NO. 93-354 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

IN RE THE MARRIAGE OF 

RANAE L. BROERE, 

Petitioner and Respondent, 

and 

ROBERT ALAN BROERE, 

JAN 2 0 1994 

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Respondent and Appellant. CLERK Ctz s!,,pfi:;,n~ C;)~JR-V STMT~ i)~ ir:~@~IA141\ 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Russell K. Fillner, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Mark P. Yeshe, Attorney at Law, Helena, Montana 

For Respondent: 

Jerrold L. Nye, Attorney at Law, Billings, Montana 

Filed: 

Submitted on Briefs: October 21, 1993 

Decided: January 20, 1993 
Justice William E. Hunt, Sr., delivered the opinion of the Court. 

This appeal fromthe Thirteenth Judicial District, Yellowstone 

County, involves a marriage dissolution with property and custody 

issues, and the District Court's denial to set aside an entry of 

default under Rule 55(c), M.R.Civ.P. 

The issue is whether the District Court erred in not setting 

aside the default judgment. 

We reverse. 

On January 19, 1993, respondent Ranae L. Broere filed a 

petition for dissolution of her marriage to appellant Robert Alan 

Broere. The dissolution involved the custody and support of three 

minor children, marital property, a pension, and debts. Robertwas 

served with the petition and a summons on February 8, 1993. 

On February 26, 1993, Robert, acting pro se, signed a response 

to the dissolution petition and "telefaxedl' it to Ranae's attorney. 

Robert also telefaxed an acknowledgement of receipt form with a 

letter asking Ranae's attorney to sign and return the form as soon 

as possible. Robert misunderstood from the summons that he must 

file his response with the District Court since the summons did not 

direct that the response be filed with District Court, but directed 

him to file his answer and serve a copy upon Ranae's attorney. 

Robert believed the telefaxed response to Ranae's attorney was 

sufficient. 

After receipt of Robert's response, Ranae's attorney sent 

Robert a note of issue on March 17, 1993, mistakenly believing 

Robert had filed his response with the District Court. The note of 
issue was captioned with the Broere dissolution heading and said 

that on February 26, 1993, the trial was before the court upon the 

filing of respondent's response. 

On March 19, 1993, Ranaels attorney filed a praecipe for 

default. On March 23, 1993, the District Court entered a decree of 

dissolution by default and ordered the following: (1) joint 

custody of the children, with Ranae as primary residential 

custodian; (2) Robert to pay $397 per month in child support and 

provide health insurance for the children; (3) all property in her 

possession awarded to Ranae; and (4) Ranae awarded one-half of 

Robert's pension. On March 29, 1993, notice of entry of judgment 

was filed and served upon Robert. On April 8, 1993, Robert 

obtained counsel and filed a motion with affidavits to set aside 

the default. The District Court did not rule on the motion within 

45 days, and it was deemed denied. On June 3, 1993, Robert filed 

his notice of appeal. 

Did the District Court err in not setting aside the default 

judgment? 

Robert contends that given his status as a layman and the 

surrounding circumstances the judgment should be set aside. He 

assumed his response had been properly served and filed because the 

note of issue notified him it was filed. Ranae contends that a pro 

se defendant undertakes representation of himself at his own peril, 

and that Robert's failure to follow the procedure requirements as 

provided by the Montana Rules of Civil Procedure is not excusable 

neglect. 
When a trial court has refused to set aside a default the 

standard of review is that no great abuse of discretion need be 

shown to warrant reversal. The policy is to favor trials on the 

merits. Lords v. Newman (1984), 212 Mont. 359, 363, 688 P.2d 290, 

293. Rule 55(c), M.R.Civ.P., for good cause shown, permits a 

default judgment to be set aside under Rule 60(b). Rule 60(b), 

M.R.Civ.P., states that a judgment may be set aside due to mistake, 

inadvertence, surprise, or excusable neglect. Mistake is defined 

as llsome unintentional act, omission, or error arising from 

ignorance, surprise, imposition, or misplaced confidence." Black's 

Law Dictionary 1152 (4th ed. rev. 1975). Defendants prove good 

cause by showing: they proceeded with diligence: their excusable 

neglect; that the judgment will be injurious to them if allowed to 

stand; and they have a meritorious defense to the plaintiff's cause 

of action. Blume v. Metropolitan Life Ins. Co. (1990), 242 Mont. 

465, 467, 791 P.2d 784, 786. 

Robert acted with diligence to set aside the default judgment 

when he immediately retained an attorney to represent him and 

timely filed a motion to set aside the default judgment ten days 

after notice of judgment was mailed to him. He assumed that his 

telefaxed response to Ranae's attorney was sufficient. See Waggoner 

v. Glacier Colony of Hutterites (l953), 127 Mont. 140, 258 P.2d 

1162. In Waqqoner, immediately after receiving the summons and 

complaint, Colony members talked with an associate at plaintiff's 

attorney's office, who said he would relay the message to 

plaintiff's counsel that the wrong defendant was being sued. The 

4 
Colony understood from this conversation that no further action 

would be taken against them, but default was entered. This Court 

set aside the default stating that laymen are often misled and get 

entirely different meanings from conversations than one trained in 

the legal field. Wassoner, 258 P.2d at 1166. As with the 

defendant in Wacrcroner, Robert made a mistake when he assumed that 

his telefaxed response to Ranae's attorney was sufficient when they 

sent him the note of issue. 

In Worstell v. Devine (1959), 135 Mont. 1, 335 P.2d 305, this 

Court found excusable neglect when the appellant's counsel was 

mistaken when he assumed that the papers were served on his client 

on a particular day, and when he did not discover his mistake until 

after default was entered. Robert also assumed his response had 

been properly served and filed because the note of issue told him 

it had been filed. 

The judgment is injurious to Robert who lost physical custody 

of his children, was ordered to pay child support, and lost 

one-half of his pension without having opportunity to litigate the 

issues. This case involves issues of physical custody and 

visitation and this Court has said that lrcustody cases present a 

compelling reason for a hearing on the merits." Duffey v. Duffey 

(1981), 193 Mont. 241, 245, 631 P.2d 697, 700. Robert's proposed 

response and affidavit is sufficient to show a meritorious defense. 

We want to point out that there is a second reason not raised 

or argued by the parties to reverse this case, and that is that 

Ranae's attorney affirmatively, though innocently, misled Robertby 

5 
sending him the note of issue, leading him to believe the case 

would be tried. However, on discovering the fact that Robert had 

not filed his response, Ranae's attorney did nothing to rectify the 

misleading impression which he had left with Robert, but instead, 

took advantage of Robert's misunderstanding by obtaining, without 

notice, a default and a default judgment. This Court disapproves 

of this type of practice. 

The denial of the ~istrict Court to set aside the default 

judgment is reversed. 

We concur: 

/ 
January 20, 1994 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Mark P. Yeshe 

Attorney at Law 

P.O. Box 483 

Helena, MT 59624 

Jerrold L. Nye 

NYE & MEYER, P.C. 

3317 Thud Ave. North 

Billings, MT 59101 

ED SMITH 

CLERK OF THE SUPREME COURT 

BY: 

Depu