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 

Decided: May 4, 1993 

Filed: & sit,$ 

CLERK OF SUPREllE COURI 

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 Hannahls motion 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: