Marriage of Hannah

No. 92-344
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
IN RE THE MARRIAGE OF
ROBERT LEROY HANNAH,
Petitioner and Respondent,
and
INGEBORG JEAN HANNAH,
Respondent and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas M. McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Antonia P. Marra, Bell and Marra,
Great Falls, Montana
For Respondent:
James D. Elshoff, Attorney at Law
Great Falls, Montana
Submitted on Briefs: January 21, 1993
Filed: & sit,$
CLERK OF SUPREllE COURI
Decided: May 4, 1993
STATE OF MONTANA
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Appellant Ingeborg Jean Hannah appeals from the Findings of
Fact and Conclusions of Law, Judgment, and Decree of the Eighth
Judicial District Court, Cascade County, granting respondent Robert
Leroy Hannahlsmotion to modify the parties' decree of dissolution.
We reverse and vacate the order of the District Court.
Ingeborg raises three issues for this Courtls consideration.
We find the following issue to be dispositive:
Did the Montana District Court have jurisdiction to modify the
parties1 January 27, 1988, decree of dissolution?
Robert Leroy Hannah and Ingeborg Jean Hannah were married in
1962. Two children were born into the marriage. Ingeborg
instituted an action for legal separation in Sumter, South
Carolina. In 1984, the parties entered into a legal separation
agreement which determined the distribution of property, custody of
the children, maintenance, and child support. The agreement was
approved by the Family Court of Sumter County. Robert moved to
Great Falls, Montana, and initiated dissolution proceedings. On
January 27, 1988, the Montana District Court entered a decree of
dissolution which incorporated the previous separation agreement.
On September 24, 1991, Ingeborg began contempt proceedings
against Robert in South Carolina for failure to pay maintenance and
child support pursuant to the original separation agreement and
dissolution decree. Robert was served, but did not answer, and was
found in contempt.
On November 27, 1991, Robert filed a motion in the Montana
District Court asking for modification, revocation, or termination
of the divorce decree. Ingeborgls South Carolina counsel was
served with the motion and an order to show cause. Ingeborg did
not appear before the District Court and was found in default.
On May 12, 1992, the Montana District Court entered its
judgment modifying the dissolution decree by revoking child support
payments, finding that Robert did not owe any maintenance to
Ingeborg through the Spousal Survivor Benefit Program, and found
that Ingeborg was now the sole owner of the parties1 home.
Ingeborg appeals the decision of the District Court.
Did the Montana District Court have jurisdiction to modify the
parties' January 27, 1988, decree of dissolution?
Ingeborg contends that the Montana District Court's order
modifying the decree is void because she was not personally served.
Rule 5(a), M.R.Civ.P., states that:
No service need be made on parties in default for failure
to appear except that pleadings asserting new or
additional claims for relief against them shall be served
upon them in the manner provided for service of summons
in Rule 4.
Rule 4D, M.R.Civ.P., requires that service be made by personal
service by a nonparty over the age of 18, or that the defendant
acknowledge service.
Robert's motion to modify the original decree constituted a
pleading asserting new claims of relief. Robert requested that the
court "modify, revise or abolish the original separation agreement
and order" and requested that the court redraft the agreement to
contain more equitable provisions relating to support, alimony,
maintenance, and division of property. The effect of Robert's
motion is that he was asking for a new trial and seeking new and
additional relief. Robert was required to comply with the
provisions of Rule 4D.
Robert counters that service of Ingeborg's attorney was
sufficient under Rule 5 (b), M.R.Civ.P. In order for an attorney to
accept service, the attorney must be "of record," which means that
the attorney's name should appear somewhere in the permanent
records or files of the case or on the appearance docket. In re
Marriage of Hand (1957), 131 Mont. 571, 577, 312 P.2d 990, 994.
Although Ingeborg's attorney's name appears on documents in the
South Carolina action, these same documents were filed in the
Montana District Court subsequent to the notice of appeal. This
was insufficient to allow the attorney to receive service for
Ingeborg.
We hold that the District Court did not have jurisdiction
because there was a lack of personal service and that the order
granting Robert's motion be reversed and vacated.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to Montana Law Week, State Reporter and West Publishing Company.
We concur: