In Re the Marriage of Woolsey , 214 Mont. 106 ( 1984 )

NO. 8 4 - 1 8 5
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
IN RE THE MARRIAGE OF
GEORGE R. WOOLSEY,
Petitioner and Respondent,
and
GERTRUDE JOSUCKS WOOLSEY,
Respondent and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoul-a,
The Honorable John S. Henson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Morales & Volinkay; Richard Volinkaty, Missoula,
Montana
For Respondent:
Jeffrey H. Langton, Hamilton, Montana
Submitted on Briefs: Oct. 4, 1984
Decided: December 13, 1 9 8 4
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Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Ernestine Woolsey Miller, as personal representative of
her mother's estate, appeals from the order of the District
Court, Fourth Judicial District, Missoula County, refusing to
reopen and moc7ify a 1976 marital dissolution decree
terminating the marriage of George and Gertrude Woolsey.
We affirm the order of the District Court.
The facts are unique. George and Gertrude were married
in Bellefield, North Dakota on November 29, 1945. They moved
to a small farm in the Bitteroot Valley near Stevensville,
Montana. The couple adopted two children, Clayton and
Ernestine. George worked on the farm and Gertrude taught
school. Gertrude contributed her earnings and her services
to the farm and family. The title to the family farm was
held by George and Gertrude as joint tenants with right of
survivorship.
In July 1975, Gertrude suddenly vanished from the
Stevensville area without notice or word to George or other
family members. Her whereabouts since are completely unknown
except that George has testified that he received a telephone
call from Gertrude in September or October 1975, which
prompted him to travel by bus to Chicago, Illinois, in search
of his wife. George testified that after he arrived in
Chicago, he talked to Gertrude twice in the bus depot and in
one conversation, Gertrude told him she was not coming home
and that he could keep all of the couple's property.
Inconsistencies in his testimony regarding the 1975 Chicago
trip were shown on his cross-examination.
On March 30, 1976, George filed a petition in the
Missoula County District Court for dissolution of his
marriage to Gertrude. In his complaint, he alleged that he
d.id not request the assistance of the court in any division
of real and personal property which may have been acquired
during the marriage.
On the allegation that Gertrude's whereabouts were
unknown, and the return of the sheriff of Ravalli County that
she could not be found in that county, the District Court
ordered service of summons upon Gertrude by publication,
which was duly carried out. On June 10, 1..976, the District
Court entered its decree of dissolution of the marriage
between the parties, decreeing with respect to the marital
property as follows:
"2. That the settlement of the ownership of real
and personal property has been made between the
parties and the Court makes no order with respect
thereto. "
Thus, following the decree of dissolution, the title to
the real estate of the parties remained in joint tenancy with
right of survivorship, and the husband took possession of the
personal property of the parties.
On June 3, 1983, George commenced a quiet title action
in Ravalli County District Court naming Gertrude, the two
adopted children Ernestine and Clayton Woolsey, and. a]-1
persons unknown as defendants. The object of the quiet title
action is to quiet the title in George to the real property,
and also to certain United States war bonds, automobiles, and.
Gertrude's interest in a teacher's retirement plan.
In September 1983, Ernestine commenced proceedings in
the Missoula County District Court in which it was determined
that her mother Gertrude was presumed dead, she having been
missing for some seven years. Ernestine was appointed
personal representative of Gertrude's estate. As personal
representative, Ernestine filed a motion in the marriage
dissolution action between George and Gertrude to reopen and
modify the decree of dissolution regarding the property
disposition.
The basis of Ernestine's motion to reopen the marriage
dissolution decree is that the representations of George to
the effect that the parties had mutually adjusted their
rights to their property was fraudulent, and that it was the
mandatory duty of the District Court at the time of the
dissolution to distribute equitably the marital property
between the parties.
George filed a motion in the marriage dissolution cause
to quash or dismiss Ernestine's motion to reopen the
dissolution decree. On January 11, 1-984, the District Court
granted the motion to quash or dismiss the motion to reopen,
holding that Ernestine's motion was untimely under Rule
60(b) (3), M.R.Civ.P., and that because she had chosen a
remedy, she could not bring an independent action to set
aside the marital dissolution decree under the residual
clause of Rule 60(b), M.R.Civ.P.
Section 40-4-202, MCA, provides that in a proceeding for
dissolution of marriage, the District Court, "shal.1 ...
f j-nally, equitably apportion between the parties the
properties and assets belonging to either or both . . ." We
have stated that this language of the statute is a mandate to
the District Court. In Re Marriage of Flair (1977), 178
Mont. 220, 583 P.2d 403, 405. We have also said that before
a determination be made as to dividing the property, there
must be a determination of the net worth of the marital
estate. Hamilton v. Hamilton (1-980), 186 Mont. 282, 607 P.2d
102, 103; Peterson Tr. Peterson (1981), 195 Mont. 157, 636
P.2d 8 2 1 , 824. It is petitioner's contention that the court
failed in a mandatory duty respecting the property and as
such the court having jurisdiction of the dissolution must
proceed now to determine between the parties their rights to
the marital property.
Section 40-4-208 (3), MCA, states that the provisions as
to a decree as to property disposition may not be revoked or
modified by a court except upon the written consent of the
parties, or "if the court finds the existence of conditions
that justify the reopening of a judgment under the laws of
this state." Section 40-1-105, MCA, makes the Montana Rules
of Civil Procedure applicable to all proceedings relating to
marital dissolutions. Therefore, Rule 60 (b), M.R.Civ.P.
governs when and if a property disposition may be revoked,
reopened or modified. Rule 60 (b) (3), limits the right of a
court to relieve a party from a final judgment on the basis
of intrinsic or extrinsic fraud to a motion made not more
than 60 days after the judgment has been taken or entered.
