NO. 91-200 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

IN RE THE MARRIAGE OF 

GAVIN DUANE CASTOR, 

Petitioner and Appellant, 

and 

SHIRLEY MAE CASTOR, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Joel G. Roth, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

James D. Elshoff, Attorney at Law, Great Falls, 

Montana 

For Respondent: 

Marcia Birkenbuel, Attorney at Law, Great Falls, 

Montana 

Filed: 

Submitted on Briefs: June 13, 1991 

Decided: August 29, 1991 

I " 

Clerk 
Justice John Conway Harrison delivered the Opinion of the Court. 

Gavin Castor appeals from a February 20, 1990, order of the 

District Court of the Eighth Judicial District, Cascade County, 

Montana, denying his motion for modification of spousal maintenance 

payments and ordering him to pay Shirley Castor $6,066 in pastdue maintenance payments, $4,000 representing Mrs. Castor's 

remaining share of his civil service retirement fund, $300 per 

month spousal support, and $250 in attorney's fees. We affirm. 

We frame the issues as follows: 

1. Should the District Court have set aside the February 20, 

1991, order under Rule 60(b), M.R.Civ.P. because of mistake, 

inadvertence, excusable neglect, or any other reason justifying 

relief? 

2. Does a State District Court have the authority in a 

dissolution action to order the United States Office of Personnel 

Management to pay directly to a former spouse a share of a civil 

servant's monthly disability retirement annuity payments? 

3. Did the District Court abuse its discretion by ordering 

Mrs. Castor to deliver all personal property in her possession 

awarded to Mr. Castor by the dissolution decree, after she had 

received in full her share of retirement benefits, past-due 

maintenance payments, and attorney's fees? 

4. Did the District Court abuse its discretion by awarding 

$250 in attorney's fees to Mrs. Castor? 

After 28 years of marriage, on April 1, 1988, Gavin D. Castor 

2 
and Shirley M. Castor were granted a dissolution of marriage. Mr. 

Castor was required to pay $675 per month spousal maintenance until 

the couple's home in Utah was sold. Maintenance would then be 

reduced to $300 per month until Mrs. Castor became eligible for 

Social Security retirement benefits. Mr. Castor was ordered to pay 

$4,000 to Mrs. Castor as her share of his civil service retirement 

pension. The parties were allowed to keep certain personal 

property then in their possession, and Mrs. Castor was ordered to 

turn over certain personal property to Mr. Castor. 

On October 15, 1990, Mr. Castor moved to modify the 

dissolution decree by reducing the amount of spousal maintenance 

payments and moved to require Mrs. Castor to turn over titles to 

vehicles and other personal property awarded to Mr. Castor, 

On December 6, 1990, Mrs. Castor requested a continuance of 

the hearing on the motion for modification of the dissolution 

decree because notice of the hearing scheduled for that date was 

not received until November 30, 1990. The motion was granted, and 

the hearing was reset for January 23, 1991. 

On January 22, 1991, the District Court ordered the January 

23 date for the hearing to be vacated because of a conflict in the 

court's calendar and rescheduledthe hearing for February 14, 1991. 

Both parties received written notice of the continuance. Although 

Mr. Castor's counsel received the notice, he failed to see the new 

date of the hearing. As a consequence, neither Mr. Castor nor his 

attorney appeared at the hearing on February 14. After waiting for 

forty minutes, the District Court heard testimony from Mrs. Castor 

3 
and entered judgment in her favor. 

In its February 20, 1991 order, the District Court required 

the United States Office of Personnel Management to continue to pay 

Mrs. Castor $582 per month from Mr. Castor's monthly retirement 

benefits until March 1991. At that time, the Office of Personnel 

Management was ordered to withhold $500 per month for Mrs. Castor. 

