Wilson v. Wilson ( 1982 )

No. 80-317
I N THE SUPREME COURT O THE STATE O F MONTANA
F
1982
I N RE THE MARRIAGE OF:
K M WILSON,
E P
P e t i t i o n e r and Respondent,
and
BETTY WILSON,
Respondent and A p p e l l a n t .
Appeal from: D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e County of Y e l l o w s t o n e
Honorable Diane G. B a r z , J u d g e p r e s i d i n g .
Counsel of Record:
For A p p e l l a n t :
Holmstrom, Dunaway and West, B i l l i n g s , Montana
R o b e r t W. Holmstrom, B i l l i n g s , Montana
For Respondent:
B e r g e r , S i n c l a i r and N e l s o n , B i l l i n g s , Montana
James J . S i n c l a i r , B i l l i n g s , Montana
S u b m i t t e d on b r i e f s : March 4 , 1982
Decided: May 6 , 1982
1982
Filed: M~Y
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the
Court .
Wife appeals from the denial of her motion to amend
findings and judgment and her motion for new trial. She
also challenges the property distribution, child support and
maintenance awards made by the Thirteenth Judicial District
Court in this dissolution action. We vacate the order of the
District Court.
The following issue is dispositive:
Whether the District Court erred in denying wife's
motion to amend findings and judgment and her motion for new
trial.
The parties were married in 1962. At the time of their
divorce in 1980, they had three minor children, who they
agreed should stay with the wife. The District Court entered
its findings and conclusions on May 27, 1980, and its decree
on May 29, 1980. Notice of entry of judgment was mailed to
the parties' counsel on May 29, 1980.
On June 10, 1980, the wife filed with the court, and
personally served upon the husband's counsel, her motion to
amend findings and judgment, and her motion for new trial.
The motions were opposed by the husband and denied by the
District Court on the grounds that the wife had failed to
comply with Rule 59 (b) and Rule 59 ( g ) of the Montana Rules
of Civil Procedure. The wife appeals to this Court.
The District Court based its denial of the wife's
motions upon Rule 59(b), M.R.Civ.P.:
"A motion for a new trial shall be served not
later than 10 days after service of notice of
the entry of the judgment. "
and Rule 59(g), M.R.Civ.P. :
"A motion to alter or amend the judgment shall
be served not later than 10 days after the
service of the notice of the entrv of the judg-
ment, and may be combined with the motion for
a new trial herein provided for. This motion
shall be heard and determined within the time
provided hereinabove with respect to a motion
for a new trial."
The wife filed her motions with the court and served them
upon husband's counsel twelve days after notice of entry of
judgment was mailed to her. The July 17, 1980, order of
the District Court denying the wife's motions did not make
reference to Rule 6 (e), M.R.Civ.P.
This Court has held that, for purposes of determining
timeliness of subsequent action where Rule 6(e) applies,
service is not "effective" until three days after notice of
entry of judgment is mailed.
"Here the commissioners' report was served on
the State on June 15. Service by mail is
complete upon mailing. Rule 5(b), M.R.Civ.P.
[Citations omitted. 1
"However, service did not become effective
until June 18 for the purpose of calculating
the 30 day appeal period. Rule 6(e), M.R.Civ.P.,
states:
"'(e) Additional -- After Service - -
- Time by Mail.
~henevera party - - right
has the or is required
- do some act or take some proceedings with-
to - - -
in-a prescribed period after the service of
-
- notice or other paper upon- - - notice
a - him and the
or paper i served upon - - -
- s him by mail, 3 days
shall - added - - prescribed perisd.'
be to the
"In accord: Lewistown Propane Co. v. Utili-
Q Builders, Inc., Mont., 552 E2d-1100, 33
St. Rep. 745.
"Thus, the 30 day appeal period would normally
end on July 18. . ."
(Emphasis added.) State
By and Through Dept. of Highways v. Helehan
(1977), 171 Mont. 473, 475, 559 P.2d 817, 818-
819. See also State By and Through Dept. of
Highways v. Helehan (1980), Mont. I
615 P.2d 925, 928, 37 St.Rep. 1516, 1518.
In the case at bar, the wife had, as Rule 6(e) requires,
the right to "take some proceedings within a prescribed
period after the service of a notice," - to move for
viz.,
amended findings and judgment, and for new trial, within ten
days after service of notice of entry of judgment. The
notice was served by mail on May 29, 1980. Clearly Rule
6(e) is applicable. The wife had an additional three days,
or until June 11, 1980, to serve her Rule 59 motions. We
find that the wife's Rule 59 motions, served on June 10,
1980, were timely.
We vacate the District Court's order of July 17, 1980,
denying the wife's Rule 59 motions, and remand this cause to
the District Court for consideration of those motions on
their merits.
We Concur: