State Ex Rel. Marlenee v. District Court of the Fifteenth Judicial District , 181 Mont. 59 ( 1979 )

IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA ex rel.
CARMEN D. MARLENEE,
Relator,
VS.
DISTRICT COURT OF THE FIFTEENTH
JUDICIAL DISTRICT OF THE STATE
OF MONTANA, IN AND FOR THE COUNTY
OF DANIELS and THE HONORABLE M.
JAMES SORTE, the Judge thereof,
Respondents.
~ - ~ p
O R D E R
PER CURIAM:
Respondents' petition for rehearing and relator's ob-
jections thereto having been filed herein and considered by
the Court,
IT IS ORDERED;
That the opinion in the above named cause, decided on
March 8, 1979, is modified as follows:
(1) On Page 6 , lines 2 through 8 are deleted and the
following put in their place.
"The district court shall enter a decree of dis-
solution of marriage if:
(b) the court finds tha+ t h o rnarr; 3mn : ;--,
"(i) that the parties have lived separate and apart
for a period of more than 180 days next preceding
the commencement of this proceeding; or
"(ii) that there is serious marital discord which
adversely affects the attitude of one or both of
the parties towards the marriage; . . ."
Section
48-316, R.C.M. 1947, now section 40-4-104 MCA.
(Emphasis supplied.)
( 2 ) On page 3 , l i n e 1 from t h e t o p of t h e p a g e ,
1
t h e words "Both c o u n s e l were p r e s e n t . " a r e d e l e t e d .
A s so modified, t h e p e t i t i o n f o r rehearing is denied.
DATED t h i s 2 d -day o f March, 1979.
0
' Justices V
No. 1 4 6 2 0
IN THE SUPHEME COURT OF THE STATE OF MCKCANA
1979
STATE OF KINTANA, ex rel.,
CARMEN D. M m E ,
? m E
Relator,
DISTRICT C O W OF THE FDTEENX
JUDICIAL DISTRICT OF THE STATE OF
MINTANA, I N AND FOR THE COUNTY OF
DANIELS and THE HONOl?Al3LE M. JAMES
SOFEE, the Judge thereof,
Respondents.
ORIGINAL, PFuxEEDING:
C o u n s e l of Record:
For Relator :
G n H u n t l e y , Baker, Wntana
ee
For R e s p o n d e n t s :
James Sinclair, B i l l i n g s , Wntana
S u h i t t e d on briefs: February 13, 1 9 7 9
wided:IRAR 6. - 1979
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
This is an original application for a writ of supervis-
ory control or alternatively for a writ of review seeking
reversal of a District Court order dissolving a marriage. We
ordered briefs filed and the application is now before us for
determination.
The underlying action to which this application relates
is cause number 3096 in the District Court of Daniels County
entitled "In re: The Marriage of Carmen D. Marlenee, Petitioner,
and Ronald C. Marlenee, Respondent." In that action the wife
sought a dissolution of the marriage, custody of the minor child-
ren of the parties, and a division of the marital property whereby
she would receive the husband's equity in the farm and ranch real
estate, machinery and cattle, and the residence and furniture in
Scobey in lieu of child support and the husband would receive all
other property of the parties including a chalet.
The husband filed a response in that action admitting the
marriage was irretrievably broken; admitting that the wife was
a fit person for custody of the minor children and that the child-
ren's best interests would be served by awarding their custody to
the wife; denying that he was not a fit and proper person for the
custody of the children as alleged by the wife; denying that the
property division sought by the wife is equitable; and seeking
an equitable division of the marital property.
During the course of proceedings the deposition of the
husband was taken and various motions were filed by the parties.
On November 9, 1978 the district judge set all pending
motions for hearing in Wolf Point, Roosevelt County, Montana on
November 21. Roosevelt County is in the same judicial district
(the 15th) as Daniels County; the presiding district judge was
the district judge of the entire fifteenth judicial district.
The time and place where the motions would be heard was for the
accomodation of counsel. Both counsel orally stipulated to the
time and place of hearing and that the matter would be deemed
to have been heard in ~anielsCounty.
The order was subsequently vacated because of a conflict
involving the wife's counsel. On November 22 an order was entered
setting the hearing on dissolution of the marriage and all pend-
ing matters for November 28 in Sidney, Richland County, Montana
outside the fifteenth judicial district but before the same pre-
siding judge of the fifteenth judicial district.
The hearing was held as scheduled in Sidney, Richland
County, Montana. Both counsel were present. Neither of the parties
personally appeared. No objections to the time and place of
hearing appear in the record of the hearing.
On November 29, the presiding judge entered an order (1)
granting the husband's motion for judgment on the pleadings on
the divorce issue and declaring the marriage dissolved, (2) re-
serving division of the marital property for a later hearing and
determination, and (3) ordering the parties not to transfer, dis-
pose or encumber the property except in the usual course of
business or for the necessities of life. No findings of fact
or conclusions of law were made or issued, nor was any determin-
ation made on custody of the minor children.
In the application for a writ of supervisory control or
a writ of review now before this Court, the wife seeks to vacate
and set aside the decree dissolving the marriage. She lists two
legal issues for review: (1) whether the District Court can grant
a divorce without a hearing where both parties have alleged that
the marriage is irretrievably broken; (2) whether a divorce can
be granted by a judge outside the district in which he is author-
ized to act.
