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, Department of Social 

and Rehabilitation Services, Child Support 

Enforcement, Butte, Montana 
Justice Karla M. Gray delivered the Opinion of the Court. 

Mickey D. Fonk appeals an order of the First Judicial District 

Court, Lewis and Clark County, determining that he had 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 Mavanee Ulsher. Among otherthings, the decree 

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 tests pursuant to $j 40-6-112, MCA, for Ulsher, 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 

support paid. He asserted that he had never been served personally 

in the original divorce action, 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 

2 
dissolution action. On December 13, 1991, the District Court 

issued an order setting a hearing to determine whether service was 

made on Fonk in the dissolution. 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, the District Court filed its order ruling only that Fonk was 

sewed personally with the petition 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), 220 Mont. 61, 62, 712 P.2d 1347, 1348. Rule 1 of 

the Montana Rules of Appellate Procedure specifies those judgments 

and orders that may be appealed to this Court. An order 

determining that a party was personally served in a prior action is 

not among those contained in the rule. Nor did the parties obtain 

certification of the order from the ~istrict Court pursuant to Rule 

In this case, the parties1 rights have not been finally 

adjudicated. Ulsher's claim for increased child support and Fonkfs 

claims regarding blood tests, paternity, and reimbursement of past 

paid child support all remain to be determined by the District 

Court. While the ~istrict Courtts December order setting a hearing 
on the question of service of process implies that Ulsher's motion 

to dismiss will be granted if service was made, implication is not 

sufficient. The District Court's Order Concerning Service of 

Process does not constitute a final judgment against Fonk; nor does 

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 of Helena (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 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. 

C 

, 

Chief Justice