Marriage of Hoyt, In re

Decision Date16 April 1985
Docket NumberNo. 84-366,84-366
PartiesIN re the MARRIAGE OF John C. HOYT, Petitioner, Counter-Respondent and Respondent, and Helen J. Hoyt, Respondent, Counter-Petitioner and Appellant.
CourtMontana Supreme Court

Howard F. Strause, Great Falls, for respondent, counter-petitioner and appellant.

John P. Moore, Cut Bank, for petitioner, counter-respondent and respondent.

GULBRANDSON, Justice.

Helen Hoyt (hereinafter wife) appeals from a judgment of the District Court of the Ninth Judicial District, Glacier County, denying her petition to set aside the decree of dissolution of marriage between herself and John C. Hoyt (hereinafter husband). We affirm.

John C. and Helen Hoyt were married in Great Falls, Montana in 1970. No children were born of this marriage. Both had children from previous marriages. In 1979 the husband prepared a "post-nuptial agreement" providing for property division, maintenance and support if either one filed for a legal separation or dissolution of the marriage or on the death of either of them. If the marriage endured, the husband agreed to make no claim against the wife's estate at her death. The wife would receive her choice of twenty-five percent of the net estate or that portion left by the husband's will if he predeceased her. In the event of a legal separation or dissolution, the husband agreed to pay the balance of the mortgage on the wife's house ($16,000 at the time of the agreement) and to purchase a new car for her. He also agreed to pay the wife $1,500 per month for eleven years upon the filing of a petition for dissolution. He also agreed to pay her $25,000 bearing interest as of September 1, 1979, at ten percent per annum with payment due after demand by written notice sixty days in advance. The wife would receive any and all household furnishings except for the husband's personal property. The husband also agreed to hold the wife harmless for any income tax claim. Both parties signed the agreement.

On August 5, 1982, the husband filed a petition for dissolution of marriage in Glacier County. On October 19, 1982, the wife signed a response to the petition presented to her by the husband. It affirmed the terms and fairness of the post-nuptial agreement, waived her right to a trial on the merits and assistance of counsel, and waived her right to be present at the final hearing on the dissolution of the marriage. His attorney filed the response on October 22, 1982. The summons issued by the clerk of court was returned without proof of service.

The final hearing on the dissolution of marriage was held on February 3, 1983. The husband was present with his counsel. The wife was not present. At the hearing the husband unilaterally agreed to extend the monthly payments of $1,500 to the wife from eleven years to life. The court approved the agreement, found it to not be unconscionable and ordered the parties to comply with its provisions. After the hearing at which the husband testified, the court entered a decree dissolving the marriage and incorporating the terms of the post-nuptial agreement.

The wife was served with notice of entry of judgment on March 9, 1983. On April 5, 1983 she appeared through counsel and filed a motion for change of venue. The District Court denied the motion. On January 26, 1984, this Court affirmed the denial holding that a change of venue was not appropriate unless and until the judgment by default had been set aside. In re the Marriage of Hoyt (Mont.1984) 675 P.2d 392, 41 St.Rep. 183.

On February 2, 1984, the wife petitioned the District Court to set aside that part of the decree of dissolution that distributed the assets of the parties. The grounds alleged were mistake, inadvertence, excusable neglect, fraud on the wife and fraud on the District Court. The facts alleged in her petition to support these grounds were:

She never received a copy of the divorce petition and was never served with the summons; the summons issued by the clerk of the court was returned without proof of service; the husband did not explain what the response was at the time he presented it for her signature and failed to leave a copy of the document with her; the wife was under the influence of alcohol and did not realize she was signing the response; the response was filed with the District Court without her knowledge; and the District Court was not aware of the circumstances surrounding her signature on the response.

In his answer on March 14, 1984, the husband denied all allegations except that he signed a petition for dissolution, that the clerk issued a summons, and that the wife signed a response. He requested that the petition to set aside the decree of dissolution be denied and filed a motion for summary judgment on the grounds that her petition was untimely and barred as a matter of law under Rule 60(b) M.R.Civ.P. Both parties submitted briefs on the Motion for Summary Judgment. Both parties presented oral argument on July 5, 1984 on the Motion for Summary Judgment and the Petition to Set Aside the Decree of Dissolution. The District Court took the matter under advisement and requested authorities on fraud be prepared by counsel. Both parties submitted briefs. The wife then filed a Motion for Summary Judgment on July 17, 1984 under Rule 60(b) M.R.Civ.P. on the grounds that she was not personally notified of the divorce proceedings.

The District Court's order, filed August 2, 1984, denied the wife's motion for summary judgment and granted the husband's request that the petition to set aside the decree of dissolution be denied and dismissed. The District Court did not specifically address the husband's Motion for Summary Judgment. The findings and conclusions included the following:

The post-nuptial agreement met the legal requisites of Montana law.

