Marriage of Castor, In re

• Decision Date: 29 August 1991
• Docket Number: No. 91-200,91-200
• Citation: 817 P.2d 665,249 Mont. 495
• Parties: In re the MARRIAGE OF Gavin Duane CASTOR, Petitioner and Appellant, and Shirley Mae Castor, Respondent and Respondent.
• Court: Montana Supreme Court

Page 665

817 P.2d 665

249 Mont. 495

In re the MARRIAGE OF Gavin Duane CASTOR, Petitioner and Appellant and Shirley Mae Castor, Respondent and Respondent.

No. 91-200.

Supreme Court of Montana.

Submitted on Briefs June 13, 1991.

Decided Aug. 29, 1991.

James D. Elshoff, Great Falls, for petitioner and appellant.

Marcia Birkenbuel, Great Falls, for respondent.

HARRISON, Justice.

Gavin Castor appeals from a February 20, 1990, order of the District Court of the Eighth Judicial District, Cascade County, Montana, denying his motion for modification of spousal maintenance payments and ordering him to pay Shirley Castor $6,066 in past-due maintenance payments, $4,000 representing Mrs. Castor's remaining share of his civil service retirement fund, $300 per month spousal support, and $250 in attorney's fees. We affirm.

We frame the issues as follows:

1. Should the District Court have set aside the February 20, 1991, order under Rule 60(b), M.R.Civ.P. because of mistake, inadvertence, excusable neglect, or any other reason justifying relief?

2. Does a State District Court have the authority in a dissolution action to order the United States Office of Personnel Management to pay directly to a former spouse a share of a civil servant's monthly disability retirement annuity payments?

3. Did the District Court abuse its discretion by ordering Mrs. Castor to deliver all personal property in her possession awarded to Mr. Castor by the dissolution decree, after she had received in full her share of retirement benefits, past-due maintenance payments, and attorney's fees?

4. Did the District Court abuse its discretion by awarding $250 in attorney's fees to Mrs. Castor?

After 28 years of marriage, on April 1, 1988, Gavin D. Castor and Shirley M. Castor were granted a dissolution of marriage. Mr. Castor was required to pay $675 per month spousal maintenance until the couple's home in Utah was sold. Maintenance would then be reduced to $300 per month until Mrs. Castor became eligible for Social Security retirement benefits. Mr. Castor was ordered to pay $4,000 to Mrs. Castor as her share of his civil service retirement pension. The parties were allowed to keep certain personal property then in their possession, and Mrs. Castor was ordered to turn over certain personal property to Mr. Castor.

On October 15, 1990, Mr. Castor moved to modify the dissolution decree by reducing the amount of spousal maintenance payments and moved to require Mrs. Castor to turn over titles to vehicles and other personal property awarded to Mr. Castor.

On December 6, 1990, Mrs. Castor requested a continuance of the hearing on the motion for modification of the dissolution decree because notice of the hearing scheduled for that date was not received until November 30, 1991. The motion was granted, and the hearing was reset for January 23, 1991.

On January 22, 1991, the District Court ordered the January 23 date for the hearing to be vacated because of a conflict in the court's calendar and rescheduled the hearing for February 14, 1991. Both parties received written notice of the continuance. Although Mr. Castor's counsel received the notice, he failed to see the new date of the hearing. As a consequence, neither Mr. Castor nor his attorney appeared at the hearing on February 14. After waiting for forty minutes, the District Court heard testimony from Mrs. Castor and entered judgment in her favor.

In its February 20, 1991 order, the District Court required the United States Office of Personnel Management to continue to pay Mrs. Castor $582 per month from Mr. Castor's monthly retirement benefits until March 1991. At that time, the Office of Personnel Management was ordered to withhold $500 per month for Mrs. Castor. Of the $500 withheld, $300 was for spousal maintenance and $200 was to be applied to the balance of Mrs. Castor's $4,000 share of retirement benefits, $6,066 in past-due spousal maintenance, and $250 in attorney's fees. In approximately three years when these obligations to Mrs. Castor had been paid in full, the Office of Personnel Management was ordered to withhold $300 per month for spousal maintenance.

In addition, after Mrs. Castor's share of retirement benefits, past-due maintenance, and attorney's fees were paid in full, Mrs. Castor was required to deliver to Mr. Castor the personal property and title to vehicles awarded to him by the dissolution decree.

On March 13, 1991, the District Court denied Mr. Castor's motion to set aside the order modifying the dissolution decree. From these judgments, Mr. Castor appeals.

I

Should the District Court have set aside the February 20, 1991, order under Rule 60(b), M.R.Civ.P. for mistake, inadvertence, excusable neglect, or other reason justifying relief?