We accept jurisdiction to review these issues by writ of
supervisory control. We are empowered to do so by Article VII,
Section 2(1) granting us "original jurisdiction to issue, hear,
and determine writs of habeas corpus and other writs as may be
provided by law", and by Article VII, Section 2(2) granting
this Court "general supervisory control over all other courts".
The writ of supervisory control has been a part of the law of
this state for over 50 years. State ex rel. Rubin v District
.
Court et al. (1921), 62 Mont. 60, 203 P. 860; State ex rel. Heinze
v. District Court etc. (1905), 32 Mont. 579, 81 P. 345.
We consider this a proper case for a writ of supervisory
control because relator wife has no plain, speedy and adequate
remedy at law by appeal. Rule 54(b), M.R.Civ,P. provides:
" (b) Judgment Upon Multiple Claims or Involving
-muitiple parties are involbed in an action, the
Multi~leParties. When multiple claims for relief
or
court may direct the entry of a final judgment as
to one or more but fewer than all of the claims
or parties only upon an express determination that
there is no just reason for delay and upon an ex-
press direction for the entry of judgment. In the
absence of such determination and direction, any
order or other form of decision, however designated,
which adjudicates less than all the claims or the
rights and liabilities of less than all the parties
shall not terminate the action as to any of the
claims or parties, and the order or any other form
of decision is subject to revision at any time be-
fore the entry of judgment adjudicating all the
claims and the rights and liabilities of all the
parties."
Here there was no express determination by the District
Court that there is no just reason for delay in judgment on the
claim for dissolution of the marriage nor is there an express
direction for entry of judgment thereon, Without these prerequis-
ites, relator wife cannot appeal from the order dissolving the
marriage at this time nor at any time prior to entry of judgment
or decree on all issues before the District Court. Krusemark v.
Hansen et al. (1979), Mont .-' -P.2d , 36 St.Rep. 159.
Respondent husband directs our attention to section 48-
328, R.C.M. 1947, now section 40-4-108 MCA, providing that a decree
of dissolution of marriage is final when entered, subject to the
right of appeal and Rule 1, M.R.App.Civ.P. providing for an
appeal from a final judgment. Neither of these sections grant
the right of immediate appeal from a partial judgment. Instead
the right of immediate appeal from a judgment on a part but not
all of the claims for relief in a single action is governed by
Rule 54(b), M.R.Civ.P., as discussed in the preceding paragraph.
Having accepted jurisdiction of the application for a
writ of supervisory control, we are confronted with the question
of whether a District Court can grant a judgment on the plead-
ings dissolving the marriage where both parties allege the mar-
riage is irretrievably broken without an evidentiary hearing
and entry of findings to that effect supported by the evidence.
Relator wife argues that the District Court cannot under
the Uniform Marriage and Divorce Act (UMDA) enacted by the Montana
legislature cite McKim v. McKim (1972), 100 Cal. Rptr. 140, 493
P.2d 868, in support. Respondent husband contends the District
Court can, or alternatively that the pleadings plus his deposition
empower the District Court to grant judgment of dissolution.
1379; Friedman v. Friedman (1974), 233 Ga. 254, 210 S.E.2d 754;
and the dissenting opinion in McKim, supra.
We note that although the District Court indicated at the
hearing respondent husband's deposition would be considered, the
order dissolving the marriage was simply a judgment on the plead-
ings. It will be so considered in this opinion.
Whatever the law may be in other jurisdictions, the Montana
legislature has established the law in Montana. The UMDA as
enacted in Montana provides:
"The court, after hearing, shall make a finding
whether the marriage is irretrievably broken
. . ." Section 48-319, R.C.M. 1947,-now section
40-4-107 MCA. (Emphasis supplied.)
No such finding was made in this case.
The UMDA as enacted in Montana further provides:
"The district court shall enter a decree of
dissolution of marriage if:
"(b) the court finds that the marriage is irre-
trievably broken, which findings shall be supported
by evidence." Section 48-316, R.C.M. 1947, now
section 40-4-104 MCA.
No such evidence was introduced or findings made in this case.
Respondent husband argues that the District Court's order
is a judgment on the pleadings and that all necessary allegations
are contained in the petition and response in that court, both
of which were under oath and all pertinent and required allega-
tions were admitted.
We have no quarrel with the general law permitting entry
of judgment on the pleadings in cases where the necessary allega-
tions are admitted. However, Montana law is equally clear that
a specific statute is enacted governing a particular subject, the
general statute or law must yield to the specific statute to the
extent of any conflict. Huber v. Groff (1976), Mont . I
558 P.2d 1124, 1134, 33 St.Rep. 1124; State ex rel. Browrnan v.
Wood (1975), 168 Mont. 341, 543 P.2d 184. Here the specific stat-
utes governing dissolution of marriage (UMDA) require the court
to make findings that the marriage is irretrievably broken supported
by evidence which controls over any general statutes or law on
judgments on the pleadings to the extent of any inconsistency.
In view of our holding on this issue we need not reach or
decide the second issue.
We hold the judgment of dissolution of the marriage was
prematurely entered for the reasons stated in this opinion.
Chief Justice
We concur: