No. 81-134 

IN THE 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: District Court of the Fourth Judicial District, 

In and for the County of Missoula, The Honorable 

James B. Wheelis, Judge presiding. 

Counsel of Record: 

For Appellant: 

E. Eugene Atherton, Kalispell, Montana 

For Respondent: 

Ferguson & Mitchell, Missoula, Montana 

Submitted on Briefs: September 14, 1981 

Decided: October 30, 1981 

Filed: QCT U! 1988 

-p.YT 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the Court. 

Appeal is from an order of the District Court, Fourth 

Judicial District, Missoula County, dated December 31, 1980, 

denying motions by John Fesler Lance to set aside the decree 

of dissolution as to the property division, and for an 

account by Dale Ellys Lance. 

We affirm the District Court. 

Dale Ellys Lance (now Willavize) filed a petition for 

dissolution of her marriage to John Fesler Lance in the 

District Court. On March 6, 1979, John Lance was personally 

served with a petition. On March 29, 1979, his default was 

entered for failure to answer or otherwise appear in the 

action. 

On that date, a decree of dissolution was 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 several months, a flurry of motions were filed 

in the District Court by John and Dale, none of which attacked 

the validity or status of the decree of dissolution, but 

concerned issues relating to his compliance with the provisions 

of the decree. On August 9, 1979, the District Court ruled 

on several of these motions. An order followed on August 13, 

1979. No motion to vacate or modify the August 9, 1979 

ruling was filed by John, nor was an appeal taken therefrom. 

The succeeding filings in the District Court included 

motions, countermotions, proceedings for contempt (John was 

eventually jailed for contempt), and disputes with counsel. 

On October 31, 1980, about 1 1/2 years after the entry of 
the divorce decree, a hearing was had on motions presented 

by John, acting without counsel, to reopen the divorce 

decree, and to obtain an accounting from Dale with respect 

to her handling of various items of his personal property 

which had been in her care and custody. After the December 

15, 1980 hearing, the District Court issued findings of fact 

and conclusions, and therewith denied 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 it was not 

timely filed under Rule 60(b), M.R.Civ.P., and therefore 

treated the motion 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 Dale by 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 first giving notice of intention to enter default. 

2. The District Court erred in failing to determine 

the net worth of the parties prior to distribution of the 

marital estate. 

3. In dividing 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 Dale without 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 for by 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-day motion under Rule 60(b), M.R.Civ.P. 

There are no time limits, however, to such a motion if, in 

essence, the motion 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), 150 Mont. 1, 10, 429 P.2d 640, 645. 

However the fraud, to constitute grounds for reopening the decree 

must be extrinsic, that is, it must 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), - Mont . - , 616 P.2d 313, 318, 37 St.Rep. 

1523, 1528; Deich v. 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 statement of 

the parties that was four or five months old; that while she 

supported values from the financial statement in respect to 

certain other properties of the marital 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 that was entered. The 

District Court properly refused to reopen the final decree 

as to the property division. 

When it is considered therefore that the decree of 

dissolution has 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 the provisions 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 net worth of the parties, or abused its discretion 
in failing to determine the value of each asset, or committed 

error in awarding custody of the minor children, or in 

setting forth visitation rights, or in granting spousal 

maintenance. John not having appealed from the final decree 

in timely fashion, the decree has become conclusive as 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 it was 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 against whom judgment by 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 served with 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 on March 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 of 
not engaging in correspondence or reading correspondence 

coming to him from litigants in a cause before him. The 

letters themselves were not served upon counsel for the 

petitioner, nor upon Dale, and no appearance fee of any kind 

was paid in connection with the letters. John contends that 

one or both of the letters can be deemed "an appearance," P 

in which event the provisions in Rule 55(b) would apply. 

The party served with a summons and complaint or petition 

must within 20 days file a responsive pleading or motion in 

the court where the action is pending. Rule 12 (a) , (b) , 

M.R.Civ.P. The purpose 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 issues decided 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 "an appearance" 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 "as provided by 

these rules." The three-day notice provision is applicable 

only if judgment by default is sought against the person who 

has appeared "in the action.'' Rule 55(b) (2), M.R.Civ.P. 

Stated simply, John did 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 "all personal property remaining to him after 

the entry of the final decree . . ." 

In his appeal brief, John admits that he made several 

communications to the trial judge, his former wife and to 
her 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 that when he made 

the various representations of gifts to his wife and children, 

it was because he could not live up to or abide by the terms 

of the final decree and that his subsequent actions in not 

complying with the terms of the decree of dissolution with 

respect to the award of the marital 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. 

Patterson v. Halterman (1973), 161 Mont. 278, 282, 505 P.2d 

905, 907. The intention may be defeated if there is fraud, 

duress, undue influence or mental 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 former wife, 

delivered an informal writing subscribed by him and witnessed 

by two individuals giving his portion of the property, 

jointly owned with his former wife, to her. Upon that 

instrument, she took possession of the property. Some of 

the personal property would have been abandoned and lost had 

she not taken steps to preserve the property upon the donative 

intention expressed by John. The findings of a trial court 
with respect to facts and issue may 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 Court was clearly erroneous 

in finding that John had indeed made a gift of his personal 

property to his wife. Because of that, he was not entitled 

to an accounting of that property at a later time and his 

motion for accounting was properly denied by the District 

Court. 

Before closing, we must observe that John has brought a 

good deal of difficulty upon himself, his former wife, 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 that was 

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 counsel were inept and 

undoubtedly tried the patience of the district judge, who 

withal protected John as far as possible from his ineptness; 

he wrote a maze of correspondence and documents, villifying 

the district judge, threatening kidnapping, and attacking 

the character of his former wife; his actions in defiance of 

the orders of the District Court were contemptuous, and in 

fact he 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 former wife and their 

children and to the value of the marital estate. It is time 

for John to recognize that he has come to the end of the 

string, that his marriage to Dale is finally terminated and 

that for the good of his children it is time to take some 
new directions. 

The judgment of the District Court is affirmed. 

-- 

Justice 

We Concur: 

............................... Justices 

Mr. Justice Daniel J. Shea specially concurring: 

I join in the result reached by the majority but not 

in all that is said. Much of what is stated has nothing 

to do with the issues we have been asked to decide. Because 

we have not reached the merits of the property division, but 

rather have decided that Mr. Lance did not protect his 

interest by proper appearance in court to contest the wife's 

demands and what the trial court ultimately granted, we need 

not go beyond that record to properly dispose of the appeal. 

/--I ,-