Sections (1) and (6) of Rule 60(b), M.R.Civ.P. provide that the court may relieve a party from a final judgment for "mistake, inadvertence, surprise, or excusable neglect" or "any other reason justifying relief from the operation of the judgment."

Mr. Castor's counsel argues that he is "only human" and that his mistake in failing to notice the rescheduled date of the hearing on Mr. Castor's motion should not have been imputed to his client. Mr. Castor's counsel maintains that medical evidence of his client's disability would have changed the outcome of the court's ruling.

If the district court exercises its discretion in appraising or weighing facts of a particular case, on review this Court determines whether the district court, in varying degrees, has abused or misused its discretion. See Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, ----, 803 P.2d 601, 603-04. If the district court's decision does not involve the public policy that cases should be tried and decided on their merits, then the scope of review is the standard abuse of discretion test.

When the district court sets aside a default judgment pursuant to Rule 60(b), allowing the case to be tried on its merits, a showing of great abuse of discretion is necessary to reverse the district court's decision. Graham v. Mack (1985), 216 Mont. 165, 172, 699 P.2d 590, 594. But when the district court has refused to set aside a default judgment, "no great abuse of discretion need be shown to warrant reversal." Lords v. Newman (1984), 212 Mont. 359, 364, 688 P.2d 290, 293.

Generally, "mistake," "inadvertence," and "excusable neglect" require some justification for an error beyond mere carelessness or ignorance of the law on the part of the litigant or his attorney. Lomas and Nettleton Co. v. Wiseley (7th Cir.1989), 884 F.2d 965, 967. Mr. Castor's counsel has not offered an explanation other than his failure to note the rescheduled date of the hearing. Such a mistake is not enough to require setting aside a judgment under Rule 60(b), M.R.Civ.P. See Watson v. Fultz (1989), 239 Mont. 364, 369, 782 P.2d 361, 364 (no relief from judgment when attorney failed to notice hearing date in opponent's motion to amend findings); Griffin v. Scott (1985), 218 Mont. 410, 710 P.2d 1337 (no relief from judgment when attorney failed to read mail for five weeks because of work accumulated during his absence).

The general rule is that neglect of an attorney is attributable to the client. Myers v. All West Transport (1988), 235 Mont. 233, 236, 766 P.2d 864, 866. Mr. Castor's counsel relies on Lords v. Newman (1984), 212 Mont. 359, 688 P.2d 290, in which we held that attorney neglect can be excusable on the part of the client upon the proper showing. The attorney in Lords after making a general court appearance, "totally abandoned his clients and disappeared from sight." Lords, 212 Mont. at 367, 688 P.2d at 295.

In Paxson v. Rice (1985), 217 Mont. 521, 706 P.2d 123, we distinguished Lords because, although the attorney in Paxson failed to act in response to numerous requests by opposing counsel, he had not abandoned his client and left the state. We held that the attorney's procrastination in filing answers and other documents was "a type of neglect which is properly attributable to a client, and which we distinguish from the abandonment in Lords." Paxson, 217 Mont. at 525, 706 P.2d at 126. Similarly, the neglect in this case is properly attributable to the client.

In addition, the judgment of a district court can be set aside for "any other reason justifying relief from the operation of the judgment." Rule 60(b)(6), M.R.Civ.P. Generally, relief is afforded under subsection (6) of Rule 60(b) in extraordinary situations when circumstances go beyond those covered by the first five subsections or when a party in whose favor judgment was entered has acted improperly. Fuller v. Quire (6th Cir.1990), 916 F.2d 358, 360; In re Marriage of Tesch (1982), 199 Mont. 240, 245, 648 P.2d 293, 296. We hold that Mr. Castor has not shown that the District Court abused its discretion in refusing to set aside the order of February 20, 1991 under Rule 60(b), M.R.Civ.P.

II

Does a State District Court have the authority in a dissolution action to order the United States Office of Personnel Management to pay directly to a former spouse a share of a civil servant's monthly disability retirement annuities?

Mr. Castor claims that under Sec. 25-13-608, MCA, his retirement benefits, as "disability benefits," are exempt from execution; therefore, the District Court did not have jurisdiction to order the United States Office of Personnel Management to pay a share of his disability retirement benefits directly to Mrs. Castor. Mrs. Castor counters that according to an Arizona case, Villasenor v. Villasenor (App.1982), 134 Ariz. 476, 657 P.2d 889, the civil service retirement annuities Mr. Castor receives do not constitute "disability benefits."

The issue of apportionment of civil service pensions between civil service "retirement" benefits under 5 U.S.C. Sec. 8336 or Sec. 8338 and civil service "disability" benefits under 5 U.S.C. Sec. 8337 has been addressed in cases relating to division of property...