The sole basis of the division of assets in the decree of dissolution was the post-nuptial agreement, except that the husband unilaterally agreed to extend the monthly payments to the wife from eleven years to life.

The wife alleged no facts to support a contention that the post-nuptial agreement was unenforceable.

The wife made no complaint about the fairness of the terms of the agreement from the time of signing until this action.

The wife acknowledged service of the summons and petition in 1982 when she signed the response delivered by the husband.

Her signature on the response affirmed the post-nuptial agreement and waived her right to counsel, to a trial on the merits and to attend the hearing.

The wife may not have been sober when she signed the response, nevertheless she retained a copy of it after she signed it.

Service may have been insufficient under Rule 4D (1) M.R.Civ.P., however service was accomplished.

A defense of insufficient service is waived if not made by motion under Rule 12, M.R.Civ.P. or included in a responsive pleading.

The issue of insufficient service under Rule 4 M.R.Civ.P. as a reason to set aside the judgment was first raised by the wife in March 1984, one week short of one year after she first entered her appearance.

On April 20, 1983, at the time the court heard the wife's motion for change of venue, the court advised her twice that an attack on the decree of dissolution on the merits should be filed pursuant to Rule 60(b) M.R.Civ.P. which permits a motion to set aside a judgment within 60 days after entry of judgment, or if personal service was not made, within 180 days after entry of judgment.

She filed her petition 328 days after receiving notice of entry of the decree and 284 days after the denial of her motion for change of venue.

Rule 61 M.R.Civ.P. provides that no act done or omitted by the court or any parties and no defect in any ruling or order should be grounds for granting a new trial or for setting aside a judgment unless a refusal to grant a new trial is inconsistent with substantial justice. Rule 61 directs the court to disregard any error or defect not affecting the substantial rights of the parties.

Appellant characterizes the District Court's decision as improperly granting the husband's motion for summary judgment. She raises three issues on appeal.

(1) Did the District Court err in determining her petition was untimely?

(2) Did the judge incorrectly accept statements of disputed facts as true for his ruling on the motion for summary judgment?

(3) Did the District Court incorrectly conclude she presented no facts on which to base an allegation of fraud?

As noted above, the decision dismisses the petition without specifically addressing the husband's Motion for Summary Judgment. Thus, for the purposes of this opinion, the issues will be discussed as arising out of a dismissal.

(1) Did the District Court correctly dismiss any of appellant's claims for relief as untimely?

(2) Did the District Court correctly dismiss appellant's claim for relief based on the lack of actual personal notification as required in an independent action under Rule 60(b) M.R.Civ.P.?

(3) Did the District Court correctly dismiss appellant's claim for relief based on fraud on the court?

Dismissal of a claim and summary judgment are distinct questions of law and have different legal effects. A dismissal means "that plaintiff...

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5 cases
  • In re Danelson, Bankruptcy No. 91-31037-007
    • United States
    • United States Bankruptcy Courts. Ninth Circuit. U.S. Bankruptcy Court — District of Montana
    • 23 d4 Julho d4 1992
    ...is at this stage a mere suspicion of fraud and insufficient to set aside the decree of dissolution at this time. In re Marriage of Hoyt, 215 Mont. 449, 456, 698 P.2d 418 (1984). Alternatively, Respondent argues that if the Court finds Rule 60(b) inapplicable, then her motion should be grant......
  • Hagen v. Dow Chemical Co.
    • United States
    • Montana Supreme Court
    • 16 d4 Dezembro d4 1993
    ...the court, there must be no material issue of fact remaining which would entitle the nonmoving party to recover. Marriage of Hoyt (1985), 215 Mont. 449, 454, 698 P.2d 418, 421. The party opposing summary judgment must present material and substantial evidence, rather than merely conclusory ......
  • Minnie v. City of Roundup
    • United States
    • Montana Supreme Court
    • 30 d2 Março d2 1993
    ...the court, there must be no material issue of fact remaining which would entitle the non-moving party to recover. Marriage of Hoyt (1985), 215 Mont. 449, 454, 698 P.2d 418, 421. Here, no such evidence was before the District Court. Roundup failed to satisfy the requirement that it support i......
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    • Montana Supreme Court
    • 30 d4 Novembro d4 1989
    ...of the evidence. Wright v. Blevins (1985), 217 Mont. 439, 705 P.2d 113. Mere suspicion of fraud is not sufficient. In re Marriage of Hoyt (1985), 215 Mont. 449, 698 P.2d 418. Constructive fraud, unlike actual fraud, does not require dishonesty of purpose or intent to deceive. Section 28-2-4......
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