Of the $500 withheld, $300 was for spousal maintenance and $200 was 

to be applied to the balance of Mrs. Castor's $4,000 share of 

retirement benefits, $6,066 in past-due spousal maintenance, and 

$250 in attorney's fees. In approximately three years when these 

obligations to Mrs. Castor had been paid in full, the Office of 

Personnel Management was ordered to withhold $300 per month for 

spousal maintenance. 

In addition, after Mrs. Castor's share of retirement benefits, 

past-due maintenance, and attorney's fees were paid in full, Mrs. 

Castor was required to deliver to Mr. Castor the personal property 

and title to vehicles awarded to him by the dissolution decree. 

On March 13, 1991, the District Court denied Mr. Castor's 

motion to set aside the order modifying the dissolution decree. 

From these judgments, Mr. Castor appeals. 

Should the District Court have set aside the February 20, 

1991, order under Rule 60(b), M.R.Civ.P. for mistake, inadvertence, 

excusable neglect, or other reason justifying relief? 

Sections (1) and (6) of Rule 60(b), M.R.Civ.P. provide that 

the court may relieve a party from a final judgment for "mistake, 

4 
inadvertence, surprise, or excusable neglect" or "any other reason 

justifying relief from the operation of the judgment." 

Mr. Castor's counsel argues that he is "only human" and that 

his mistake in failing to notice the rescheduled date of the 

hearing on Mr. Castor's motion should not have been imputed to his 

client. Mr. Castor's counsel maintains that medical evidence of 

his client's disability would have changed the outcome of the 

court's ruling. 

If the district court exercises its discretion in appraising 

or weighing facts of a particular case, on review this Court 

determines whether the district court, in varying degrees, has 

abused or misused its discretion. See Steer, Inc. v. Department 

of Revenue (Mont. 1990), 803 P.2d 601, 603-04, 47 St.Rep. 2199, 

2200. If the district court's decision does not involve the public 

policy that cases should be tried and decided on their merits, then 

the scope of review is the standard abuse of discretion test. 

When the district court sets aside a default judgment pursuant 

to Rule 60(b), allowing the case to be tried on its merits, a 

showing of great abuse of discretion is necessary to reverse the 

district court's decision. Graham v. Mack (1985), 216 Mont. 165, 

172, 699 P.2d 590, 594. But when the district court has refused 

to set aside a default judgment, "no great abuse of discretion need 

be shown to warrant reversal." Lords v. Newman (1984), 212 Mont. 

359, 364, 688 P.2d 290, 293. 

Generally, "mistake, I' "inadvertence, 'I and "excusable neglect" 

5 
require some justification for an error beyond mere carelessness 

or ignorance of the law on the part of the litigant or his 

attorney. Lomas and Nettleton Co, v. Wiseley (7th Cir. 1989), 884 

F.2d 965, 967. Mr. Castor's counsel has not offered an explanation 

other than his failure to note the rescheduled date of the hearing. 

Such a mistake is not enough to require setting aside a judgment 

under Rule 60(b), M.R.Civ.P. See Watson v. Fultz (1989), 239 Mont. 

364, 369, 782 P.2d 361, 364 (no relief from judgment when attorney 

failed to notice hearing date in opponent's motion to amend 

findings): Griffin v. Scott (19851, 218 Mont. 410, 710 P.2d 1337 

(no relief from judgment when attorney failed to read mail for five 

weeks because of work accumulated during his absence). 

The general rule is that neglect of an attorney is 

attributable to the client. Mvers, 235 Mont. at 236, 766 P.2d at 

866. Mr. Castor's counsel relies on Lords v. Newman (1984), 212 

Mont. 359, 688 P.2d 290, in which we held that attorney neglect can 

be excusable on the part of the client upon the proper showing. 

