Marriage of McDonald, In re

• Decision Date: 10 November 1993
• Docket Number: No. 93-144,93-144
• Citation: 863 P.2d 401,261 Mont. 466,50 St.Rep. 1411
• Parties: In re the MARRIAGE OF Cynthia K. McDONALD, Petitioner and Respondent, and Russell D. McDonald, Respondent and Appellant.
• Court: Montana Supreme Court

Page 401

863 P.2d 401

261 Mont. 466

In re the MARRIAGE OF Cynthia K. McDONALD, Petitioner and Respondent and Russell D. McDonald, Respondent and Appellant.

No. 93-144.

Supreme Court of Montana.

Submitted on Briefs June 23, 1993.

Decided Nov. 10, 1993.

Gary A. Crowe, Kalispell, for respondent and appellant.

Mies Wm. Faerber, Kalispell, for petitioner and respondent.

TRIEWEILER, Justice.

Russell D. McDonald filed a motion in the District Court for the Eleventh Judicial District, in Flathead County, to set aside the parties' dissolution decree which had been entered against him by default. Russell appeals from the court's failure to grant the motion, which was deemed denied when the court failed to rule on it within 45 days pursuant to Rule 60(c), M.R.Civ.P.

We affirm.

The issue for this Court's consideration is whether the District Court abused its discretion when it did not grant the motion to set aside the default decree.

On July 8, 1992, Cynthia McDonald petitioned the District Court for dissolution of her marriage to Russell McDonald. Russell accepted service of process on July 9, 1992, but made no further appearance in the action. At Cynthia's request, a default was entered against Russell by the Clerk of the District Court on August 4, 1992.

Cynthia's petition for dissolution requested that she be awarded custody of the parties' minor child, Tyler, and further requested a specific division of the parties' marital assets and debts. When Russell was served with notice of the petition for dissolution, he received a copy of these specific proposals. On October 14, 1992, after Cynthia and her attorney presented evidence in support of the petition, the court entered a default decree in Cynthia's favor, dissolving the parties' six year marriage, and ordering custody, support, and division of the marital estate as requested by Cynthia. A copy of the decree was mailed to Russell on that same date.

Russell filed a motion to set aside the decree on December 11, 1992, and requested the court to allow him to file a response to Cynthia's petition for dissolution. The motion was filed pursuant to Rule 60(b), M.R.Civ.P., and the accompanying affidavit alleged that the decree had been obtained by Cynthia due to Russell's mistaken beliefs and unconscious ignorance of the law. It also contained a request for joint custody and Russell's claim that the division of the marital property was unconscionable.

After briefs were filed by both parties, the court held a hearing on January 21, 1993. However, the court did not rule on the motion within 45 days of the time it was filed and it was, therefore, deemed denied in accordance with Rule 60(c), M.R.Civ.P. From this denial of his motion to set aside the decree, Russell appeals.

Did the District Court abuse its discretion when it did not grant Russell's motion to set aside the default decree?

Russell contends that his motion was improperly denied because the court had not made a determination of whether there was excusable neglect justifying relief from the judgment and it failed to schedule an additional hearing to resolve this issue within 45 days from the date of his motion. Russell asserts that he was not provided with a sufficient opportunity to demonstrate to the court that he satisfied Rule 60(b)'s requirements regarding mistake, inadvertence, excusable neglect, or fraud. Russell also contends that the court lacked substantial evidence to support its property division order, and that it abused its discretion when it awarded sole custody of Tyler to Cynthia.

Rule 55(c), M.R.Civ.P., allows for the setting aside of a default judgment under the following circumstances:

For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).

Rule 60(b), M.R.Civ.P., states in pertinent part:

On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect ... or (6) any other reason justifying relief from the operation of the judgment.

As noted in Rule 55(c), a default judgment may only be set aside "for good cause shown." In Blume v. Metropolitan Life Insurance Company (1990), 242 Mont. 465, 791 P.2d 784, this Court clarified the standards which must be met by a defaulting party to establish such good cause. These criteria are: (1) the defaulting party proceeded with diligence; (2) the defaulting party's neglect was excusable; (3) the defaulting party has a meritorious defense to the claim; and (4) the judgment, if permitted to stand, will affect the defaulting party injuriously. Blume, 791 P.2d at 786. We have also clearly stated that the burden of proof rests on the party seeking to set aside the default judgment. Siewing v. Pearson Co. (1987), 226 Mont. 458, 461, 736 P.2d 120, 122.

Where a trial court fails to grant a motion to set aside a default judgment, the finding of even a slight abuse of discretion is sufficient to...