IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA ex rel. 

CARMEN D. MARLENEE, 

Relator, 

VS. 

DISTRICT COURT OF THE FIFTEENTH 

JUDICIAL DISTRICT OF THE STATE 

OF MONTANA, IN AND FOR THE COUNTY 

OF DANIELS and THE HONORABLE M. 

JAMES SORTE, the Judge thereof, 

Respondents. 

~-~p 

ORDER 

PER CURIAM: 

Respondents' petition for rehearing and relator's objections thereto having been filed herein and considered by 

the Court, 

IT IS ORDERED; 

That the opinion in the above named cause, decided on 

March 8, 1979, is modified as follows: 

(1) On Page 6, lines 2 through 8 are deleted and the 

following put in their place. 

"The district court shall enter a decree of dissolution of marriage if: 

(b) the court finds tha+ tho rnarr; 3mn : ; --, 

"(i) that the parties have lived separate and apart 

for a period of more than 180 days next preceding 

the commencement of this proceeding; or 

"(ii) that there is serious marital discord which 

adversely affects the attitude of one or both of 

the parties towards the marriage; . . ." Section 

48-316, R.C.M. 1947, now section 40-4-104 MCA. 

(Emphasis supplied.) 
(2) On page 3, line 11 from the top of the page, 

the words "Both counsel were present." are deleted. 

As so modified, the petition for rehearing is denied. 

DATED this 2d- day of March, 1979. 

0' Justices V 
No. 14620 

IN THE SUPHEME COURT OF THE STATE OF MCKCANA 

1979 

STATE OF KINTANA, ex rel., 

CARMEN D. M?mmEE, 

Relator, 

DISTRICT COW OF THE FDTEENX 

JUDICIAL DISTRICT OF THE STATE OF 

MINTANA, IN AND FOR THE COUNTY OF 

DANIELS and THE HONOl?Al3LE M. JAMES 

SOFEE, the Judge thereof, 

Respondents. 

ORIGINAL, PFuxEEDING: 

Counsel of Record: 

For Relator : 

Gene Huntley, Baker, Wntana 

For Respondents: 

James Sinclair, Billings, Wntana 

Suhitted on briefs: February 13, 1979 

wided:IRAR 6. - 1979 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

This is an original application for a writ of supervisory control or alternatively for a writ of review seeking 

reversal of a District Court order dissolving a marriage. We 

ordered briefs filed and the application is now before us for 

determination. 

The underlying action to which this application relates 

is cause number 3096 in the District Court of Daniels County 

entitled "In re: The Marriage of Carmen D. Marlenee, Petitioner, 

and Ronald C. Marlenee, Respondent." In that action the wife 

sought a dissolution of the marriage, custody of the minor children of the parties, and a division of the marital property whereby 

she would receive the husband's equity in the farm and ranch real 

estate, machinery and cattle, and the residence and furniture in 

Scobey in lieu of child support and the husband would receive all 

other property of the parties including a chalet. 

The husband filed a response in that action admitting the 

marriage was irretrievably broken; admitting that the wife was 

a fit person for custody of the minor children and that the children's best interests would be served by awarding their custody to 

the wife; denying that he was not a fit and proper person for the 

custody of the children as alleged by the wife; denying that the 

property division sought by the wife is equitable; and seeking 

an equitable division of the marital property. 

During the course of proceedings the deposition of the 

husband was taken and various motions were filed by the parties. 

On November 9, 1978 the district judge set all pending 

motions for hearing in Wolf Point, Roosevelt County, Montana on 

November 21. Roosevelt County is in the same judicial district 

(the 15th) as Daniels County; the presiding district judge was 

the district judge of the entire fifteenth judicial district. 

The time and place where the motions would be heard was for the 
accomodation of counsel. Both counsel orally stipulated to the 

time and place of hearing and that the matter would be deemed 

to have been heard in ~aniels County. 

The order was subsequently vacated because of a conflict 

involving the wife's counsel. On November 22 an order was entered 

setting the hearing on dissolution of the marriage and all pending matters for November 28 in Sidney, Richland County, Montana 

outside the fifteenth judicial district but before the same presiding judge of the fifteenth judicial district. 

The hearing was held as scheduled in Sidney, Richland 

County, Montana. Both counsel were present. Neither of the parties 

personally appeared. No objections to the time and place of 

hearing appear in the record of the hearing. 

On November 29, the presiding judge entered an order (1) 

granting the husband's motion for judgment on the pleadings on 

the divorce issue and declaring the marriage dissolved, (2) reserving division of the marital property for a later hearing and 

determination, and (3) ordering the parties not to transfer, dispose or encumber the property except in the usual course of 

business or for the necessities of life. No findings of fact 

or conclusions of law were made or issued, nor was any determination made on custody of the minor children. 

In the application for a writ of supervisory control or 

a writ of review now before this Court, the wife seeks to vacate 

and set aside the decree dissolving the marriage. She lists two 

legal issues for review: (1) whether the District Court can grant 

a divorce without a hearing where both parties have alleged that 

the marriage is irretrievably broken; (2) whether a divorce can 

be granted by a judge outside the district in which he is authorized to act. 

We accept jurisdiction to review these issues by writ of 

supervisory control. We are empowered to do so by Article VII, 
Section 2(1) granting us "original jurisdiction to issue, hear, 

and determine writs of habeas corpus and other writs as may be 

provided by law", and by Article VII, Section 2(2) granting 

this Court "general supervisory control over all other courts". 

The writ of supervisory control has been a part of the law of 

this state for over 50 years. State ex rel. Rubin v. District 

Court et al. (1921), 62 Mont. 60, 203 P. 860; State ex rel. Heinze 

v. District Court etc. (1905), 32 Mont. 579, 81 P. 345. 

We consider this a proper case for a writ of supervisory 

control because relator wife has no plain, speedy and adequate 

remedy at law by appeal. Rule 54(b), M.R.Civ,P. provides: 

" (b) Judgment Upon Multiple Claims or Involving 

Multi~le - Parties. When multiple claims for relief 

or muitiple parties are involbed in an action, the 

court may direct the entry of a final judgment as 

to one or more but fewer than all of the claims 

or parties only upon an express determination that 

there is no just reason for delay and upon an express direction for the entry of judgment. In the 

absence of such determination and direction, any 

order or other form of decision, however designated, 

which adjudicates less than all the claims or the 

rights and liabilities of less than all the parties 

shall not terminate the action as to any of the 

claims or parties, and the order or any other form 

of decision is subject to revision at any time before the entry of judgment adjudicating all the 

claims and the rights and liabilities of all the 

parties." 

Here there was no express determination by the District 

Court that there is no just reason for delay in judgment on the 

claim for dissolution of the marriage nor is there an express 

direction for entry of judgment thereon, Without these prerequisites, relator wife cannot appeal from the order dissolving the 

marriage at this time nor at any time prior to entry of judgment 

or decree on all issues before the District Court. Krusemark v. 

Hansen et al. (1979), Mont . -' - P.2d , 36 St.Rep. 159. 

Respondent husband directs our attention to section 48- 

328, R.C.M. 1947, now section 40-4-108 MCA, providing that a decree 

of dissolution of marriage is final when entered, subject to the 
right of appeal and Rule 1, M.R.App.Civ.P. providing for an 

appeal from a final judgment. Neither of these sections grant 

the right of immediate appeal from a partial judgment. Instead 

the right of immediate appeal from a judgment on a part but not 

all of the claims for relief in a single action is governed by 

Rule 54(b), M.R.Civ.P., as discussed in the preceding paragraph. 

Having accepted jurisdiction of the application for a 

writ of supervisory control, we are confronted with the question 

of whether a District Court can grant a judgment on the pleadings dissolving the marriage where both parties allege the marriage is irretrievably broken without an evidentiary hearing 

and entry of findings to that effect supported by the evidence. 

Relator wife argues that the District Court cannot under 

the Uniform Marriage and Divorce Act (UMDA) enacted by the Montana 

legislature cite McKim v. McKim (1972), 100 Cal.Rptr. 140, 493 

P.2d 868, in support. Respondent husband contends the District 

Court can, or alternatively that the pleadings plus his deposition 

empower the District Court to grant judgment of dissolution. 

1379; Friedman v. Friedman (1974), 233 Ga. 254, 210 S.E.2d 754; 

and the dissenting opinion in McKim, supra. 

We note that although the District Court indicated at the 

hearing respondent husband's deposition would be considered, the 

order dissolving the marriage was simply a judgment on the pleadings. It will be so considered in this opinion. 

Whatever the law may be in other jurisdictions, the Montana 

legislature has established the law in Montana. The UMDA as 

enacted in Montana provides: 

"The court, after hearing, shall make a finding 

whether the marriage is irretrievably broken . . ." Section 48-319, R.C.M. 1947,-now section 

40-4-107 MCA. (Emphasis supplied.) 

No such finding was made in this case. 
The UMDA as enacted in Montana further provides: 

"The district court shall enter a decree of 

dissolution of marriage if: 

"(b) the court finds that the marriage is irretrievably broken, which findings shall be supported 

by evidence." Section 48-316, R.C.M. 1947, now 

section 40-4-104 MCA. 

No such evidence was introduced or findings made in this case. 

Respondent husband argues that the District Court's order 

is a judgment on the pleadings and that all necessary allegations 

are contained in the petition and response in that court, both 

of which were under oath and all pertinent and required allegations were admitted. 

We have no quarrel with the general law permitting entry 

of judgment on the pleadings in cases where the necessary allegations are admitted. However, Montana law is equally clear that 

a specific statute is enacted governing a particular subject, the 

general statute or law must yield to the specific statute to the 

extent of any conflict. Huber v. Groff (1976), Mont . I 

558 P.2d 1124, 1134, 33 St.Rep. 1124; State ex rel. Browrnan v. 

Wood (1975), 168 Mont. 341, 543 P.2d 184. Here the specific statutes governing dissolution of marriage (UMDA) require the court 

to make findings that the marriage is irretrievably broken supported 

by evidence which controls over any general statutes or law on 

judgments on the pleadings to the extent of any inconsistency. 

In view of our holding on this issue we need not reach or 

decide the second issue. 

We hold the judgment of dissolution of the marriage was 

prematurely entered for the reasons stated in this opinion. 

Chief Justice 
We concur: