No. 84-435 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

IN RE THE MARRIAGE OF 

KEMP WILSON, 

Petitioner and Respondent, 

-vsBETTY L. WILSON , 

Respondent and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Diane G. Barz, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Matovich & Addy; Carey E. Matovich argued, Billings, 

Montana 

For Respondent : 

James J. Sinclair, Billings, Montana 

Donald Garrity argued, Helena, Montana 

Submitted: MaY 22, 1985 

Decided: June 25, 1985 

Filed: JUM L .: iggS 

-- 

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

Court. 

This is an appeal by Betty Wilson, hereinafter the wife, 

from an order of the Thirteenth Judicial Eistrict, 

Yellowstone County, denying her post-judgment motions to 

amend findings of fact and have a new trial in a divorce 

action. Kemp Wilson, hereinafter the husband, moved to 

dismiss this appeal as barred by time limitations. We 

entertain the appeal as timely, affirm the District Court's 

denial of the post-judgment motions and remand for 

determination of attorney fees. 

Procedural Background 

The husband filed for divorce on September 7, 1979. The 

divorce decree was filed May 29, 1980. On June 10, 1980 the 

wife filed Rule 52 and 59 motions to amend findings and have 

a new trial. On May 3, 1984 she filed motions captioned 

"Amended motion to Amend." These were an attempt to amend 

the June 10, 1980 motions to amend, not the 1980 findings. 

For clarity the first motions are referred to as the 1980 

motion and the second motions to amend the first motion are 

referred to as the May 1984 motion. 

This procedure was repeated on June 22, 1984, after the 

June 12, 1984 notice of entry of the amended decree. The 

wife's attorney filed a motion to amend the findings of fact 

and a motion for a new trial. On July 25, 1984, she 

attempted to amend the June 22, 1984 motion. These motions 

were deemed denied and this appeal followed. For clarity 

these motions are referred to as the June 1984 motion. 

The relevant procedural history of this case is: 

Sept. 7, 1979 The husband filed for divorce. 
May 29, 1980 

June 10, 1980 

July 18, 1980 

Aug. 8, 1980 

May 6, 1982 

Aug. 10, 1982 

Oct. 12, 1982 

Oct. 29, 1982 

Nov. 11, 1982 

Aug. 23, 1983 

Sept. 16, 1983 

Nov. 21, 1983 

May 3, 1.984 

June 7, 1984 

June 12, 1984 

June 22, 1984 

July 2, 1984 

The divorce decree was filed. 

-- The 1980 motion. The wife filed 

motions to amend the findings (Rule 

52) and to have a new trial (Rule 

59). 

The District Court denied the wife's 

June 1.0, 1980 motions as untimely. 

The wife appealed to this Court. 

This Court reversed the District 

Court based on Rule 6(e) of 

M.R.Civ.P. 

I 

The wife moved. for a hearing on 

her June 10, 1980 motions. The 

husband moved to vacate based on 

Rule 59 (d) . 

The District Court denied the 

husband's August 10, 1982 motion. 

The husband appealed the District 

Court's October 12, 1982 ruling to 

this court. 

The wife filed a motion to dismiss 

the husband's appeal. 

The Supreme Court dismissed the 

husband's appeal. 

The husband answered interrogatories. 

The husband filed consent to the 

wife's June 10, 1980 motion to amend 

findings and urged against her 

motion for a new trial. 

- The May 1984 motion. The wife filed 

an amended motion to amend the 

findings and have a new trial. 

The District Court amended the 

Divorce Decree to reflect the 

changed findings sought June 10, 

1980. 

Service of notice of entry of an 

amended judgment. 

--- The June 1984 motion. The wife 

filed motions to amend the June 7, 

1-984 decree and have a new trial. 

A hearing on the wife's June 22, 

1984 motion was set for this date 

but was continued. 
July 19, 1984 The District Court vacated the 

hearing. 

July 35, 1984 The wife moved to amend her 

June 22, 1-984 motion. 

August 1, 1984 The June 22, 1984 

motion was deemed denied. 

Aug. 23, 1984 The wife appealed to this Court. 

Issues 

The husband raised three procedural issues, which he 

argues bar this Court from reaching the merits of the wife's 

appeal: 

1. This appeal is too late and should be dismissed 

because the June 1984 motion did. not toll the 30 days for 

appeal. 

2. On June 7, 1982, when this Court remitted the 

District Court's order denying the 1980 motion, Rule 59(d) 

time limits began to run. 

3. The Montana Rules of Civil Procedure do not allow 

amending a Rule 52 motion to amend findings of facts or a 

Rule 59 motion for a new trial. 

Because, as discussed below, we agree that the Montana 

Rules of Civil Procedure do not allow amending Rule 52 and 

Rule 59 motions after the time allowed for filing the 

original motion we do not reach the issues raised on May 3, 

1984, but two issues raised in the 1980 motion relating to 

the 1980 decree are considered: 

1) When shoul-d interest begin to accrue on the 

retroactive lump-sum payment of the maintenance and child 

support increase? From June 10, 1980 forward, or from 

November 21, 1983 when the husband consented to the 

modification, or from June 12, 1984 when the decree was 

amended? 
2) Was $2,500 in attorney fees to the wife an 

unreasonably low award? 

