Marriage of Clark

NO. 95-318
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
IN RE THE MARRIAGE OF
GORDON A. CLARK,
Petitioner and Respondent,
v.
KIMBERLY CLARK,
Respondent and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable G. Todd Baugh, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Brian Kohn, Billings, Montana
For Respondent:
R. Russell Plath, Halverson, Sheehy & Plath,
Billings, Montana
Submitted on Briefs: October 26, 1995
Decided: November 21, 1995
Justice William E. Hunt, Sr., delivered the Opinion of the Court.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1995 Internal Operating Rules, the following decision shall not be
cited as precedent and shall be published by its filing as a public
document with the Clerk of this Court and by a report of its result
to State Reporter Publishing Company and West Publishing Company.
Respondent Gordon A. Clark filed for divorce from the
appellant Kimberly Clark. Although served, appellant did not
appear in the divorce action and the Thirteenth Judicial District
Court, Yellowstone County, duly entered a default against her.
Appellant later moved the District Court to have the default set
aside and reopen the dissolution proceedings. The District Court
denied her motion and appellant appeals.
We affirm.
Appellant and respondent were married in December, 1991 and
resided near Acton, Montana. In June 1992, respondent was removed
to the federal prison in Leavenworth, Kansas, to begin serving a
sentence for federal drug charges. At all times pertinent to this
appeal, respondent remained incarcerated at Leavenworth, and in
fact he is still in prison today. In September 1993, respondent
filed for divorce, and appellant was properly served with notice of
the divorce proceedings. Appellant did not appear in the
proceedings and respondent received a judgment by default in
December 1993.
In July 1994, appellant moved the District Court to set aside
the default. Her motion was supported by an affidavit which
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alleged that respondent threatened to have her hurt or killed if
she contested the divorce, and that she had not entered an
appearance because she was afraid to do so. For his part,
appellant accused respondent of pawning some of his personal
belongings, "trashing" his home, and continuing to write checks on
their checking accounts after she had drained them of funds,
resulting in numerous bad check charges against her.
The parties stipulated that the matter was submitted on the
briefs, motions, and affidavits, without an evidentiary hearing.
On April 18, 1995, the District Court held that neither party came
to court with "clean hands," characterizing their respective
actions as "nefarious." The court therefore determined to leave
the parties as it found them and denied appellant's motion to set
aside the default.
The sole issue on appeal is whether the district court abused
its discretion by refusing to set aside the default. Appellant
alleges that the District Court misapplied the "clean hands"
doctrine in this case, and that this misapplication was erroneous.
We agree, but affirm on other grounds.
The doctrine of clean hands means:
equity will not grant relief to a party, who, as actor,
seeks to set judicial machinery in motion and obtain some
remedy, if such party in prior conduct has violated
conscience or good faith or other equitable principle.
One seeking equitable relief cannot take advantage of
one's own wrong.
Black's Law Dictionary 250 (6th ed. 1990), citations omitted.
I'[I]~ is a long-established maxim of jurisprudence that parties
must not expect relief in equity, unless they come into court with
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clean hands." In re Marriage of Burner (19911, 246 Mont. 394, 397,
803 P.2d 1099, 1100.
Yet a court cannot expect the parties before it to have led
blameless lives. It cannot note every wrong ever done and hold it
against them, thereby "repelling all sinners from a court of
equity." Hoopes v. Hoopes (Idaho 19931, 861 P.2d 88, 92. The
doctrine therefore dictates the parties must have clean hands only
regarding the controversy or issue then before the court. It
prevents the parties from profiting from their own wrongs.
In this case, neither party has been a model of decorous
behavior. Each accuses the other of myriad wrongs, both have
prison records, and one is currently incarcerated. But unfounded
accusations alone cannot taint a party with unclean hands, and none
of the documented wrongs perpetrated by either party can be traced
back to the divorce. In seeking to set aside the default,
appellant is not attempting to profit from her past bad actions.
In resisting her motion, respondent is not trying to capitalize on
his own wrongs. As far as the divorce proceeding is concerned, the
hands of both the parties are clean.
Nevertheless, the District Court did not err in refusing to
set aside the default. Appellant's motion, affidavit, and brief do
not contain sufficient evidence to justify such a result.
We will reverse a trial court's refusal to set aside a default
judgment if we find even a slight abuse of discretion. But the
party seeking to set aside the default bears the burden of proving
such a result is warranted. Falcon v. Faulkner (Mont. 1995), 903
P.2d 197, 200, 52 St.Rep. 1011, 1013.
Rule 60(b), M.R.Civ.P., lists the circumstances under which a
default may be set aside:
On motion and upon such terms as are just, the court may
relieve a party or a party's legal representative from a
final judgment, order, or proceeding for the following
reasons :
(1) mistake, inadvertence, surprise, or excusable
neglect;
(2) newly discovered evidence . . .
(3) fraud . misrepresentation or other misconduct of
an adverse party;
(4) the judgment is void;
(5) the judgment has been satisfied . . . or
(6) any other reason justifying relief.
In this case, appellant's motion relies on 60(b) (6) because she
asserts another reason exists to justify setting aside the default.
However, relief is warranted under subsection (6) of Rule 60(b),
M.R.Civ.P., in extraordinary situations only, such as lack of
subject-matter jurisdiction, unavoidable lack of counsel, or
potential judicial bias. Falcon, 903 P.2d at 201, citations
omitted.
Appellant claims she did not appear in the divorce action
because she was threatened by respondent with physical injury. She
asked the district court to set aside the default on the grounds of
coercion and duress. This Court will grant that a clear showing of
believable, coercive threats which intend to and succeed in
preventing a party from taking part in a controversy may indeed
qualify as an "extraordinary situation" justifying relief from a
default.
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In this case, however, the parties stipulated that the motion
was submitted on the briefs and affidavits, and that no evidentiary
hearing was necessary. Therefore, appellant offered no evidence
concerning the alleged "coercion and duress" other than her own
allegation that threats were made. She did not specify when the
threats were made or what was specifically threatened. She offered
no corroborating testimony or affidavits from others who knew of
the threats or saw their effect on her. Appellant's allegation
alone, without more, is insufficient to create an "extraordinary
situation" which would justify setting aside the default, and the
District Court did not abuse its discretion in refusing to do so.
Affirmed.
Justice
We Concur:
November 21. 1995
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
Brian Kohn
Attorney At Law
2501 Fourth Avenue North
Billings MT 59101
R. Russell Plath
Halverson, Sheehy & Plath, P.C.
Box 1817
Billings MT 59103-1817
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
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