¶ 5 Three weeks later, Scholz again made discovery requests. Again, Lundstrom did not respond. Scholz's counsel notified Lundstrom's counsel she had missed the deadline to respond to discovery, and advised that if she did not do so in two weeks he would file a motion to compel. Lundstrom's counsel did not respond and, as promised, Scholz's counsel filed a motion to compel pursuant to M.R. Civ. P. 37(b)(2) and 16(f).

¶ 6 The District Court granted additional time for Lundstrom to respond to the motion to compel. She did not respond by the extended deadline. The District Court then granted Scholz's motion to compel and ordered Lundstrom to respond by November 7, 2008. She again failed to respond. On November 13, Scholz moved for sanctions against Lundstrom for her failure to respond to his discovery requests and the District Court's orders. Lundstrom did not respond to the motion for sanctions.

¶ 7 On November 20, 2008, Scholz filed his proposed list of property comprising the marital estate, his proposed valuation of the property, and his proposed distribution of the property. He filed a supplemented list on November 26, 2008.

¶ 8 On December 12, 2008, the District Court granted Scholz's motion for sanctions. The sanctions provided, inter alia, that default judgment was entered in favor of Scholz and that the property of the parties would be divided and distributed as proposed by him. A hearing to dissolve the marriage was scheduled for December 23, 2008.

¶ 9 On December 19, 2008, Lundstrom moved to allow her counsel to withdraw and the court granted that motion on December 22. Lundstrom also filed a pro se motion to set aside the default judgment. She attached a statement that her counsel had not informed her of the pending orders and motions leading to the default judgment. Lundstrom essentially claimed her attorney had not communicated with her about the progression of her case and "abandoned" her. She further alleged that Scholz had misrepresented his ownership interest in real property and business ventures which were a part of the marital estate.

¶ 10 Lundstrom appeared pro se at the December 23 dissolution hearing and moved to continue the hearing to allow time for her to retain new counsel. The District Court granted her motion to continue and the following exchange appears in the record:

COURT: Be sure, when you're talking to your [new] attorney, that he or she recognizes you've got to do something by the 13th of January, including filing an appearance and communicating with [Scholz]'s attorney. Do you understand that?

LUNDSTROM: Yes, sir.

COURT: ... You've got to do something by January 13th. Do you understand that?

LUNDSTROM: Yes, sir, I do.

COURT: You're getting extra time because you had an attorney that blew it.

. . .

COURT: You've got to get [an attorney] and have that person get their appearance filed. They've got to file something showing a notice of substitution of attorney. They've got to file an appearance on your behalf. And you better tell them that their nose will be held to the grindstone because there has already been two years worth of delays. No further delays will be tolerated. You've got to get somebody who is willing to grab a hold of this file and get with it, get things done.

LUNDSTROM: So my newest attorney has to file an appearance on my behalf before January 13th?

COURT: Yes.

LUNDSTROM: And?

COURT: Communicate with [Scholz]'s lawyer.... It will be on an accelerated schedule, as far as your new lawyer is concerned, because the other side has been delayed for two years and no further delays will be tolerated. Do you understand that?

LUNDSTROM: Yes, sir.

¶ 11 At the hearing on January 13, 2009, Lundstrom appeared without counsel and Scholz appeared with counsel. The District Court stated that although the clerk of court had received a "faxed" copy of a letter from the lawyer that now represents Lundstrom, the letter was unsigned and not filed, thus no counsel had filed an appearance for Lundstrom as ordered on December 23, 2008. Scholz testified that the marriage was irretrievably broken and he wished the marital estate distributed as set forth in his counsel's proposed findings of fact and conclusions of law. Scholz did not testify that his proposed distribution of the marital estate was equitable. Lundstrom, after asserting that her present counsel had agreed to represent her, declined the District Court's invitation to cross-examine Scholz.

¶ 12 The District Court denied Lundstrom's motion to set aside her default, found that the marriage was irretrievably broken, and adopted Scholz's proposed findings of fact, conclusions of law and decree distributing the marital estate. The District Court took no evidence on whether the distribution of the marital estate as proposed by Scholz was equitable and made no finding that the distribution of the marital estate was equitable.

¶ 13 In the afternoon of January 13, 2009, the day the District Court entered its decree, counsel for Lundstrom filed by telefax transmission an appearance and a motion to alter or amend the judgment. Hard copies of these documents were filed on January 15, 2009. The motion to alter or amend the judgment set off another round of pleadings and responses. However,...