No. 86-274 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

IN RE THE MARRIAGE OF 

EMIL E. BAHM, 

Petitioner and Appellant, 

and 

ARDYS J. BAHM, 

Respondent, Cross-Appellant 

and Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable William J. Speare, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Whalen & Whalen; Michael J. Whalen, Billings, Montana 

For Respondent: 

Virginia A. Bryan, Billings, Montana 

Submitted on Briefs: Jan. 30, 1987 

Decided: February 13, 1987 

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

the Court. 

Both parties appeal the April 3, 1986, order of the 

Thirteenth Judicial District Court. Petitioner Emi1 Bahm 

appeals the portion of the order requiring him to sell or 

convey title to property located in North Dakota. Respondent 

Ardys Bahm appeals the denial of attorneys1 fees and finding 

by the court that the property settlement agreement contains 

no provision for maintenance. We affirm the April 3, 1986, 

order of the District Court and dismiss respondent's appeal 

as untimely. 

A decree of dissolution was entered August 11, 1981, 

dissolving the parties1 marriage. The decree incorporated a 

property settlement agreement executed by the parties. 

Ambiguities in the property settlement agreement caused the 

current dispute. The agreement provides that Ardys is to 

receive $175,000 for her interest in the parties1 real and 

personal property. Such sum included $15,000 in cash at the 

time of entry of the decree of dissolution, $10,000 within 

the following year, and any amounts received for the sale of 

the parties1 Morton County, North Dakota property. Upon 

default of the buyer, the property was to be resold as soon 

as possible. The $175,000 was to be paid by February 1, 

1992, with no accrual of interest. 

Paragraph (8) of the agreement provided for $500 monthly 

maintenance payments to Ardys to be credited against the 

$175,000 owed to her. The monthly payments were to terminate 

upon the happening of any of 3 contingencies: 1) Ardys' 

death; 2) Ardys' remarriage; 3) payment of the first $100,000 

owed under the agreement or sale of the North Dakota 

property. 
The buyer defaulted on the contract to purchase the 

North Dakota property and the property was never re-listed 

for sale. Emil terminated the $500 monthly maintenance 

payments to Ardys in February of 1985. Ardys obtained 

payment for March of 1985 by writ of execution. No 

maintenance payments have been made since that time. 

On December 18, 1985, Ardys filed a motion to modify 

visitation and for contempt based upon Emil's refusal to pay 

maintenance. In addition, Ardys requested that the court 

order Emil to list the North Dakota property for sale or to 

quit claim his interest in the property to Ardys. The 

motions were argued before the court and briefed by the 

parties. 

On April 3, 1986, the District Court entered its opinion 

and order denying the motions for contempt and modification 

of visitation, and requiring Emil to list the North Dakota 

property or in the alternative quit claim his interest to 

Ardys with the value of Emil's interest to be credited 

against the balance owed to Ardys. Each party was required 

to pay their own attorneys' fees. 

Emil filed a notice of appeal May 5, 1986. Ardys did 

not file a notice of appeal until June 4, 1986. On the same 

date, the district judge heard oral argument by the parties 

on whether the 30 day time limit for appeal should be 

extended 30 days pursuant to Rule 5, Mont.R.Civ.P., to allow 

Ardys' appeal. By order dated June 10, 1986, the District 

Court granted Ardys' motion for extension of time. Emil has 

filed a motion with this Court to dismiss Ardys' appeal. 

Before reaching the issue raised by Emil on appeal we 

address whether Ardys' appeal is properly before this Court. 

Rule 5, M.R.App.Civ.P. provides tha.t the 30 day time limit 

for appealing from a judgment or an order may be extended by 

the district court for 30 days upon a showing of excusable 

neglect. The motion for extension may be filed before or 
after expiration of the first 30 days. Zell v. Zell (1977) , 

172 Mont. 496, 565 P.2d 311. In the present case, Ardys 

timely moved for an extension of the 30 day limit. However, 

we find the District Court applied an improper standard in 

granting the extension and reverse the District Court order 

permitting Ardys' appeal. 

The June 10, 1986, District Court order reads, "Upon 

Motion of the Respondent, Ardys J. Bahm, and good cause 

appearing therefore, IT IS HEREBY ORDERED that the Respondent 

be allowed to file her Notice of Appeal." The standard to be 

applied is excusable neglect rather than good cause. Rule 5, 

M.R.App.Civ.P. The hearing transcript reveals that Ardys' 

attorney originally determined not to file a notice of appeal 

then later changed her mind. The notice of appeal was not 

filed until the sixtieth day due to counsel's involvement in 

a campaign. 

Neither counsel's busy schedule nor her change of mind 

concerning filing a notice of appeal constitute excusable 

neglect. In McCormick v. McCormick (1975) , 168 Mont. 136, 

541 P.2d 765, we held that appellant's change of mind about 

filing an appeal is not an extraordinary case for which an 

extension of time to file an appeal is allowed under Rule 5. 

It does not matter whether it is counsel or the client who 

experiences the change of mind concerning the appeal. See 

Gann v. Smith (CA 5th, 1971), 443 F.2d 352. 

Excusable neglect is discussed in 9 Moore's Federal 

Practice 9 204.13 [I-31 (2ded. 1985) It is widely held that 

counsel's busy schedule is not a basis for a finding of 

excusable neglect. See e.g. Pimero Schroeder v. Federal 

National Mortgage Association (CA 1st 1978), 574 F.2d 1117. 

We find that the District Court erred in granting an 

extension of time allowing Ardys to file her appeal. We 

dismiss Ardys' appeal and proceed to consider the sole issue 

raised by Emil: 
Whether the District Court improperly affected the title 

to real property located in North Dakota? 

Emil contends that the District Court does not have the 

power to order him to sell the North Dakota property or in 

the alternative quitclaim his interest to Ardys. Emil 

contends that either method contemplates a transfer of real 

property in North Dakota by court order, thus the District 

Court is affecting title to property beyond its jurisdiction. 

We do not agree. 

In Gammon v. Christiana, Inc. (Mont. 1984), 684 P.2d 

1081, 41 St.Rep. 1161, an action was brought in Montana to 

enforce an Oregon divorce decree which awarded Montana 

property to the wife. This Court found that the Oregon court 

had jurisdiction over the parties and was empowered to 

determine the equities between the parties with respect to 

marital property. While the Oregon court did not have 

jurisdiction to directly affect title to Montana property, 

the decree granting an interest to the wife was entitled to 

full faith and credit in the Montana courts. 

In the present case, the District Court ordered Emil to 

sell the North Dakota property or to quitclaim his interest 

to Ardys. The District Court did not directly affect title 

to property beyond its jurisdiction. The dissolution action 

gave the District Court the power to determine the equities 

between the parties including equities with respect to their 

real property. Further, the property settlement agreement 

between the parties, incorporated into the dissolution 

decree, required the North Dakota property to be resold as 

soon as possible upon default of the original buyer. Emil 

failed to abide by this provision and pursuant to Ardys' 

motion, the District Court is enforcing the decree. We find 

the order requiring Emil to sell the North Dakota property or 

to quitclaim his interest to Ardys was within the 

jurisdiction of the District Court. 
The District Court order appealed from by Emil is 

affirmed. 

We concur: