In Re the Marriage of Carlson ( 1986 )

No. 85-402
IN THE SUPREME COURT O F THE STATE OF MONTANA
1986
IN RE THE MARRIAGE OF
KENNETH RAY CARLSON,
Petitioner and Respondent,
and
VICKIE LYNN CARLSON,
Respondent and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Steven J. Shapiro, Helena, Montana
For Respondent:
Kenneth Ray Carlson, pro se, Placentia, California
Submitted on Brief: Nov. 21, 1985
Decided: February 13, 1986
Filed:
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Appeal by Vickie Lynn Carlson from an order entered by
the District Court, Thirteenth Judicial District, Yellowstone
County on June 24, 1985. For the reasons hereafter stated,
the cause is remanded.
These parties were before us in an earlier case, Carlson
v. Carlson (Mont. 1984), 693 P.2d 496, 41 St.Rep. 2419.
Kenneth and Vickie had married in 1 9 7 0 and divorced on July
5, 1979. They have three children, twjns now 12 years old
and another child now 9 years old.
In the original decree of marital dissolution, in 1979,
the District Court had provided that Kenneth pay to the wife
as custodian of the minor children, the sum of $ 1 5 0 . 0 0 for
each child per month for their support and maintenance. The
decree incorporated a contractual agreement to that effect.
On April 6, 1984, the District Court, on application of
Kenneth, by order amending the marital dissolution decree,
reduced the payments to be made by Kenneth to Vickie to the
sum of $ 7 5 . 0 0 per month per child. That order was appealed
to this Court, and was the subject of our opinion in Carlson
v. Carlson, supra.
The effect of our opinion in the earlier case was to
reverse the District Court's reduction of Kenneth's
obligation for child support payments on the grounds that the
District Court had no evidence before it to prove that the
husband's change in earning circumstances were continuous,
that his unemployment was permanent, or that his earning
capacity had been substantially reduced. We remanded the
cause for further evidence to be produced before the District
Court as to the father's present earning capacity. Carlson,
693 P.2d at 501, 41 St.Rep. at 2425. We also stated that as
to the claimed attorney fees, such an award on behalf of
Vickie was not mandatory upon the District Court but was open
for further proceedings before the District Court.
After our remand to the District Court, counsel who
until then had represented Kenneth obtained an order from the
District Court permitting their withdrawal. Since April 11,
1985, Kenneth has not been represented by counsel in this
cause.
The proceedings that followed in the District Court did
not track. exactly our order on remand. Instead counsel for
Vickie (Vickie has remarried, and her present husband, an
attorney, is also her counsel in all of these proceedings)
filed three motions in the District Court:
(1) A motior, to modify the decree of marital
dissolution so as to permit Vickie to claim her support of
the three minor children a-s tax exemptions and deductions for
federal and state income tax purposes.
(2) A motion for leave to file proposed findings and
judgment (none of which proposed findings and judgment are in
the record).
(3) A motion for summary judgment in favor of Vickie
and against Kenneth, which summary judgment would provide
(a) that Kenneth's petition for modification of the child
support payments was d.enied; (b) that Kenneth's obligation
to pay $150 per month per child for the support of the three
minor children shall continue until their respective ages of
majority; (c) that Kenneth provide medical insurance
coverage for the minor children; (dl that Vickie be given
judgment aga.inst petitioner for past due child support in the
sum of $6,765.83 as of May 31, 1985; (el that Vickie be
given judgment for costs of $512.80; and (f) that Vickie be
given judgment for attorney fees in the sum of $7,050.00.
Hearing on these motions was scheduled by the District
Court for June 19, 1985 and notice of the hearing on the
motions was served by mail upon Kenneth at his address in
Placentia, California. Kenneth did not appear for the
hearing, nor was he represented by counsel. We can only
speculate as to what happened at the hearing for no
transcript of those proceedings has been provided on this
appeal.
Following the hearing the District Court issued. two
orders. The first, on June 24, 1985, is the order which is
the subject of this appeal. In that order, the District
Court vacated its mod.ification of judgment earlier made on
April 6, 1984, and. reinstated the duty of Kenneth to pay
child support in the sum of $150.00 per month per child. On
June 26, 1985, the District Court entered a second order, in
which it provided that Vickie should he granted the right to
claim the tax exemptions for the minor children.
Vickie's counsel was apparently dissatisfied with the
ord.er of June 24, 1985. He did not however file a Rule
52 (b), M.R.Civ.P. motion to amend or alter the judgment but
instead wrote a letter to the court. He pointed out in the
letter that "there still remain the issues of the arrearage
of support, costs, attorneys fees, and. the tax deduction for
the children." The letter stated:
After the discussion with you at the hearing, we
are willing to forego our request for the tax
deductions for the children for the 1983 and 84 tax
years if you will modify and sign the order I
submitted to allow the Respondent to claim these
deductions for 1985 and thereafter. If you will
also sign the Summary Judgment I submitted with
this change noted regarding the tax deductions,
then I feel the ma.tter will. he closed.
The order of June 26, 1985 is apparently the response of
the District Court to this letter.
On July 19, Vickie's counsel filed a notice of appeal to
this Court from the order of June 2 4 , 1.985 on the grounds
that "it fails to give her judgment for past due child
support, attorney fees and costs."
On July 30, 1985, the District Court entered a judgment,
docketed August 8, 1985, which made the following provisions:
(1) The original decree of dissolution was again
"reinstated"; (2) Vickie was given judgment against Kenneth
for past due child support in the sum of $6,765.83, including
interest from May 31, 1985; (3) costs were awarded in the
sum of $512.80; and (4) attorney fees were awarded in the
sum of $3,000.00.
Notice of entry of judgment has been given to Kenneth as
to the judgment of July 30, 1985. No such notice has been
given to Kenneth of the order of Jun.e 2 4 , 1985, or the order
of June 26, 1985. Rule 77 (d) , M.R.Civ.P.
This case is a legal hodgepodge, and reminds us of the
gentleman who was so cross-purposed that he could mess up a
one car funeral. The legal effect of what has occurred is
this:
(A) The iudgment - July - -
of 30, 1985. This judgment is
invalid. It was entered after Vickie's notice of appeal had
been filed which had the effect of depriving the District
Court of further jurisdiction. McCormick v. McCormick
(1975), 168 Mont. 136, 541 P.2d 765.
(R) The order - - - 26, -
of June 1985. This order has not
been appealed by Viclcie. It will become final as to Kenneth,
if n o t i c e o f i t s e n t r y i s s e r v e d upon him p r o p e r l y and h e
t a k e s no a p p e a l t h e r e f r o m . Morrison v. Higbee ( ~ o n t .1 9 & 3 ) ,
668 P.2d 1029, 40 St.Rep. 1031.
(C) - order
The - -n- 24, -
of Ju e 1985. Vickie has appealed
from o n l y a portion of the judgment here. As t o Vickie
t h e r e f o r e t h e judgment o f t h e D i s t r i c t C o u r t r e i n s t a t i n g t h e
o b l i g a t i o n o f Kenneth t o pay t h e sum o f $150.00 p e r month p e r
c h i l d h a s become f i n a l . I t w i l l become f i n a l upon Kenneth,
if a f t e r he h a s been p r o p e r l y served w i t h a n o t i c e o f its
entry, he does not appeal therefrom. M o r r i s o n v. Higbee,
supra.
V i c k i e ' s n o t i c e o f p a r t i a l a p p e s l from t h e o r d e r o f J u n e
24, 1985 r e l a t e s t o the f a i l u r e of t h e order t o include a
judgment for past due child support, attorney fees, and
costs. C u r i o u s l y , t h e s e a r e t h e f a c t o r s t h a t w e r e h a n d l e d by
t h e D i s t r i c t Court in its judgment of July 30, 1985 which
must be declared void hecause Vickie filed the notice of
appeal.
W e d o n o t have a t r a n s c r i p t o f t h e h e a r i n g t h a t o c c u r r e d
on J u n e 1 9 , 1985. There i s i n t h e a p p e a l r e c o r d an a f f i d a v i t
showing t h e amount o f t h e a r r e a r a g e . The o t h e r q u e s t i o n o f
attorney fees is a matter within the discretion of the
District Court. Carlson, 6 9 3 P.2d at 501, 41 St..Rep. at
2425.
On t h e r e c o r d , Vickie is not e n t i t l e d t o costs, either
f o r h e r f i r s t appeal o r t h i s appeal, because such c o s t s w e r e
not claimed. i n a manner p r o v i d e d i n 5 25-10-503, MCA by a
h i l l of c o s t s prepared un6er S 25-10-501, MCA. It is too
late now for costs on the first appeal to be properly
claimed. Because o f the s t a t e of the record, we further
determine that Vickie is not entitled to costs on this
appeal.
Accordingly, this matter is remanded to the District
Court with the following instructions:
(1) The order of June 24, 1985, reinstating child
support to be paid by Kenneth in the sum of $150.00 per month
per child is affirmed as to Vickie.
(2) The order of June 26, 1985, providing that the tax
exemptions shall be claimed by Vickie, is affirmed as to
Vickie.
(3) The District Court shall enter judgment in favor of
Vickie and against Kenneth for arrearages in child support in
the sum of $6,765.83 which includes interest to Flay 31, 1985,
and further interest on the principal balance of $6,709.94 at
10% per annum until paid..
(4) Vickie is not entitled to recover costs on this
appeal nor to costs on the first appeal because of failure to
claim the same under § 25-10-503, MCA; Vickie may claim such
other costs in future proceedings to which the District Court
may find she is entitled.
(5) The District Court shall. determine the amount of
attorney fees, if any, to which Vickie may be entitled, but
no attorney fees may be awarded for this appeal.
Reversed and remanded, with i ~ u c t i o n s .
Justice
We Concur: