Marriage of Jones ( 2013 )

October 15 2013
DA 13-0260
IN THE SUPREME COURT OF THE STATE OF MONTANA
2013 MT 303N
IN RE THE MARRIAGE OF
DEREK M. JONES,
Petitioner and Appellee,
v.
TAWNY FISHER-JONES,
Respondent and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DR 12-1064
Honorable Gregory R. Todd, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Tawny Fisher-Jones (Self-Represented); Billings, Montana
For Appellee:
Derek M. Jones (Self-Represented); Billings, Montana
Submitted on Briefs: September 26, 2013
Decided: October 15, 2013
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Tawny Fisher-Jones appeals from an order of the Thirteenth Judicial District
Court, Yellowstone County, denying her motion to set aside decree. We affirm.
¶3 The issue presented on appeal is whether the District Court abused its discretion in
denying Fisher-Jones’s motion to set aside the decree.
¶4 Fisher-Jones and Derek Jones were married in 2004 and have four children.
Fisher-Jones is currently incarcerated at the Montana Women’s Prison. On September
18, 2012, Derek Jones petitioned for dissolution of the marriage. A sheriff’s return of
service indicates that on September 19, 2012, Civil Officer Curtis Gibbs personally
delivered to Fisher-Jones at the Montana Women’s Prison a “summons and temporary
economic restraining order, petition for dissolution of marriage, petitioner’s declaration
of assets, debts, income and expenses and petitioner’s proposed parenting plan.”
Fisher-Jones alleges that she was never personally served with any of these documents,
and instead became aware of the dissolution proceeding only in “mid-October.”
¶5 A default was entered October 12, 2012, and the final decree of dissolution was
entered October 17, 2012. Fisher-Jones moved to set aside the decree. The District
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Court denied her motion on December 4, 2012, finding that her claim of lack of service
was refuted by the sheriff’s return. On January 4, 2013, Fisher-Jones moved again to set
aside the decree, specifically citing M. R. Civ. P. 60(b). Her second motion restated her
claim of lack of service, but added no new support. That motion was also denied.
¶6 This Court will reverse the denial of a motion to set aside a default judgment for
only a slight abuse of discretion. Wittich Law Firm, P.C. v. O’Connell, 2013 MT 122,
¶ 14, 370 Mont. 103, 304 P.3d 375. The party seeking to set aside the default judgment
bears the burden of persuasion. Wittich, ¶ 14.
¶7 A default judgment may be set aside due to surprise, if the judgment is void, or for
any other reason that justifies relief. M. R. Civ. P. 55(c); M. R. Civ. P. 60(b). A
judgment is void if the respondent is not properly served. Nikolaisen v. Adv. Transformer
Co., 2007 MT 352, ¶ 16, 340 Mont. 332, 174 P.3d 940. A sheriff’s return of service “is
prima facie evidence of the proof of the process or notices having been served as stated.”
Section 25-3-302, MCA. The statements in the sheriff’s return of service may be
overcome by proof that is “clear, unequivocal and convincing.” Sewell v. Beatrice Foods
Co., 145 Mont. 337, 342, 400 P.2d 892, 894 (1965). Without more, the assertion of an
individual that he or she was not served, no matter how confident, is not enough to meet
this burden. Sewell, 145 Mont. at 342, 400 P.2d at 894.
¶8 Fisher-Jones alleges that she was not served with notice of the petition for
dissolution. The sheriff’s return clearly states that Fisher-Jones was personally served on
September 19, 2012, by Officer Gibbs. Fisher-Jones has not presented anything other
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than her own assertions to rebut the statements contained in the sheriff’s return. This is
not enough to establish the “clear, unequivocal and convincing” proof needed to
overcome the sheriff’s return. Sewell, 145 Mont. at 342, 400 P.2d at 894. The District
Court concluded that Fisher-Jones had not demonstrated any grounds for relief under
M. R. Civ. P. 60(b). We hold that the District Court’s decision to deny her motion was
not an abuse of discretion.
¶9 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our Internal Operating Rules, which provides for memorandum opinions. The issues in
this case are ones of judicial discretion, and there clearly was not an abuse of discretion.
¶10 Affirmed.
/S/ MIKE McGRATH
We concur:
/S/ PATRICIA COTTER
/S/ JIM RICE
/S/ LAURIE McKINNON
Justice Beth Baker, dissenting.
¶11 We have long recognized a strong preference for deciding cases on the merits
rather than by default. Steyh v. Steyh, 2013 MT 175, ¶ 8, 370 Mont. 494, 305 P.3d 50.
When a motion to set aside a default “is made and is supported by a showing which
leaves the court in doubt or upon which reasonable minds might reach different
conclusions, the doubt should be resolved in favor of the motion.” Sewell, 145 Mont. at
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340, 400 P.2d at 894. In Sewell, we reversed an order refusing to set aside the default
based on the defendant’s positive recollection that he had not been served and his
company records that “bear him out.” Sewell, 145 Mont. at 344, 400 P.2d at 896.
¶12 Here, Fisher-Jones is an inmate, without ready access to evidence “other than her
own assertions” to rebut the prima facie showing of service. In her affidavit, her motion
to set aside the decree, and her motion for relief under M. R. Civ. P. 60(b), Fisher-Jones
vigorously disputed the return of personal service and claimed she had never been served.
On appeal, she has suggested that there is evidence that would “bear [her] out,” namely,
“logs, records and [surveillance]” from the Montana Womens’ Prison that would show
whether or not the sheriff’s deputy effected personal service. Given Fisher-Jones’
assertions, the apparent availability of records from the Womens’ Prison, and the fact that
the result of the decree was to provide Fisher-Jones very little contact with her children
and allocate to her an unclear but potentially significant amount of the parties’ marital
debt1, I would hold that the District Court slightly abused its discretion by not at least
giving Fisher-Jones an opportunity to demonstrate proof, if any she had, to rebut the
return of service. I would remand the case with instructions for the District Court to hold
a hearing on her motion to set aside the decree for lack of personal service.
/S/ BETH BAKER
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The parenting plan adopted by the District Court states “the respondent shall take all debt
[accumulated] during the marriage.” In the court’s Final Decree of Dissolution, however, a
$58,153.73 debt is allocated between the parties; the decree confusingly lists “Wife” but then
“Petitioner” as responsible for $4,407.35, and “Husband” but then “Respondent” as responsible
for $53,746.38. In this case, Fisher-Jones is the Respondent, so the actual allocation is unclear.
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