On that basis, the District Court held that Ernestine's
motion to reopen the decree of dissolution was untimely.
There is no attack by Ernestine in this case that the
District Court had no personal jurisdiction of Gertrude in
order to render judgment in the marital dissolution cause.
The critical point in this lawsuit is that the marital
dissolution decree, as between George and Gertrude, had
become final. No appeal was taken by Gertrude from the final
judgment. A district court has no jurisdictior, to allow a
defaulting party after publication of summons to appear in
the same action under Rule 60(b) more than 60 days after
rendition of judgment except to set aside a iudgment und.er
the residual clause of Rule 60(b). This is so even though
the court here admittedly failed in its mand-atory duty to
apportion equitably the marital property:
"Under the Uniform Marriage and Divorce Act,
section 40-4-201.(2), MCA, it was the duty of the
court to inquire into the conscionability of the
property settlement before it was approved, or it
was the duty of the wife to ask the court to
inquire into the conscionability of the decree
before it was final ly approved. When neither the
court nor the wife did this, this issue became
final when the appeal time expired. The wife had
no right six years later to attempt to relitigate
this issue which the law requires to be decided
before the entry of the decree if either the court
or one of the parties questions the conscionahility
of the decree. R.es judicata clearly bars this
claim ... Res judicata applies to issues that
have been raised and decided, and to those that
should have been raised and decided, and which are
necessarily included in a final judgment." Hadford
v. Hadford (Mont. 1981), 633 P.2d 1181, 1184, 38
St.Rep. 1308.
We iterated. this proposition in Marriage of Lance
(1981), 195 Mont. 176, 635 P.2d 571, 580-581:
"It is too late now for him [Lance] to attack the
decree on the ground that the District Court had
failed to determine the net worth of the parties,
or abused its discretion in failing to determine
the value of each asset, or committed error in
sawarding custody of the minor children, or in
setting forth visitation rights, or in granting
spousal maintenance. John not having appealed from
the final decree in timely fashion, the decree has
become conclusive as to all issues raised by the
pleadings actually litigated and adjudged that is
shown on the face of the decree and necessarily
determined in order to reach the conclusion
announced (citing authority) " .
The right of Ernestine as personal representative of the
estate of her deceased mother to move the court for relief
from judgment entered by fraud against the decedent is
undoubted. Gillen v. Gillen (1945), 11.7Mont. 496, 159 P.2d
511. However, Ernestine's right in that regard is no greater
than the decedent herself could have exercised had she sought
the relief.
The District Court determined tha.t beczuse Ernestine's
motion for relief was not timely under Rule 60(b) ( 3 ) , she had
chosen a remedy, and therefore could not proceed under the
resid.ua1 clause of Rule 60(b). While t7 do not reach the
re
question of the propriety of that position of the District
Court, i.t is nevertheless c1ea.r in this cause that Ernestine
may not bring her mother's case within the provisions of the
residual clause.
In Peterson, v. Montana Ba.nk of Bozeman, et al. (Mont.
1984), 7-
,
P.2d - 41 St.Rep. 1575, 1580, we said:
"Rul-e 60 was adopted in the federal court system,
and by us, in order that substantial justice might
be accomp1.ished. We find in Rule 60 (b) in the
early part of its language, six different grounds
upon which a court may relieve a party from a
judgment, order or proceeding. There is a
stricture, however, in that the judgment, order or
proceeding must be final, to justify relief under
the six grounds then set out. However, Rule 60 (b)
does not end there. There is a residual clause
which is a broad recognition of the power inherent
to a court. It contains this provision:
11 1
...
This rule does not limit the power of the
court to entertain an independent action to relieve
a party from a judgment, order or proceeding, or to
grant relief to a defendant not actually personally
notified as may be required by law, or to set aside
a judgment for fraud upon the court..'"
With respect to reopening a judgment for fraud upon the
court, we have stated in Lance, 195 Mont. at 179, 180:
"It is obvious that John's motion to reopen the
decree, filed 1 1/2 years after the decree had been
entered, is not timely as a 60 day motion under
Rule 60 (b), M.R.Civ.P. There a.re no time limits,
however, to such motion if in essence the motion is
one to reopen or vacate a judgment because of a
fraud upon the court. (Citing authority. 1
Eowever the fraud, to constitute grounds for
reopening the decree must be extrinsic, that is it
must be such fraud as denied the adversary an
opportunity to have a trial or to fully present his
side of the case. (Citing authority.)
"Extrinsic fraud upon the court, that is
representations or concealments made during the
court proceedings, assuming they are false or
fraudulent are nevertheless not grounds for
reopening a decree of judgment. (Citing
authority. ) "
Ernestine's motion to reopen the dissolution decree
necessarily depends upon allege6 misrepresentations or
concealments by George to the court prior to the entry of the
dissolution decree. If Gertrude had appeared in the divorce
action, and the representations were indeed false, such
representations could have been contested by her. As we have
stated, it is too late, once the jud-gmenthas become final,
for a defaulting party to raise issues of misrepresentations
which could have been contested in the cause prior to the
entry of the judgment from which relief is sought.
Accordingly, we affirm the District Court.
We Concur: