In Re the Marriage of Nordberg ( 1995 )

No. 95-009
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
IN RE THE MARRIAGE OF
PATRICIA HALSE NORDBERG,
JUN 01 1995
Petitioner and Appellant,
and
DEAN V. NORDBERG,
Respondent and Cross-Appellant.
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Madison,
The Honorable Frank M. Davis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Brenda R. Cole, Swandal, Douglass, Frazier & Cole,
Livingston, Montana
For Respondent:
w. G. Gilbert, Jr., and W. G. Gilbert III,
Attorneys at Law, Dillon, Montana
Submitted on Briefs: April 27, 1995
Decided: June 1, 1995
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
The parties appeal and cross-appeal an order of the District
Court for the Fifth Judicial District, Madison County. In that
order, the court entered judgment for a sum due and owing based
upon a previous decree of dissolution of marriage. We reverse and
remand.
The dispositive question is whether the District Court denied
Dean V. Nordberg due process by entering judgment after an
"informal scheduling conference." Because we answer that question
in the affirmative, we do not reach the issues of whether Patricia
Halse Nordberg should have been awarded interest on the judgment
and costs of a previous appeal or whether the court erred ln
failing to enforce portions of the 1987 judgment in favor of Dean.
The parties married each other twice. Their first marriage
was dissolved in 1987. The 1987 decree of dissolution incorporated
a property settlement agreement requiring Dean to pay Patricia
$25,000 one year from the date of the agreement and $25,000 two
years from the date of the agreement, for her interest in ranch
assets acquired during the marriage.
Five months after their 1987 dissolution, Dean and Patricia
remarried. Their second marriage was dissolved in 1993. As part
of the second decree of dissolution, the District Court declared
null and void the judgment entered in the 1987 dissolution.
Patricia appealed the second decree of dissolution. In re
Marriage of Nordberg (1994), 265 Mont. 352, 877 P.2d 987. This
Court reversed, and remanded to the District Court to reinstate the
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1987 judgment and for further proceedings to determine the balance
Dean owed Patricia under that judgment. Nordberg, 877 P.2d at 992.
Patricia then filed with the District Court a Memorandum of
Costs and Disbursements for the appeal. Dean objected and filed a
Motion to Re-tax Costs.
In an October 18, 1994 order, the court set up a conference
call. The order stated, in its entirety:
The Court hereby schedules a Court counsel
conference to address the format for the disposition of
all pending mattes [sic] in this cause for Tuesday,
November 8, 1994 at 1:30 pm.
The conference shall be by telephone to the Dillon
office of the Judge (406/683-5841), the call to be
initiated by counsel for PATRICIA.
DATED this 18 of October, 1994.
/s/ Frank M. Davis
District Judge
COMMENT
The Court notes that November 8th is Election day,
but there is no reason that an informal scheduling
conference cannot be conducted on that day after Court
and counsel have discharged their civic duty at the
polls.
Since this case seems destined to go on in perpetu-
ity, at what must be a staggering cost, the Court makes
this one last appeal for compromise and settlement. The
alternative is recusal and a new judge. If this occurs
then the case will be prolonged for months, perhaps
years.
1'm perplexed that one or both parties didn 1 t timely
substitute me after remand! In any case voluntary
recusal is now the only option, but we will discuss it on
Election day.
/s/ Frank M. Davis
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During the November 8 conference call, the court apparently
asked Patricia to submit her calculation of the amount still due on
Dean's obligation to her under the 1987 judgment. The calculation
which Patricia subsequently submitted showed that as of November 8,
1994, Dean owed her $12,406.84 in judgment monies and accrued
interest. Patricia provided a copy of her calculation to Dean's
counsel.
On November 14, 1994, without holding any further proceedings,
the court granted Patricia a money judgment against Dean, "in the
amount of $10,000, with interest thereon at the legal rate from
this date." The court stayed execution of the judgment for six
days to allow Dean the opportunity to appeal, and ordered that each
party would be responsible for its own costs. The Court denied
Patricia's memorandum of costs.
Patricia appeals and Dean cross-appeals.
Did the District Court deny Dean due process by entering
judgment after an "informal scheduling conference"?
Dean maintains he has made payments toward the 1987 judgment
which were not included In Patricia's calculations. He points out
that he was not allowed an opportunity to present evidence on this
subject before the court issued its November 14, 1994 order.
No person shall be deprived of property without due process of
law. Art. II, Section 17, Mont. Const.
"Due process of law" refers to and means certain funda-
mental rights which our system of jurisprudence has
always recognized, that is, of requiring notice to be
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...
given and a hearing had before property may be taken, or
impressed with a lien[.]
Great Northern Railway Co. v. Roosevelt County (1958), 134 Mont.
355, 362, 332 P.2d 501, 505.
The judgment entered against Dean on November 14, 1994,
created a lien against his non-exempt Madison County property. See
§ 25 - 9 - 3 01 (2), MCA. Therefore, we conclude that due process
entitled him to notice and a hearing prior to entry of that
judgment.
Even if we were to construe the November 8 telephone confer-
ence call as a hearing for purposes of due process, the October 18
order set forth above did not provide notice that the conference
call might result in a lien against Dean's property. In no way did
it provide notice that Dean should prepare to set forth, during the
conference call, evidence of his payments on the 1987 judgment.
Patricia argues that calculation of the amount Dean owed her
under the 1987 decree of dissolution may be accomplished simply by
looking at the record, so that no hearing was required. She cites
Young v. Flathead County (1990), 241 Mont. 223, 786 P.2d 658, for
the proposition that a district court is not required to conduct an
evidentiary hearing in a matter remanded from this Court. The
principle set forth in Young was not that broad. Thi s Court's
holding in Young was that given the terms under which that case was
remanded, no further evidentiary hearing was required. Young, 786
P.2d at 661.
Patricia contends that, on remand, the District Court was
precluded from considering payments which Dean asserts went toward
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the 1987 judgment. Her contention is apparently based upon this
Court's statement that "according to the record, Dean still owes
for this [1987] judgment." Nordberg, 877 P.2d at 990.
The record before this Court on the first appeal did not
establish that the 1987 judgment had been satisfied. Although the
amount due from Dean to Patricia under that judgment was a matter
of record, over seven years had passed between the entry of
judgment and the November 8, 1994 conference call. It was
undisputed that some payment had been made in the interim. We
directed "further proceedings to determine the balance owed to
Patricia from the judgment." Nordberg, 877 P.2d at 992. The
amount remaining due on the 1987 judgment was clearly a subject
upon which the court should obtain evidence, given the terms under
which this case was remanded.
Dean was not given any opportunity to respond to Patricia's
calculation of the amount remaining due on the 1987 judgment. We
conclude that due process required that Dean be given notice and an
opportunity to present evidence of his payments toward the 1987
judgment before a new judgment was entered against him.
We reverse and remand this action for further proceedings
consistent with this opinion.
. .'
We concur:
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