?To. 84-340 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

IN RE THE MARRIAGE OF 

LOIS bWRIE KRAUT, 

Petitioner and Appellant, 

and 

MAURICE RAYMOND KRAUT, 

Respondent and Respondent. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Mark Sullivan, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Harrison, Yeshe & Thweatt; Harold H. Harrison, 

Helena, Montana 

For Respondent: 

Smith Law Firm; Robert J. Sewell, Helena, Montana 

Submitted on Briefs: Jan. 18, 1985 

Decided: March 7, 1985 

- 

Clerk 
Mr. Justice Frank B. Morrison, Jr. , delivered the opinion of 

the Court. 

Summary judgment was entered January 26, 1981, in the 

First Judicial District Court, County of Lewis and Clark, 

dissolving the marriage of Lois Marie Kraut (wife) and Maurice Raymond Kraut (husband). On April 5, 1984, wife filed a 

motion to vacate that judgment. Wife's motion was denied 

June 13, 1984. She appeals. 

Wife filed a petition for dissolution of marriage on 

November 3, 1978. Husband filed a response and 

counter-petition on November 22, 1978. Each party alleged in 

its verified petition that the marriage was irretrievably 

broken in that there is serious marital discord which adversely affects the attitude of one or both of the parties 

toward the marriage. 

The hearing on the petition for dissolution was set for 

January 21, 1981. Counsel for the respective parties appeared. Neither of the parties personally appeared. Husband's counsel moved for summary judgment, based on the 

pleadings, on the issue of dissolution. Wife's counsel did 

not object. Subsequent to the hearing, husband's counsel 

filed a written motion for summary judgment. The motion was 

granted on January 26, 1981. The issues of maintenance, 

custody, support, attorneys' fees and costs were reserved and 

remain undecided today. 

On April 5, 1984, wife moved to have the January 1981 

judgment declared void and vacated, apparently pursuant to 

Rule 60 (b) (4) , M.R.Civ. P. Specifically, wife alleged that 

because the first trial judge had not held a hearing and. 

received evidence on the issue of the irretrievable breakdown 

of the marriage, he lacked jurisdiction to dissolve the 

marriage. A judgment entered without jurisdiction is void. 
Shields v. Pirkle Refrigerated Freightlines, Inc. (1979), 181 

Mont. 37, 591 P.2d 1120. 

The present trial judge agreed with wife that an evidentiary hearing should have been held on the issue of whether 

or not the marriage was irretrievably broken. He further 

held that failure to conduct such a hearing resulted in a 

premature judgment. Since premature judgments are voidable 

rather than void, State ex rel. Marlenee v. District Court 

(1979), 181 Mont. 59, 592 P.2d 153, and wife had waited three 

years before contesting the dissolution, wife's motion to 

vacate was denied. We affirm the decision of the District 

Court. 

The Uniform Narriage and Divorce Act (UMDA) was adopted 

in Montana in 1975. One of its primary purposes is to a.bolish the traditional, fault-finding grounds for divorce. The 

UMDA recognizes that it is not necessary to place blame on a 

particular party before dissolving a marriage. Rather, the 

UMDA recognizes that sometimes marriages fail for no specific 

reason and that when a marriage becomes "irretrievably broken," it should be dissolved at the request of one or both 

of the parties to it. 

However, the parties to a marriage cannot, under the 

UMDA, just tell a judge their marriage is irretrievably 

broken and automatically he granted a dissolution. "[Section 

305 of the UMDA] makes the determination of whether the 

marriage is irretrievably broken, in a11 cases, a matter for 

determination by the court, ' after hearing, ' which means 

'upon evidence.' . . . [Tlhe determination of breakdown 

should be a judicial function rather than a conclusive presumption arising from the parties' testimony or from the 

petition." Commissioners' Note to S305, UMDA. 
A marriage is found to be irretrievably broken if the 

parties have lived separately and apart for at least 180 days 

or if "there is serious marital discord which adversely 

affects the attitude of one or both of the parties towards 

the marriage." Section 40-4-104 (1) (b) (i) and (ii) , MCA 

(Section 302 (a) (2) (i) and (ii) , UJIDA) . Evidence supporting 

either of these determinations must be presented at a hearing 

and the court must thereafter make a finding whether or not 

the marriage is irretrievably broken. Section 40-4-107, MCA 

!Section 305, UMDA). 

Wife alleges that since the first trial judge failed to 

conduct a hearing and take evidence on the issue of whether 

or not the marriage was irretrievably broken, he lacked 

jurisdiction to dissolve the marriage. We disagree. The 

trial court had jurisdiction over this dissolution because 

petitioner (wife) had been domiciled in the state for at 

least ninety (90) days prior to filing her petition for 

dissolution ($40-4-104 (1) (a), MCA) , and because husband 

appeared and filed his own counter-petition, (Rule 4B (2) , 

Further, $40-4-105, MCA, states in relevant part: 

"(1) The verified petition in a proceeding for 

dissolution of marriage or legal separation shall 

allege that the marriage is irretrievably broken 

and shall set forth: 

"(c) that the jurisdictional requirements of 

40-4-104 exist and that the marriage is irretrievably broken . ..." (emphasis supplied) 

Clearly, the jurisdictional requirements are considered to be 

separate and distinct from the allegation that the marriage 

is irretrievably broken. 

Failure to conduct a hearing and accept evidence on the 

issue of whether or not a marriage is irretrievably broken is 
a proced.ura1 rather than a jurisdictional defect. Since no 

such hearing was held and no evidence taken, the judgment 

dissolving the marriage was premature. Marlenee, 181 Mont. 

at 64--65, 592 P.2d at 156. Premature judgments are not void. 

Interstate Counseling Service v. Emeline (1964), 144 Mont. 

409, 396 P.2d 727; Sowerwine v. Sowerwine (1965), 145 Mont. 

81, 399 P.2d 233. Therefore, they can not be vacated pursuant to Rule 60(b), M.R.Civ.P. The June 13, 1984, order of 

the District Court denying petitioner's motion to vacate is 

affirmed. 

Premature final judgments are subject to review on 

appeal. The premature summary judgment in this case is not 

yet ripe for appeal because issues collateral to the dissolution remain undecided. Marlenee, 181 Mont. at 62-63, 592 

P.2d at 154-155. Rule I, M.R.Civ.kpp.P. The on1.v method by 

which the premature judgment itself can be reviewed by this 

Court at this point is with a Rule 54 (b) , M.R.Civ.P. 

certification.