Procedural Issue 1. -- Is this appeal timely? 

On June 22, 1984, after entry of the June 7, 1984 

amended divorce decree, the wife made two post-judgment 

motions--a Rule 52 motion to amend findings of fact and a 

Rule 59 motion for a new trial. These are the June 1984 

motions. In Winn v. Winn (Mont. 1982), 651 P.2d 51, 39 

St.Rep. 1831, this Court held that the Rule 59(d) time limits 

also apply to Rule 52 motions. Rule 59(d) was changed in 

October, 1984 but the prior rule a.pplies to this case. 

These motions have short time limits because they toll 

the appeal process. Under the old 59 (d) , after service of 

notice of entry of judgment a party had ten days to serve a 

Rule 52 or 59 motion. A district court had to notice a 

hearing within ten days of the motion but the hearing could 

be continued for up to 30 days. The district court had to 

rule within 15 days of the hearing or the motion was deemed 

denied. The motion was also deemed denied if no hearing was 

held within ten days of the motion or, if continued, within 

30 days from the continuance. Winn page 54. The moving 

party then had 30 days to appeal. 

Applying those rules this appeal is timely. After June 

22, 1984, computing 10 days per Rule 6, the District Court 

could have scheduled. a hearing up to July 2, 1984 and did 

so. The Court could have continued the hearing until August 

1, 1984; it continued the hearing to July 26, 1984 but 

vacated that hearing date on July 19, 1984. On August 1, not 

July 19, 1984, the motion was deemed denied and the wife had 

30 days in which to appeal. This appeal is timely because 

August 23, 1984 was within 30 days of the denial. of the 
motion. As discussed below, the May 1984 motions were not 

timely, but that goes to the merits, not the timeliness, of 

this appeal. 

Procedural Issue - 2. -- Did Rule 59(d) time limits begin - to 

------ run June 7, 1982 when the wife's 1980 motions were remitted? 

The husband raises this issue but it was decided in 

cause number 82-452 by an order from this Court dismissing 

the husband" appeal and fining him for delay. The husband 

contends the Court never reached the merits but the order 

stated "The Court finds that the appeal is without 

substantial or reasonable grounds, and apparently for 

purposes of delay." 

Procedural Issue 3. May the wife amend --- her Rule 59 

Motion ---- or her Rule 52 motion? 

Generally, motions to amend motions are only allowed 

during the time the original motion may be made. Situations 

may arise where justice requires that a party be allowed to 

amend a motion for a new trial but this is not one of them. 

The wife made her May 1984 motion to amend. her June 10, 1980 

motion after the husband consented to her original motion to 

amend. The May 1984 motion was actually an effort to retry 

the divorce property settlement on new issues. 

-- Rule 59 Motions 

Montana Rule 59(a) differs from Federal Rule 59 because 

it states " . . . A motion for a new trial shall state with 

particularity the grounds therefor, it not being sufficient 

merely to set forth the statutory grounds, -- but the motion may 

amended, upon reasonable notice, to and including the 

-- time of hearing the motion." This language results from 

Halsey v. Uithof (1975), 166 Mont. 319, 532 P.2d 686, in 

which plaintiff's motion for a new trial was granted and 
defendant appealed because the motion merely recited the 

statutory grounds for new trial in a bench trial. The court 

agreed that the motion must state the particular grounds for 

new trial, not just statutory language, but allowed the 

motion to be amended. 

In State court, because of the unique language in 

Montana's rule, a Rule 59 motion can be amended up to the 

time of a hearing to state a particular reason why a new 

trial should be granted, but that is not the situation here. 

The wife has never stated her grounds for a new trial or 

added additional grounds and her May 1984 motion was not an 

effort to do so. 

Rule 52 Motions 

The Montana rules say nothing about amending Rule 5% 

motions to amend findings of fact. No amendment can be made 

after expiration of the ten day period for making the 

original motion because there is no statutory basis for 

amending a Rule 52 motion. This analysis is supported by 

VL5A Moore's Federal Practice T 52.11[11 at 52-192 states: 

"Rule 6 (b) , which provides for the enlargement of 

time periods, originally stated that the court 

could not enlarge the time periods in Rule 59, but 

contained no express limitation - on the ten-day time 

period in rule 52(b). In Leishman v. Associated 

Wholesale Electric Co., the Supreme court held that 

Rule 6(b) allowed the district court to enlarge the 

time to make a motion for amended findings and 

judgment beyond the ten-day period of Rule 52 (b) . However, the Leishman rule was obviated by the 1946 

amendment to Rule 6(b), which states that the court 

may not extend the time for taking any action under 

Rules 50(b), 52(b), and (b), (d) and (el. Since a 

timely motion under Rule 52 (b) operates to destroy 

the finality of a judgment, just as do 

timely motions under Rules 59 and 50(b), the 1946 

amendment to Rule 6 (b) conformed Rules 52 and 59. 

