No. 92-331 IN THE SUPREME COURT OF THE STATE OF MONTANA

MICKEY D. FONK, Petitioner and Appellant,

MAVANEE J. ULSHER, Respondent and Respondent, and J.C.F. and S.J.F., Minor Children, and MONTANA DEPARTMENT OF SOCIAL AND REHABILITATION SERVICES, child Support Enforcement ~ivision, Real Party in Interest.

APPEAL FROM: District Court of the First Judicial District, In and for the County of Lewis and Clark, The Honorable Jeffrey Sherlock,Judge presiding.

COUNSEL OF RECORD: For Appellant: Michael 

### V. Sinclair: Coil & Sinclair, Bozeman, Montana For Respondent: Robert T. Cummins,Attorney at Law, Helena,Montana Peggy Probasco, Legal Counsel, Departmentof Social and Rehabilitation Services, Child Support Enforcement,Butte, MontanaJustice Karla M. Gray delivered the Opinion of the Court. Mickey D. Fonk appealsan orderof the First Judicial District Court, Lewis and Clark County,determining thathehad been served personally with process in an earlier default dissolution action. Because the order is not a final judgment and is not otherwise appealable, we dismiss this appeal without prejudice. On April 2, 1987, the District Court entered a default decree of dissolution dissolving the prior marriage of appellant Mickey Fonk and respondent MavaneeUlsher. Among otherthings, thedecree ordered Fonk to pay $75 per month per child as support for J.C.F. and 

### S.J.F. On June 14, 1991, Fonk filed a Petition to Determine the Nonexistence of the Father and Child Relationships. He requested blood testspursuant to $j40-6-112, MCA, forUlsher, the children, and himself, a declaration that the father/child relationships are void, and an order requiring Ulsher and the Department of Social and Rehabilitation Services to reimburse him for all past child supportpaid. He asserted thathehad never been served personally in the originaldivorceaction,and that Ulsher had committed fraud upon the court by representing that he had fathered the two children. On July 18, 1991, Ulsher filed her response to the paternity action and included a cross-petition for increased child support. She moved for dismissal of Fonkls petition, arguing that the paternity issue was res judicata and that his petition was a collateral attack on the default judgment entered in the 2dissolution action. On December 13, 1991, the District Court issued an order setting a hearing to determinewhether servicewas made on Fonk 

### in thedissolution. In this order, the District Court stated: 

### If service was in fact made upon him [Fonk], then he 

### may not maintain this present action to dispute the paternity of the children. In such case he will be barred by the doctrine of res judicata and/or collateral estoppel from raising the question. the hearing April the District Court restricted testimony to the 

### narrow issue of whether Fonk had been served personally with process in the dissolution action. On June 4, 1992, theDistrict Court filed its order ruling only that Fonkwas sewedpersonally with thepetition and summons in the dissolution proceeding. Fonk appeals from that order. The right of appeal exists only by statute or rule. Stevens

v. Abbott (1986), 220Mont. 61, 62, 712 P.2d 1347, 1348. Rule 1of theMontana Rules ofAppellate Procedure specifies those judgments and orders that may be appealed to this Court. An order determiningthat a partywaspersonally served in a

### prior action is not among those contained in the rule. Nor did theparties obtain certification of the order from the ~istrict Courtpursuant to

### Rule

In this case, the parties1 rights have not been finally adjudicated. Ulsher's claim for increased child supportand Fonkfs claims regardingblood tests, paternity, and reimbursement 

### of past paid child support all 

### remain to be determined by the District Court. While the ~istrict CourttsDecemberorder settingahearingon the question of service 

### of process implies that Ulsher's motion to dismisswill be granted if servicewas made, implication is not sufficient. The District Court's Order Concerning Service of Processdoesnot constitutea final judgment against Fonk; nordoes it decide Ulsher's cross-petition. Unless a judgment is final, this Court is without jurisdiction to hear the appeal and make a determination. In re Marriage of Adams (1979), 183 Mont. 26, 28, 598 P.2d 197, 198;State ex rel. Raw v. City ofHelena (1961), 139 Mont. 343, 350, 363 P.2d 720, 723. We hold that the District Court's order of June 4, 1992, is not appealable. Therefore, we dismiss this appeal without prejudice. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1988 Internal OperatingRules, this decision shall not be cited as precedent and shall be published by its filing asapublic document with the Clerk of the Supreme Court and by a report of its result to Montana Law Week, StateReporter and West Publishing Company.



### C

, Chief Justice