The attorney in Lords, after making a general court appearance, 

"totally abandoned his clients and disappeared from sight." Lords, 

212 Mont. at 367, 688 P.2d at 295. 

In Paxson v. Rice (1985), 217 Mont. 521, 706 P.2d 123, we 

distinguished LordS because, although the attorney in Paxson failed 

to act in response to numerous requests by opposing counsel, he had 

not abandoned his client and left the state. We held that the 

attorney's procrastination in filing answers and other documents 

was "a type of neglect which is properly attributable to a client, 

6 
and which we distinguish from the abandonment in Lords.Ir Paxson, 

217 Mont. at 525, 706 P.2d at 126. Similarly, the neglect in this 

case is properly attributable to the client. 

In addition, the judgment of a district court can be set aside 

for "any other reason justifying relief from the operation of the 

judgment." Rule 60(b) (6), M.R.Civ.P. Generally, relief is 

afforded under subsection (6) of Rule 60(b) in extraordinary 

situations when circumstances go beyond those covered by the first 

five subsections or when a party in whose favor judgment was 

entered has acted improperly. Fuller v. Quire (6th Cir. 1990), 

916 F.2d 358, 360; In re Marriage of Tesch (1982), 199 Mont. 240, 

245, 648 P.2d 293, 296. We hold that Mr. Castor has not shown that 

the District Court abused its discretion in refusing to set aside 

the order of February 20, 1991 under Rule 60(b), M.R.Civ.P. 

Does a State District Court have the authority in a 

dissolution action to order the United States Office of Personnel 

Management to pay directly to a former spouse a share of a civil 

servant's monthly disability retirement annuities? 

Mr. Castor claims that under § 25-13-608, MCA, his retirement 

benefits, as "disability benefits," are exempt from execution; 

therefore, the District Court did not have jurisdiction to order 

the United States Office of Personnel Management to pay a share of 

his disability retirement benefits directly to Mrs. Castor. Mrs. 

Castor counters that according to an Arizona case, Villasenor v. 

Villasenor (Ariz. App. 1982), 657 P.2d 889, the civil service 

7 
retirement annuities Mr. Castor receives do not constitute 

"disability benefits. 'I 

The issue of apportionment of civil service pensions between 

civil service "retirement" benefits under 5 U.S.C. 5 8336 or 5 8338 

and civil service "disability" benefits under 5 U.S.C. 5 8337 has 

been addressed in cases relating to division of property between 

spouses in community property states. See Levy v. Office of 

Personnel Management (Fed. Cir. 1990), 902 F.2d 1550; Villasenor 

v. Villasenor (Ariz. App. 1982), 657 P.2d 889. Although Mr. Castor 

asserts that these cases do not apply because Montana is not a 

community property state, the cases are instructive regarding 

apportionment of retirement and disability benefits as part of 

disability retirement annuities. Under 5 25-13-608, MCA, although 

veterans' and social security benefits are subject to execution if 

they are levied for child support or spousal maintenance, 

"disability or illness benefits" are exempt. Section 25-13- 

608(1) (d), MCA. If the monthly benefits Mr. Castor is currently 

receiving qualify as "disability" benefits, such payments are 

exempt from execution. 

The California Supreme Court addressed apportionment of 

military retirement and disability pay in In re Marriage of 

Sternquist (Cal. 1978), 582 P.2d 96. The husband became disabled, 

but remained in military service for twenty-six years. His regular 

'Tlongevitylt retirement annuity consisted of 65 per cent of his base 

pay: his "disability1r retirement annuity was 75 per cent of his 

base pay. Consequently, the husband elected to receive disability 

8 
retirement. The court recognized that the husband's disability pay 

not only compensated him for loss of earnings because of compelled 

early retirement and personal suffering, but "also serves the 

objective of providing support for the serviceman and his spouse 

after he leaves the service." Sternquist, 582 P.2d at 101. The 

court awarded half of the annuity which was construed as the 

"retirement" component of the husband's retirement disability 

annuity to the wife and ruled that the "disability" component was 

1 the husband's separate property. 

In Levy v. Office of Personnel Management (Fed. Cir. 1990), 

902 F.2d 1550, the court applied the principles set forth in 

Sterncluist to civil service pensions. The court recognized that 

retirement pay based on disability has two components: (1) 

compensation to the civil servant for loss of earning power and 

personal suffering: and (2) retirement support. m, 902 F.2d at 

1553. Accordingly, the rule for apportionment of retirement 

benefits is that the amount the civil servant receives each month 

as disability over and above what would have been received as 

longevity retirement benefits is the civil servant's separate 

property; the remainder is divisible community property. a. 

The formula applicable to civil service retirement benefits 

was detailed in Villasenor. A civil service employee can receive 

retirement and disability benefits under Chapter 83, 5 U.S.C. §§ 

In Montana disability benefits may be included in the 

marital estate. In re Marriage of Cooper (1990), 243 Mont. 175, 

179, 793 P.2d 810, 812. 

9 
8301-8351 (1986), of the Civil Service Code. Villasenor, 657 P.2d 

at 891. A civil servant can qualify for Chapter 83 benefits in 

several ways. When a civil service employee meets the criteria for 

age and length of service, he or she is entitled to "immediate 

retirement" benefits. 5 U.S.C. 5 8336. One who is separated after 

completing at least five years of civil service also qualifies for 

an annuity, but payments do not begin until the employee is 62 

years old, referred to as "deferred retirement." 5 U.S.C. 5 8338. 

Finally, an employee with at least five years of civil service who 

becomes disabled is eligible for ;;disability retirement," with 

benefits payable immediately. 5 U.S.C. 5 8337. Mr. Castor is 

receiving the third type of benefits, "disability retirement," 

under 5 U.S.C. 5 8337. 

Annuities for immediate, deferred, and disability retirement 

are all paid from the same fund, consisting primarily of 

contributions in the form of deductions from employees' pay. The 

annuity amounts for all three forms of retirement are calculated 

by use of the same basic formula, based upon the employee's average 

annual pay for the three highest-earning years and years of 

service. 5 U.S.C. 5 8339; Villasenor, 657 P.2d at 891. Disability 

retirement is earned during years of service just as any other 

retirement pension, and disability is but one of several conditions 

causing rights in the plan to vest. Villasenor, 657 P.2d at 892. 

Depending on how many years of service the civil servant has, 

disability retirement can have both a "retirement" component and 

a "disability11 component. The lldisability'l component becomes 

10 
proportionately smaller as the years of service increase and 

"disappears altogether for those who 'fall through the cracks' by, 

for example, having served more than 21.9 years but being too young 

to take immediate retirement, or being over 60 years but having too 

few years of service to take immediate retirement." - Id. Mr. 

Castor, age 58 with 28 years of civil service employment, is one 

for whom the t*disabilityts component disappears. 

From the analysis presented in Villasenor, we conclude that 

Mr. Castor's monthly annuity is accurately characterized as 

"retirement" benefits, rather than "disability" benefits. Hence, 

the District Court is not precluded by 5 25-13-608, MCA, from 

ordering the United States Office of Personnel Management to pay 

Mrs. Castor a share of Mr. Castor's monthly disability retirement 

annuity. We note that 5 U.S.C. 5 R345(j)(l) allows civil service 

retirement benefits to be paid directly to a former spouse as 

provided by a court decree of dissolution. We hold that the 

District Court did not err in ordering the United States Office of 

Personnel Management to pay directly to Mrs. Castor a share of Mr. 

Castor's monthly disability retirement annuity. 

I11 

Did the District Court abuse .its discretion by ordering Mrs. 

Castor to deliver all personal property in her possession awarded 

to Mr. Castor by the dissolution decree, after she had received in 

full her share of retirement benefits, past-due maintenance 

payments, and attorney's fees? 

Mr. Castor alleges that the District Court should have ordered 

11 
Mrs. Castor to turn over personal property awarded to him by the 

dissolution decree because no Montana statute allows the court to 

order the items to be held until his obligations are paid. 

Section 40-4-209, MCA, allows the court to order a person 

obligated to pay maintenance who is delinquent in an amount equal 

to the total of six months of support payments to "post bond, give 

a mortgage, or provide security or guaranty for so long as there 

is a support delinquency.'' Section 40-4-209(2), MCA. 

Mr. Castor's support obligation for six months was $4,040; the 

court found that he owed $6,066 in past-due maintenance payments. 

Allowing Mrs. Castor to keep personal property awarded to Mr. 

Castor in the dissolution decree until support obligations have 

been paid can serve as "security or other guaranty" as provided for 

by g 40-4-209, MCA. We hold that the District Court stayed within 

the guidelines of 5 40-4-209, MCA, and did not abuse its discretion 

in ordering Mrs. Castor to deliver personal property belonging to 

Mr. Castor after the delinquent support obligation had been paid. 

IV 

Did the District Court abuse its discretion by awarding $250 

in attorney's fees to Mrs. Castor? 

Mr. Castor contends that the District Court abused its 

discretion by awarding attorney's fees without an evidentiary 

hearing. 

The court may award attorney's fees in dissolution cases: 

The court from time to time, after considering the 

financial resources of both parties, may order a party 

to pay a reasonable amount for the cost to the other 
party of maintaining or defending any proceeding under 

chapters 1 and 4 of this title and for attorney's fees .... 

Section 40-4-110, MCA. Mr. Castor asserts that the District Court 

did not properly consider the "financial resources of both 

parties. 

Since the statute is permissive, the appropriate standard of 

review is whether the court abused its discretion. In re Marriage 

of Sullivan (1990), 243 Mont. 292, 299-300, 794 P.2d 687, 691-692. 

We have previously stated that because an award of $400 in 

attorney's fees approaches & minimis, were we to reverse, the 

costs on remand could easily exceed the amount originally awarded. 

We thus upheld the court's award of attorney's fees. In re 

Marriage of Chapin (1982), 202 Mont. 153, 156, 655 P.2d 991, 992. 

The same principle applies in this case. We hold that the District 

Court did not abuse its discretion by awarding $250 in attorney's 

fees to Mrs. Castor. 

Affirmed. 

We concur: 

Justices 

13 
Justice Fred J. Weber dissents as follows: 

On October 15, 1990, Mr. Castor moved to modify the 

dissolution decree. The petition was set for hearing on December 

6, 1990. On the date of that hearing, Mrs. Castor requested a 

continuance of the hearing because notice of hearing was not 

received until November 30, 1990. The motion was granted and the 

hearing was reset for January 23, 1991. On January 22, 1991, the 

District Court, on its own order, vacated the hearing of January 

23, 1991, and rescheduled the hearing for February 14, 1991. A5 

pointed out in the majority opinion, both parties received written 

notice of the continuance. The counsel for Mr. Castor who had 

initiated the proceeding failed to note the new date of the 

hearing. As a result neither Mr. Castor nor his attorney were 

present at the hearing: and after waiting 40 minutes, testimony was 

taken from Mrs. Castor, and judgment was entered in her favor. 

Counsel for Mr. Castor admits that it was his own failure to 

note the February 14 hearing which caused Mr. Castor, his client, 

and himself to miss the hearing. He does not in any way attempt 

to cover this up. He points out that his practice was to maintain 

two calendars with notes of scheduled court appearances and filing 

deadlines and to notify clients promptly when they must attend a 

hearing. He failed to follow that practice in this instance. 

The majority points out that it will not review a decision to 

grant or deny a Rule 60(b) motion absent abuse of discretion. That 

is only a partial statement of the rule as we have most recently 

applied it. Using a federal Seventh Circuit Court case as 

14 
authority, the majority further states that generally mistake, 

inadvertence and excusable neglect require some justification 

beyond an error, mere carelessness or ignorance of the law. 

This Court's 1990 authority on the same issue is set forth in 

Blume v. Metropolitan Life Ins. Co. (1990), 242 Mont. 465, 791 P.2d 

784. In Blume the plaintiff filed a complaint against Metropolitan 

Life Insurance Co. (Metropolitan) and service was made on the State 

Auditor and Commissioner of Insurance. The complaint, summons and 

discovery documents were mailed by certified mail and were received 

by Metropolitan. Apparently the same were lost. Metropolitan 

failed to file an answer and a default judgment was eventually 

entered in the amount of $185,986.43. In Blume we cited the 

following as the controlling standard to be applied in considering 

the District Court's refusal to set aside the default judgment 

entered against Metropolitan. The unanimous Court stated: 

Where a trial court denies a motion to set aside a 

default judgment the standard of review is that no sreat 

abuse of discretion need be shown to warrant reversal, 

or, alternatively, 'slisht abuse' is sufficient to 

reverse an order refusins to set aside a default. The 

Lords court, which drew a distinction between the 

standards of review applied to cases where motions to set 

aside default judgments had been granted and those that 

had been denied based its holding on two basic tenets: 

(1) every litigated case should be tried on its merits 

and default judgments are not favored and (2) trial 

courts have a certain amount of discretion when 

considering a motion to set aside a default judgment. . . . (Citations omitted.) (Emphasis added.) 

Blume, 791 P.2d at 785. The Court then set forth a great deal of 

the evidence submitted by Metropolitan to support its motion to set 

aside the default judgment, including the entry from the 

Metropolitan log which showed that the mail was received from the 

15 
Commissioner on February 9, 1989; and affidavits of various other 

persons who normally would have received information and acted in 

connection with litigation, but all failed to do so. The Court 

concluded that the evidence produced by Metropolitan demonstrated 

that its failure to appear was not due to any inexcusable neglect 

or disrespect for court or judicial process. They pointed out that 

it was a mystery what happened to the summons and complaint after 

it arrived at Metropolitan--although there is no argument that it 

did arrive at Metropolitan. The majority in Blume then quoted from 

a 1905 Montana case which stated: 

Nesliqence or inadvertence directlv traceable to a vartv 

litisant or his attorney, no less excusable than that 

disclosed by this record, has many times been held 

sufficient to warrant the ovenins of a default, and trial 

courts have not infrequently been reversed for their 

refusal to set aside defaults under such circumstances. 

(Emphasis added.) 

Blume, 791 P.2d at 787. then concluded that the neglect in 

the 1905 case, where an inexperienced stenographer signed an 

acceptance of service and then misplaced a complaint and summons, 

was comparable to the loss of summons and complaint in Blume. 

Blume then pointed out that the judgment would adversely effect 

Metropolitan because the amount of the judgment exceeded $185,000. 

In 1990, we concluded in Blume that an unexplained loss of a 

summons and complaint and subsequent failure to appear was 

excusable neglect. Under the present majority opinion, we are 

concluding that the unexplained failure to appear for a continued 

hearing was somehow more reprehensible than the loss of a summons 

and complaint. I find no basis for such a distinction. 

16 
I conclude that the neglect on the part of counsel for Mr. 

Castor was excusable in the same manner that the neglect on the 

part of Metropolitan and its various personnel was excusable. As 

in Blume, the judgment here adversely effected Mr. Castor. As in 

Blume Mr. Castor's counsel moved promptly to set aside the default. 

In addition, we point out that Mr. Castor in this case was the 

party who originally petitioned for the modification and who has 

been denied his opportunity to present any evidence. 

Based upon Blume I would conclude that the District Court 

abused its discretion and vacate the default judgment. 

Wtlice Y 

17 
August 29, 1991 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

James D. Elshoff 

Attorney at Law 

P.O. Box 2323 

Great Falls, MT 59403 

Marcia Birkenbuel 

Attorney at Law 

613 Strain Bldg. 

Great Falls, MT 59401 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTAN 

BY: 

Deputy