Thus, in the interest of promoting the fina.lity of 

judgments, it is now the rule that the ten-day time 

period of R.ule 52 (b) is not subject to 

enlargement." 
Moore is referring to extending the ten day time period 

to file the original motion but the same logic precludes 

allowing amendments to motions after it would be too late to 

file the original motion. 

The Ma-y 1984 motion is a procedural attempt to 

relitigate the property and maintenance award with new 

issues. It was not the intent of Rules 52 or 59 to allow a 

party to inject a new issue after judgment. Entertaining the 

wife's May 1984 motion would allow a post-judgment motion to 

suspend the finality of a judgment from June 10, 1980 to June 

7, 1.984. This conflicts with two important considerations 

regarding post-judgment motions--a judgment should be a 

prompt, final resolution of a dispute and disputes should be 

resolved on their merits. 

However, as discussed. above, this is a timely appeal of 

the District Court's June 7, 1984 amended divorce decree 

granting the June 10, 1980 motion to amend findings. The 

issues relating to 1980 can be considered. 

Issue 1--Interest - on Retroactive payment - of child support and 

maintenance. 

The 1980 divorce decree awarded the wife maintenance of 

$900 per month. In her 1980 motion she sought maintenance of 

$1,250 until January 1, 1986, $625 per month until June 1, 

1987 and $500 per month until remarriage or court order. The 

husband consented to this in November of 1983 and it was 

decreed by the court in June 1984. The husband also 

consented to child support of $250 per child per month, a $50 

increase. The District Court made both increases prospective 

from June 1984. The wife sought retroactive application. 

Retroactive application amounted to $17,150 in maintenance 

and $6,650 in child support. 
The husband contended throughout the appeal process that 

the 1984 amended decree did not apply from the date of the 

wife's 1980 motion. During oral argument to this Court, the 

husband conceded that the 1984 decree relates back to 1980 

therefore the wife is entitled to $17,150 in maintenance and 

$6,650 in back child support. The wife incurred the expense 

of appeal to obtain this eleventh hour concession. 

If a judgment is effective from the entry date and any 

changes to that judgment relate back to that date, it follows 

that interest is assessed from the date of judgment. In Re 

the Marriage of Knudson (Mont. 1981), 622 P.2d 1025, 38 

St.Rep. 154, interest was awarded from the date of judgment. 

A husband had limited his divorce appeal to a portion of the 

decree and argued that his former wife could have executed on 

the other portion. This Court stated, "Once a person is 

liable for a money judgment, and payment is not made, the 

person entitled to the judgment is further entitled to a fair 

rate of interest." Pg. 1027. In this case the question is 

when was the husband liable for the increased child support 

and maintenance because interest accrues from that point. 

The wife sought the increa-se in June 1980. At that time 

she attempted to establish that these increased amounts were 

her current needs. The husband.'^ consent to the retroactive 

payment makes it unnecessary for this Court to consider the 

merits of the wife's request for modification; the husband's 

consent indicates that the June 10, 1980 decree incorrectly 

determined the amount of necessary child support and 

maintenance. While forced to subsist on the inadequate 

awards, the wife immediately sought to correct them. 

Unfortunately this took approximately four years. During 

this time the husband had use of the money. The 1983 consent 
and the 1984 amended. decree are corrections of the 1980 

judgment that establish the husband's correct liability from 

1980 forward. The wife should receive interest from the time 

the husband was correctly liable for the amount--June 10, 

1980. 

Issue 2--Attorney Fees. 

The District Court awarded the wife $2,500 in attorney 

fees although she submitted an affidavit that her actual fees 

were $13,283. The wife contends the District Court acted 

arbitrarily and abused its discretion because the $2,500 

award is not supported by su.bstantia1 evidence. She argues 

she is entitled to a higher attorney fee award because the 

two prior appeals in the case "were necessitated by the 

actions of Mr. Wilson'' and because the husband's financial 

resources are much greater. The husband responds that the 

District Court erred in awarding the wife any attorney fees. 

We agree with the District Court that the wife is 

entitled to attorney fees. Section 40-4-110, MCA, provides 

that a district court, after considering the financial 

resources of both parties, may order one party to pay a 

reasonable amount to the other party for attorney fees 

including sums for legal services rendered after entry of 

judgment. In this case there is substantial evidence that 

the husband's financial resources far exceed the wife's and 

an award of attorney fees is necessary. The District Court 

also determined that attorney fees should include the cost of 

the various appeals to this Court. We agree and include the 

cost of this appeal. In Re the Marriage of Grace (Mont. 

1982), 643 P.2d 1188, 1192, 39 St.Rep. 791, 795. 

The District Court erred in calculating $2,500 as the 

amount of the wife's attorney fees. This is not supported by 
substantial evidence. We remand for a hearing to determine 

an adequate attorney fees. That should include the wife's 

costs for appeals, including this appeal. 

Except as ordered to be modified herein, the judgment of 

the District Court concerning post-judgment motions is 

affirmed. The cause is remanded to the District Court for 

further proceedings in accordance with this opinion. 

We Concur: ," 

Chief Justice 

- 

istrict Judge, sitting for Justice 

John C. ~arrison,/ 

Judge, sitting for Justice L. C.