No. 14502 

IN THE SUPREME COUFU' OF THE STATE OF KWTANA 

1979 

Plaintiff and Appellant, 

-VSHEXEFDRD, 

Defendant and Respondent. 

Appeal fm: District Court of the Fourth Judicial District, 

Honorable E. Gardner Brownlee, Judge presiding. 

Counsel of Record: 

For Fppellant: 

Tipp, Hoven and Skjelset, Missoula, mntana 

For Respondent: 

Lee A. Jordan, Missoula, Plbntana 

S-tted on briefs: May 9, 1979 

AUG - 5 vJT(J Filed : 
Mr. Justice John C. Sheehy delivered the Opinion of the Court. 

Plaintiff Charles W. Hereford appeals from a summary 

judgment entered in favor of the defendant Margaret Hereford, 

a nonmoving party. The summary judgment entered by the 

District Court, Fourth Judicial District, Ravalli County, the 

Honorable E. Gardner Brownlee presiding, was based on defenses 

not pleaded or argued. 

Charles and Margaret were formerly husband and wife. 

They were divorced on January 3, 1972. The divorce decree 

ordered Charles to pay $100 per month as child support until 

James, the minor child of the parties, reached legal age on 

December 4, 1977. The total amount due for child support under 

the divorce decree was $7,113.33. 

The divorce decree also ordered Margaret to apply for 

children's benefits under Charles' social security allowances. 

Any social security benefits she received were to be credited 

to Charles' support obligation reducing it by that amount per 

month. 

Margaret applied for and received social security 

benefits starting in February 1972, and allegedly totaling 

$5,558.10. Beginning January 1, 1972, Charles made payments 

of 

to the Clerk of Court in various amounts/less than $100. 

Charles believed such payments were the true amounts due after 

credit for social security benefits received by Margaret. The 

amounts paid by Charles allegedly totaled $4,042.88. 

On July 28, 1977, Charles filed this action for an 

accounting and a judgment for excess child support payments 

totaling $2,487.65. Charles alleged he overpaid his child 

support obligation because he did not receive full credit for 

the social security payments. The complaint also requested an 
accounting for certain certificates of deposit in the names of 

Charles and James. This accounting, however, is not in issue 

here. 

Margaret filed her answer admitting she had received 

payments from both Charles and the Social Security Administration, but no amounts received by her were alleged. The answer 

contained no affirmative defenses under Rule 8 (b) , (c) , Mont. R. 

Civ.P. 

After interrogatories were filed and answered by the 

parties, Charles moved for summary judgment pursuant to Rule 56, 

M0nt.R.Civ.P. Margaret resisted the motion and pointed out 

areas of contested fact. She did not make any counter motion 

or request a summary judgment on her behalf. 

The District Court entered summary judgment for Margaret 

based on four grounds. First, Charles was guilty of laches; 

second, any overpayments were voluntary; third, Margaret had 

made personal sacrifices to assure Charles would have the 

full visitation rights entitled to him under the divorce decree; and 

fourth, both Charles and Margaret had a duty to support James, 

both had contributed to his supgort, and any and all support 

payments went for support of James. 

A motion to amend the judgment was made by Charles but 

denied. From these rulings a notice of appeal was filed. 

Charles raises three issues upon this appeal: 

1. Did the District Court err in granting summary 

judgment to a nonmoving party without first giving Charles 

notice and an opportunity to defend against such judgment? 

2. Is the summary judgment entered by the District 

Court in favor of Margaret supported by record? 

3. Must the District Court grant Charles' motion for 

summary judgment? 
Could the District Court grant summary judgment in 

favor of Margaret, a nonmoving party, without first giving 

Charles notice and opportunity to prove the existence of a 

genuine issue of material fact? 

This Court has never ruled on this specific issue. We 

held in Graveley v. MacLeod (1978) , Mont . , 573 P.2d 

1166, 35 St.Rep. 99, and State ex rel. Dept. of H. and E. S. 

v. City of Livingston (1976), 169 Mont. 431, 548 P.2d 155, that 

it was error to treat a motion to dismiss as a motion for summary 

judgment, in the absence of notice thereof to the complaining 

party and without affording that party a reasonable opportunity 

to oppose such motion. However, those decisions were based on 

the different functions of Rule 12(b), M0nt.R.Civ.P. and Rule 

56, M0nt.R.Civ.P. 

By the great weight of authority, no formal crossmotion is necessary for a court to enter summary judgment. The 

invocation of the power of a court to render summary judgment 

in favor of the moving party gives the court power to render 

summary judgment for his adversary provided the case warrants 

that result. However, the court must be very careful that the 

original movant had a full and fair opportunity to meet the 

proposition,that there is no genuine issue of material fact 

and the other party is entitled to judgment as a matter of law. 

6 Moore's Federal Practice, 11 56.12, pp. 56-331 and 56-334. 

The record here discloses that Charles was never given 

notice of either the District Court's intent to grant summary 

judgment in favor of Margaret, or the grounds upon which such 

judgment was to be based. He was not given an opportunity to 

present facts concerning the grounds upon which the District 

Court granted summary judgment. The only issue addressed by 
Charles' motion for summary judgment and the subsequent hearing 

thereon was the claimed excess payments. 

It was error for the District Court to grant summary 

judgment in favor of Margaret without first affording Charles' 

notice and a reasonable opportunity to be heard. 

Is the summary judgment entered by the District Court 

in favor of Margaret supported by the record? 

The general purpose of Rule 56, Mont.R.Civ.P., is to 

promptly dispose of actions which do not present genuine issues 

of material fact, thereby eliminating unnecessary trial, delay 

and expense. The purpose is not to resolve factual issues. 

Bonawitz v. Bourke (1977), Mont . - , 567 P.2d 32, 33, 34 

St.Rep. 638, 640; Sillaway v. Jorgenson (1965), 146 Mont. 307, 

310, 406 P.2d 167, 169. Considering the facts at hand, we find 

genuine issues of material fact still remain unresolved. Therefore, Margaret was not entitled to summary judgment as a matter 

of law. 

The District Court determined Charles was guilty of 

laches in delaying the ascertainment of the true amounts he 

should have paid for child support. 

Laches means negligence to the assertion of a right, 

and exists where there has been a delay of such duration as to 

render enforcement of an asserted right inequitable. Mountain 

View Cemetery v. Granger (1978) , Mont . - , 574 P.2d 254, 258, 

35 St.Rep. 76, 81; Davis v. Steingruber (1957), 131 Mont. 468, 

470, 311 P.2d 784, 785. A complainant can be charged with 

laches if, but only if he was either actually or presumptively 

aware of his rights. A ompl plain ant is presumptively aware of 

his rights where the circumstances of which he is cognizant are 

such as to put a man of ordinary prudence on inquiry. See 

Jeffrey v. Pioneer Placer Dredging Co. (D.Mont. 1943), 50 F.Supp. 
43; and 27 Arn.Jur.2d Equity 8167, p. 710 and 711. 

There are no facts in the record before us which would 

establish Charles1 knowledge of his rights, either actually or 

presumptively. While Charles varied the amounts of his monthly 

payments, the record does not disclose on what basis Charles 

arrived at each monthly figure. Similarly, it is unclear from 

the record whether Charles continued to receive social security 

after his divorce from Margaret. The receipt of such checks 

might have put Charles on inquiry notice. 

The District Court also deemed any overpayments by 

Charles voluntary. As with laches, the record must disclose 

either actual or presumptive knowledge of overpayment before 

such payments may be deemed voluntary. The needed facts for 

such a conclusion are absent from the record. 

The third and fourth grounds for the ~istrict Court's 

summary judgment in favor of Margaret are not supported by 

the record. 

The third basis was the conclusion Margaret had made 

certain personal sacrifices. That is, it would be inequitable 

to grant restitution of any overpayments to Charles since 

Margaret had remained in Hamilton so Charles could enjoy the 

visitation rights granted him by the divorce decree. Such 

reasoning is untenable. Pursuant to the divorce decree, Margaret 

had a right to move to any city or state even though Charles1 

visitation rights would be made more onerous, and any costs or 

expenses incurred in order to exercise visitation rights after 

such a move were to be borne solely by Charles. 

The District Court also felt it inequitable to require 

restitution of any overpayments since both Charles and Margaret 

had a duty to support James, both contributed to his support, 

and any and all support payments were used for James1 support. 
Generally, there can be no restitution where it was 

just that the payment should have been made and where, as between the parties, it would be inequitable to require any 

repayment. Restatement of Restitution 861, p. 238 (1937): 

Here, however, Margaret has apparently received more money than 

the divorce decree deemed adequate to support James. The 

that 

record is devoid of any allegation/the child support amounts 

contained in the divorce decree were inadequate, and Margaret 

has apparently never made any attempt to increase the child 

support payments so decreed. Thus, restitution under the facts 

contained in the record can not be considered inequitable as 

between the parties. 

Must the District Court grant Charles' motion for 

summary judgment? In effect, Charles is requesting this Court 

to reverse sumiiary judgment in favor of Margaret and direct the 

District Court to enter one in his favor. 

Clearly, this Court has the power to take such action. 

See Swecker v. Dorn (1979) , Mont . - , 593 P.2d 1055, 36 St. 

Rep. 844 (by implication); and 6 Moore's Federal Practice, 

11 56.12, p. 56-337. However, it does not necessarily follow 

that summary judgment in favor of Charles is proper because 

summary judgment in favor of Margaret was erroneous. Before 

this Court can establish- that judgment in favor of Charles 

should be entered as a matter of law, it must be very clear that 

all the facts bearing on the issues are before this Court. 

Otherwise, we should remand for further development of the case, 

which may or may not include further motions for summary judgment 

by the parties. 6 Moore's Federal Practice, 11 56.12, p. 56-338. 

The facts of this case are not so clear that this Court 

may direct the ~istrict Courk to enter summary judgment in 

favor of Charles. 
The order of the District Court granting summary 

judgment in favor of Margaret is reversed, and the cause is 

remanded for further proceedings consistent with this Opinion. 

We concur: 

ief Justice 

.............................. Justices 
Mr. Justice Daniel J. Shea concurring in the foregoing 

Opinion but with separate comments. 

I concur with the Opinion of the majority. The decision 

of the District Court was without question, erroneous. What 

bothers me however, is the failure of respondent's attorney 

to file a brief in this Court. This Court is, of course, 

obligated to render justice to the parties in the best way that 

it can. This task is made considerably more difficult when 

the attorney for the prevailing party fails to file a brief in 

defense of the judgment in the District Court, even though 

never repudiating the benefits of that judgment by admitting 

that the District Court was manifestly in error. This is not 

the way the practice of law should be practiced.