NO. 90-376 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

JERRY R. BECHHOLD, Petitioner and Appellant, 

APR 18 1991 

MARC1 ANN CHACON, Respondent and Respondent. 

CLERK OF SUPREME COURT 

STATE OF 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Mark P. Sullivan, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Jerry R. Bechhold, Pro se 

For Respondent: 

Jon M. Hesse, Livingston, Montana 

Filed: 

Submitted: April 4, 1991 

Decided: April 18, 1991 

Clerk 
Justice Terry N. Trieweiler delivered the Opinion of the Court. 

Jerry R. Bechhold appeals from an order and judgment entered in 

the District Court, Eighteenth Judicial District, Gallatin County, 

dissolving the partiest marriage and granting Marci Chacon Bechhold 

custody of the minor child. We reverse the District Court. 

The issue presented for review is whether the District Court 

properly set aside its earlier order dismissing the marital 

dissolution proceeding before entering the dissolution decree. 

Appellant Jerry Bechhold initiated dissolution of marriage 

proceedings on June 15, 1988. He obtained temporary custody of the 

parties' minor child at that time. A hearing in the dissolution 

matter was held on January 29, 1990. Temporary custody of the minor 

child was transferred to the respondent, Marci Chacon, and all 

other matters pertaining to the dissolution were taken under 

advisement. At the time of the hearing, all parties had resided in 

California in excess of six months. 

On January 31, 1990, Bechhold filed a motion to dismiss the 

dissolution proceeding in Montana. In his supporting brief, he 

stated that California was the proper forum under the Uniform Child 

Custody Act, since the child had resided in California for more 

than six months. Bechhold then attempted to initiate the 

dissolution proceedings in California. His initial attempt was 

unsuccessful. On February 23, 1990, the California court declined 
to exercise jurisdiction while an action was still pending in 

Montana. 

A brief in opposition to the motion to dismiss was filed by 

Chacon on February 12, 1990. Chacon argued that Bechhold had chosen 

the Montana forum, and only now wished to change it after receiving 

an adverse ruling in the custody matter. On March 6, 1990, the 

District Court ordered the case dismissed with prejudice. 

Chacon filed a motion to set aside the order to dismiss on 

March 12, 1990. ~eanwhile, Bechhold informed the California court 

on March 14, 1990, that the action had been dismissed in Montana. 

Both parties attended the hearing in the California court on April 

20, 1990. Chacon appeared with her California counsel. At that 

hearing, the court determined that the parties should share the 

custody of the child. All other dissolution matters were continued 

until June 11, 1990. 

Chacon s Montana counsel served notice on April 14, 1990, that 

the hearing on the motion to set aside the order dismissing with 

prejudice would take place on May 4, 1990. Bechhold did not 

respond, and the telephone conference hearing was rescheduled for 

May 7. Again, Bechhold did not respond, despite numerous attempts 

to contact him by telephone and mail. On May 25, 1990, the District 

Court granted Chaconls motion to set aside the order of March 6, 

1990, dismissing the dissolution proceedings. The court then 

entered Findings of Fact, ~onclusions of Law, Dissolution Decree 
and Judgment. The Judgment awarded sole custody of the child to 

Chacon. This appeal resulted. 

Bechhold maintains that the District Court was without 

jurisdiction to enter its Order and subsequent Findings of Fact, 

Conclusions of Law and Judgment. He states that because the court 

did not act on the March 12, 1990 motion to set aside the order of 

dismissal for 74 days following its filing, it effectively denied 

the motion, pursuant to Rule 60 (c) , M. R. Civ. P. Appellant argues 

that the Order of dismissal with prejudice thereby remained in full 

effect and that jurisdiction was irrevocably lost once the 

California court assumed jurisdiction. 

The basis on which the District Court set aside the March 6, 

1990 Order is Rule 60, M.R.Civ.P, which allows for relief from an 

order. Rule 60(b) states in pertinent part: 

On motion or on such terms as are just, the court may 

relieve a party or his legal representative from a final 

judgment, order, or proceeding for the following reasons: **** 

(3) fraud (whether heretofore denominated intrinsic or 

extrinsic), misrepresentation, or other misconduct of an 

adverse party; ... or (6) any other reason justifying 

relief from the operation of the judgment. 

Chaconts motion was timely. However, Rule 60(c) states: 

Motions provided by subdivision (b) of this rule shall 

be determined within the times provided by Rule 59 in the 

case of motions for new trials and amendment of judgment 

and if the court shall fail to rule on the motion within 

the 45 day period, the motion shall be deemed denied. 
The maximum amount of time the court is allowed to rule on such a 

motion is 45 days from when it is filed. This Court has determined 

that to be a mandatory time limit. Lerum v Logue, 198 Mont 194, 645 

In State Department of Revenue v Frank, 226 Mont 283, 735 P2d 

290 (1987), this Court held that a district court had jurisdiction 

after 48 days had elapsed between the motion for relief from 

judgment and the hearing on the motion. In that case, the Court 

stated: 

It is, however, provided in Rule 60(b) that the rule 

'I.. .does not limit the power of a court to 

entertain an independent action to relieve a 

party from a judgment, order, or proceeding, 

or to grant relief to a defendant not actually 

personally notified as may be required by 

law.. ." 

The time limitation in Rule 60(c) must be read in light 

of the principle set out in Rule 60(b), which provides 

for such an independent action. The residual power of the 

District Court therein preserved is a complete 

reservation of the District Court's independent power. 

Its purpose is to protect equity by "not enforcing a 

judgment obtained against the public con~cience.'~ (Cites 

omitted). The residual power portion of Rule 60 (b) was 

enacted particularly to prevent an injustice. For that 

reason, we hold that Kenneth's motion to set aside 

enforcement of an unserved warrant of distraint was an 

independent action, and thus is not subject to the 45 day 

time limitation of Rule 60(c), M.R.Civ.P. 

This case factually different from Frank. That case dealt 

with a situation where the party was not given notice by being 

personally served. In this case, Chacon asserts she was not served 
with the motion to dismiss. However, Chacongs counsel responded to 

Bechholdgs motion by filing a brief in opposition and did not 

complain that proper service had not been made. The District Court 

made its decision after both parties had briefed the matter. 

Clearly there was notice. The exception in Frank would not, 

therefore, apply in this case. The time limit set out in Rule 60(c) 

would apply. The motion to set aside the earlier order was entered 

on March 12, 1990. However, the Court failed to rule on the motion 

for 73 days following its filing. This Court has stated that upon 

the completion of the 45 day time limit, the motion is considered 

denied and jurisdiction is lost over that issue. In re Marriage of 

Miller, 238 Mont 108, 776 P2d 1218 (1989). In this case, the court 

lost jurisdiction by April 26, 1990, well before the time for the 

first hearing on the motion to set aside. 

We find that the District Court was without jurisdiction to 

set aside the Order of dismissal dated March 6, 1990, and therefore 

was without jurisdiction to enter the Dissolution, Findings of Fact 

and Conclusions of Law of May 25, 1990. For these reasons we 

reverse the judgment entered for Chacon on May 25, 1990, and vacate 

the Findings, Conclusions and Judgment of that date, and reinstate 

the order of dismissal dated March 6, 1990. 
We concur: