No. 81-134 INTHE SUPREPIE COURT OF THE STATE OF MONTANA 1981

IN RE THE'WRRIAGE OF DALE ELLYS LANCE, Petitioner and Respondent,-VSJOHN FESLER LANCE, Respondent and Appellant.

Appeal from: DistrictCourtof the FourthJudicial District, In and for the Countyof Missoula, The Honorable James B. Wheelis, Judge presiding.

Counsel of Record: For Appellant: E. Eugene Atherton, Kalispell, Montana

For Respondent: Ferguson & Mitchell, Missoula, Montana

Submittedon Briefs: September 14, 1981 Decided: October 30, 1981

Filed: 

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ClerkMr. Justice John C. Sheehy delivered the Opinion of the Court. Appeal is from an order of the District Court, Fourth JudicialDistrict, Missoula County,dated December 31, 1980, denying motions by John Fesler Lance to set aside the decree of dissolutionas to the property division, and for an account by Dale Ellys Lance. We affirm the DistrictCourt. Dale Ellys Lance (nowWillavize) filed a petition for dissolution of her marriage to John Fesler Lance in the DistrictCourt. On March 6, 1979, John Lance was personally served with a petition. On March 29, 1979,his defaultwas entered for failure to answer or otherwise appear in the action. On that date, a decree of dissolutionwas granted. On April 26, 1979, supplemental findings of fact were adopted by the court and also on that date, a final decree of dissolution

was entered granting custody of the children to Dale and the property out of the marital estate. In the next severalmonths, a flurry of motions were filed in the District Courtby John and Dale,none of which attacked the validity or status of the decree of dissolution,but concerned issuesrelating to his compliancewith the provisions of the decree. OnAugust 9, 1979, the District Court ruled

on several of thesemotions. An order followed onAugust 13, 1979. No motion to vacate ormodify the August 9, 1979 rulingwas filed by John,nor was an appeal taken therefrom. The succeeding filings in the District Court included motions, countermotions, proceedings for contempt (Johnwas eventually jailed for contempt), and disputeswith counsel. On October 31, 1980, about 1 1/2 years after the entry ofthe divorce decree, a hearing was had onmotions presented by John, acting without counsel, to reopen the divorce decree, and to obtain an accounting from Dalewith respect to her handling of various items of his personal property which had been in her care and custody. After the December 15, 1980hearing, the District Court issued findings of fact and conclusions, and therewithdenied both of John's motions, resulting in the January 2, 1981 order which is here appealed. The District Court determined, in examining John's motion to reopen the default judgment, that itwas not timely filed under Rule 60(b), M.R.Civ.P., and therefore treated themotion as one asking to reopen the judgment on the ground of fraud upon the court. The court then denied the motion to set aside the final decree upon the ground of fraud. The court also in the same order determined that John had granted to Daleby gift all personal property remaining to him after the entry of the final decree and that he was not entitled to an accounting thereof. The issues raised by John on this appeal follow: 1. The District Court erred in entering John's default without firstgiving notice of intention to enter default. 2. The District Court erred in failing to determine the networth of the parties prior to distribution of the marital estate. 3. Individing the marital property, the District Court erred in failing to determine the value of each asset within the group being divided. 4. The District Court erred in awarding custody of minor children to Dalewithout inquiring into the best interests of the children. 5. The District Court erred in unfairly restricting visitation rights.6. The District Court erred in granting Dale spousal maintenance. 7. The District Court erred in allowing attorney fees subsequent to the hearing of August 9, 1979. 8. The District Court erred in determining that John had transferred his property by gift to Dale. However,we find the overriding issue, upon the determination of which all else contended forby John depends, is whether the District Court properly refused to reopen the default judgment. It is obvious that John's motion to reopen the decree, filed 1 1/2 years after the decree had been entered, is not timely as a 60-daymotion under Rule 60(b),M.R.Civ.P. There are no time limits,however, to such a motion if, in essence, themotion is one to reopen or vacate a judgment because of fraud upon the court. Hopper v. Hopper (1979), Mont

# . , 601 P.2d 29, 33, 36 St.Rep. 1695, 1701; Selway - v. Burns (1967),150Mont. 1, 10, 429 P.2d 640, 645. However the fraud, to constitute grounds for reopening the decree must be extrinsic, that is, itmust be such fraud as denied the adversary an opportunity to have a trial or to fully present his side of the case. Hopper, supra;Miller v. Miller (1980),

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## , 616 P.2d 313, 318, 37 St.Rep. 1523, 1528;Deichv. Deich (1958),136 Mont. 566, 580, 323 P.2d 35, 43. Intrinsic fraud upon the court, that is representations

or concealments made during the court proceedings, assuming they are false or fraudulent,are nevertheless not grounds for reopening a decree or judgment. Miller, 616 P.2d at 319.With respect to alleged fraud, John contends that Dale, appearing at the hearing for the decree of dissolution, in the absence of John,gave the only testimony in the case. She used, it is contended, a personal financial statementof the parties thatwas four or fivemonths old; that while she supported values from the financial statement in respect to certain other properties of themarital estate,with respect to the Nighthawk Ranch, owned by the parties, she gave her opinion to the court that the ranch had a value of $400,000. John contends that District Court, in relying upon this figure, which John contends is exaggerated,made a distribution of property to Dale out of proportion to the true value of the assets of the marital estate. On this line of attack, to reopen the property settlement provisions in the decree, John must fail. The fraud, if it be construed to be fraud,was intrinsic, not extrinsic. Nothing about the actions of Dale in filing her petition, serving the same upon John, and presenting her evidence to the District Court after default had been entered,prevented John in anyway from contradicting her evidence or from having his day in court. He chose instead not to appear in the action and in the absence of extrinsic fraud, that choice binds him now to the decree thatwas entered. The District Courtproperly refused to reopen the final decree

as to the property division. When it is considered therefore that the decree of dissolutionhas become final, and is now impervious to John's attack upon the ground of fraud, most of the other issues raised by John in this appeal, being but roundabout attacks on theprovisions of the decree itself, fade to nothingness. It is too late now for him to attack the decree on the ground that the District Court had failed to determine the networth of the parties, or abused its discretionin failing to determine the value of each asset,or committed

error in awarding custody of theminor children,

### or in setting forthvisitation rights, or in granting spousal maintenance. John not having appealed from the final decree in timely fashion, the decree has become conclusiveas to all issues raised by the pleadings actually litigated and adjudged as shown on the face of the decree and necessarily determined in order to reach the conclusion announced. Meagher Cty. Newlan Creek Water Dist. v. Walter (1976),169 Mont. 358, 362, 547 P.2d 850, 853; Missoula Light & Water Co. v. Hughes (1938),106 Mont. 355, 366, 77 P.2d 1041, 1047. In like manner, John's attack upon the allowance of attorneys fees subsequent to the hearing of August 9, 1979 is not within our power of review, since that provision of the District Court is not within the order filed January 2, 1981,which is appealed from here. John,however, contends that the default decree should be set aside because itwas entered by the District Court without John being first given notice of intention to enter the default. John relies upon Rule 55(b), M.R.Civ.P. which states that if a party againstwhom judgmentby default is sought has appeared in the action, he shall be served with written notice of the application for judgment at least 3 days prior to the hearing. John contends that he was entitled to such notice here because after he was servedwith the petition and summons on March 6, 1979, and on that date he wrote a letter to the District Court judge and a second letter to the District Court onMarch 15, 1979. At the hearing to set aside the decree, the district judge indicated that he did not read such letters,nor open them because he follows the policy ofnot engaging in correspondence or reading correspondence coming to him from litigants in a cause before him. The letters themselveswere not served upon counsel for the petitioner, nor upon Dale, and no appearance fee of any kind

was paid in connectionwith the letters. John contends that

one or both of the letters can be deemed "anappearance," P inwhich event the provisions in Rule 55(b) would apply. The party served with a summons and complaint or petition mustwithin 20 days file a responsivepleading ormotion in the courtwhere the action ispending. Rule 12(a)

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## , M.R.Civ.P. Thepurpose of the rule requiring responsive pleadings is to enable the court to define the issues, to have the issues litigated and decided, and to assure finality

as to the issuesdecided in any judgment entered. Private writings to a district judge, not filed with the clerk of the court, and not served upon adverse parties or their counsel do not constitute "anappearance"which may forestall the entry of a default. Rule 55(a), M.R.Civ.P. requires the clerk of the court to enter the default of a party who has failed to plead or otherwise defend "asprovided by these rules." The three-day notice provision is applicable only if judgmentby default is sought against the person who has appeared "in the action.'' Rule 55(b) (2),M.R.Civ.P. Stated simply,Johndid not "appear"in this action to oppose his wife's petition for dissolution. He was not entitled to a three-day notice. The second part of John's appeal is to that portion of the order filed January 2, 1981,determining that John had given to Dale "allpersonal property remaining to him after the entry of the final decree

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In his appeal brief, John admits that he made several communications to the trial judge, his formerwife and toher attorney that if the decree of dissolution is binding, he would leave to his wife and children all of his property other than his clothing and personal effects. The District Court ruled that John had in fact made a gift of his personal property to Dale, but not his interest in the marital real estate. John now contends that it is obvious thatwhen he made the various representationsof gifts to his wife and children, itwas because he could not live up to or abide by the terms of the finaldecree and that his subsequent actions in not complyingwith the terms of the decree of dissolutionwith respect to the award of themarital assets demonstrated his unwillingness or lack of donative intent to transfer the personal property to Dale. A gift is complete when the donor has an irrevocable intention to give; delivery, actual or implied, occurs which evidences the intent; and there is acceptance by the donee. Pattersonv. Halterman (1973),161Mont. 278, 282, 505 P.2d 905, 907. The intentionmay be defeated if there is fraud, duress, undue influence ormental incapacity. Patterson, supra,at 908;Cameron v. Cameron (19781, -Mont. 

### - I 587 P.2d 939, 945, 35 St.Rep. 1723, 1730. In this case John, among other actions indicating his intent to make a grant of his property to his formerwife, delivered an informal writing subscribed by him and witnessed by two individuals giving his portion of the property, jointly owned with his formerwife, to her. Upon that instrument, she took possession of the property. Some of the personal property would have been abandoned and losthad shenot taken steps to preserve the property upon the donative intention expressed by John. 

### The findings of a trial courtwith respect to facts and issuemay not be set aside by this Court unless the findings are clearly erroneous. Rule 52(a)

## ,M.R.Civ.P. We have no basis in the record in this

case to determine that the District Courtwas clearly erroneous in finding that Johnhad indeedmade a gift of his personal property to hiswife. Because of that, he was not entitled to an accounting of thatproperty at a later time and his motion for accountingwas properly denied by the District Court. Before closing,wemust observe that John has brought a good deal of difficulty upon himself, his formerwife, and their children by his actions throughout this proceeding. He chose not to consult an attorney, although he was advised to do so to dispute the petition for dissolution, if thatwas his intention; when he did retain counsel, he had disagreements with such counsel and has had an on-again off-again relationship with several counsel in this matter; his attempts to handle his own case and to proceed without counselwere inept and undoubtedly tried the patience of the district judge,who withal protected John as far as possible from his ineptness; hewrote a maze of correspondence and documents,villifying the district judge, threatening kidnapping,and attacking the character of his formerwife; his actions in defiance of the orders of the District Court were contemptuous, and in facthe found himself jailed for contempt. All of this has resulted in no benefit to himself and probably great detriment to the happiness and welfare of his formerwife and their children and to the value of themarital estate. It is time for John to recognize that he has come to the end of the string, thathis marriage to Dale is finally terminated and that for the good of his children it is time to take somenew directions. The judgment of the District Court is affirmed.



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WeConcur:



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Mr. Justice Daniel J. Shea specially concurring: I join inthe result reached by the majority but not inallthat is said. Much of what is stated has nothing todo with the issueswehave been asked todecide. Because wehave not reached themeritsof the property division, but rather have decided thatMr. Lance did not protect his interest by proper appearance incourt tocontest the wife's demands and what the trialcourt ultimately granted, we need not go beyond thatrecord toproperly dispose of the appeal. 

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