Marriage of Kelly and Camp ( 2020 )

10/20/2020
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 20-0449
DA 20-0449
FILED
IN RE MARRIAGE OF
OCT 2 0 2020
BRIDGET J. KELLY. Bowen Greenw000
Clerk of Suprerne Cour
State of Montana
Petitioner and Appellee,
ORDER
v.
JOSEPH S. CAMP,III,
Respondent and Appellant.
By motion filed September 28, 2020, Appellee Bridget J. Kelly moves this Court
pursuant to M.R. App.P.6(5)(0 and(6)to dismiss the appeal ofAppellee Joseph S. Camp,
III, filed on September 14, 2020, on the asserted ground that the appeal is premature
because the underlying District Court judgment is not a final judgment due to the
outstanding pendency of an attorney fees award. Appellee asserts that the subject District
Court judgment included an attorney fees award in an amount yet to be determined upon
the record of a hearing scheduled for October 14, 2020. Appellant opposes the motion on
the asserted grounds that, although the amount of the included attorney fees award has yet
to be determined, the award is not "necessary" as referenced in M. R. App. P. 4(1)(a)
because the District Court has since vacated the previously scheduled October 14 attorney
fees hearing on the stated ground that filing of Appellant's notice of appeal deprived the
court of"the authority to address the pending dispute regarding attorney fees and costs."
Except under certain circurnstances not presented here, a party may appeal only
from a "final judgment." M. R. App. P. 6(1). A "final judgmenr is a judgment that
"conclusively determines the rights ofthe parties and settles all claims in controversy in an
action or proceeding, including any necessary determination ofthe amount ofcosts and
attorneyfees awarded" therein. M. R. App. P. 4(1)(a)(emphasis added). The premature
filing of a notice of appeal prior to determination of the amount of costs and attorney fees
awarded in an otherwise final judgment does not deprive the District Court of authority to
proceed to that determination. In re Marriage ofMarez & Marshall, 2014 MT 333, ¶ 40,
377 Mont. 304,340 P.3d 520. See also M. R. App. P. 5(a)(ii)("premature filing ofa notice
of appeal" does not deprive court of -jurisdiction to enter the written judgment"). Here,
pursuant to M. R. App. P. 4(1)(a), the subject judgment will not be final until the District
Court determines and cnters judgment on the included award of attorney fees and costs.
Appellant prematurely filed a notice of appeal and the District Court thus erroneously
concluded that it deprived the court ofjurisdiction to determine the amount ofthe included
award of attorney fees and costs.
THEREFORE,
IT IS ORDERED that Appellee's "Motion to Dismiss" this premature appeal,
instituted by notice filed September 14, 2020, is hereby GRANTED.
IT IS FURTHER ORDERED that Appellant's Appeal is DISMISSED WITHOUT
PREJUDICE.
The Clerk is directed to give notice of this Order to all counsel ofrecord.
Dated this 20th day of October, 2020.
Chief Justice