No. 14502 INTHE SUPREMECOUFU' OFTHE STATEOF KWTANA 1979

Plaintiff andAppellant,

-VSHEXEFDRD, Defendant andRespondent.

Appeal fm: DistrictCourt of theFourthJudicialDistrict, HonorableE. GardnerBrownlee, Judgepresiding. Counsel of Record: ForFppellant: Tipp, Hovenand Skjelset, Missoula, mntana ForRespondent: LeeA. Jordan, Missoula, Plbntana

S-tted onbriefs: May 9, 1979 

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

Plaintiff CharlesW. Hereford appeals from a summary judgment entered in favor of the defendantMargaret 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 $100per 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'sbenefits under Charles' social security allowances. Any social security benefits she receivedwere to be credited to Charles' support obligation reducing it by that amountper 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 supportobligation because he did not receive full credit for the social security payments. The complaint also requested anaccounting for certain certificatesof 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 affirmativedefensesunder Rule 8(b)

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### ,Mont.R. Civ.P. After interrogatories were filed and answered by the parties, Charlesmoved 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 countermotion

or request a summary judgment on her behalf. The District Court entered summary judgment forMargaret based on four grounds. First, Charles was guilty of laches; second,any overpaymentswere voluntary; third,Margaret had made personal sacrifices to assure Charleswould 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 judgmentwasmade by Charles but denied. From these rulings a notice of appealwas 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 Charlesnotice 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 Graveleyv. MacLeod (1978)

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# . , 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 itwas error to treat a motion to dismiss as amotion for summary judgment, in the absence of notice thereof to the complaining party and without affording thatparty a reasonable opportunity to oppose suchmotion. 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 greatweight of authority,no formal crossmotion isnecessary for a court to enter summary judgment. The invocation of the power of a court to render summary judgment in favor of themoving party gives the courtpower 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 amatter of law. 6Moore'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 judgmentwas 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 byCharles' motion for summary judgment and the subsequent hearing thereonwas the claimed excess payments. Itwas 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 ofmaterial fact, thereby eliminating unnecessary trial, delay and expense. The purpose is not to resolve factual issues. Bonawitz v. Bourke (1977), Mont

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### , 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 Courtdetermined Charles was guilty of laches in delaying the ascertainment of the true amounts he should have paid for child support. Lachesmeans 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)

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### , 574 P.2d 254, 258, 35 St.Rep. 76, 81;Davis v. Steingruber (1957), 131Mont. 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 ispresumptively aware of his rightswhere 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 Charles1knowledgeof his rights, either actually or presumptively. While Charles varied the amounts of his monthly payments, the record does not disclose onwhat basis Charles arrived at each monthly figure. Similarly, it is unclear from the record whether Charles continued to receive social security after his divorce fromMargaret. The receiptof such checks might have put Charles on inquiry notice. The District Court also deemed any overpaymentsby Charlesvoluntary. As with laches, the record must disclose either actual or presumptive knowledgeof overpaymentbefore suchpayments 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 conclusionMargaret 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 tomove to any city or state even though Charles1 visitation rightswould 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 supportJames, both contributed to his support, and any and all support paymentswere used for James1support.Generally, there can be no restitution where it was just that the payment should have been made and where, as between the parties, itwould be inequitable to require any repayment. Restatement of Restitution 861,p. 238 (1937): Here, however,Margaret has apparently receivedmore 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, restitutionunder 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 Sweckerv. Dorn (1979)

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# . , 593 P.2d 1055, 36 St. - Rep. 844 (by implication); and 6Moore'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 amatter of law, it must be very clear that all the factsbearing on the issues are before this Court. Otherwise, we should remand for further development of the case, which may ormay 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 thisOpinion.

We concur:

ief Justice



## .............................. JusticesMr. Justice Daniel J. Shea concurring in the foregoing Opinion but with separate comments.

I concurwith the Opinion of the majority. The decision of the District Courtwas without question, erroneous. What bothersme 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 considerablymore difficult when the attorney for theprevailing 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 Courtwas manifestly in error. This is not theway thepractice of law should be practiced.