No. 84-435 INTHE SUPREME COURT OF THE STATE OF MONTANA 1985

INRE THE MARRIAGE OF KEMP WILSON,Petitioner and Respondent,

-vsBETTY L. WILSON

## , Respondent and Appellant.

APPEAL FROM: DistrictCourt of the Thirteenth Judicial District, In and for theCounty 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: 

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### iggS

-- ClerkMr. Justice John C. Sheehy delivered. the Opinion of the Court.

This is an appealby BettyWilson,hereinafter thewife, 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. ProceduralBackground Thehusband filed for divorce on September 7, 1979. The divorce decreewas 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 theMay 1984motion. 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 amotion to amend the findings of fact and a motion for a new trial. On July 25, 1984, she attempted to amend the June 22, 1984motion. These motions
were deemed denied and this appeal followed. For clarity thesemotions are referred to as theJune 1984motion. The relevant proceduralhistory of this case is: Sept. 7, 1979 Thehusband filed fordivorce.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 Thedivorce decreewas filed. The 1980 motion. 

### -- The wife filed motions to amend the findings (Rule 52) and to have a new trial (Rule 59). TheDistrictCourtdenied the wife's June 1.0, 1980 motions as untimely. The wife appealed to this Court. This Court reversed the District Courtbased 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 DistrictCourtdenied 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'sappeal. The Supreme Court dismissed the husband'sappeal. The husband answered interrogatories. The husband filed consent to the wife's June 10, 1980motion to amend findingsand urged against her motion for anew trial. TheMay 1984motion. Thewife filed 

### - an amended motion to amend the findingsandhave anew trial. TheDistrict Courtamended the DivorceDecree 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 butwas continued.July 19, 1984 TheDistrict Courtvacated the hearing. July 35, 1984 Thewifemoved to amend her June 22, 1-984motion. August 1, 1984 TheJune 22, 1984 motionwas 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 themerits of thewife'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 limitsbegan 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 59motion 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 1980decree 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 Courtheld that the Rule 59(d) time limits also apply to Rule 52 motions. Rule 59(d) was changed in October, 1984 but theprior rulea.ppliesto 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. Themotion was also deemed denied if no hearingwas held within ten days of themotion or, if continued,within 30 days from the continuance. Winn page 54. The moving party thenhad 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 untilAugust 1, 1984; it continued the hearing to July 26, 1984 but vacated that hearing date onJuly 19, 1984. On August 1,not July 19, 1984,themotion was deemed denied and thewife had 30 days in which to appeal. This appeal is timely because August 23, 1984 was within 30 days of the denial.of themotion. 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, 1982when 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 ofdelay." the wife amend her Rule 59 Procedural Issue 3. May --- Motion or her Rule 52motion? 

### ---- 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. Thewife made her May 1984 motion to amend.her June 10, 1980 motion after the husband consented toher original motion to amend. The May 1984motion was actually an effort to retry the divorceproperty 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 statewith particularity the grounds therefor, it not being sufficient merely to set forth the statutorygrounds, 

### -- but themotion 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 anddefendant appealed because the motion merely recited the statutory grounds fornew 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 situationhere. The wife has never stated her grounds for a new trial or added additional grounds and her May 1984motion was not an effort to do so. Rule 52 Motions The Montana rules say nothing about amending Rule 5% motions to amend findingsof 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 limitationon the ten-day time
- period in rule 52(b). In Leishman v. Associated Wholesale Electric Co., the Supreme courtheld 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 rulewas obviatedby the 1946 amendment to Rule 6(b),which states that the court may notextend the time for takingany 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 timelymotions 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.lityof 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 timeperiod to file the original motion but the same logic precludes allowing amendments tomotions after itwould be too late to file the originalmotion. 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 injectanew issue after judgment. Entertaining the wife's May 1984motion would allow a post-judgment motion to suspend the finalityof a judgment fromJune 10,1980 toJune 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 theirmerits. 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 canbe considered. Issue 1--Interest

### - on Retroactive payment 

### - of child supportand maintenance. The 1980 divorce decree awarded thewifemaintenance of $900per month. Inher 1980motion she soughtmaintenance of $1,250 until January 1, 1986, $625 per month until June 1, 1987and $500per month until remarriageor courtorder. 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 supportof $250 per child per month, a $50 increase. The District Courtmade 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.Thehusband contended throughoutthe appeal process that the 1984 amended decree did not apply from the date of the wife's 1980motion. During oral argument to this Court, the husband conceded that the 1984 decree relates back to 1980 therefore thewife is entitled to $17,150 inmaintenance and $6,650 in back child support. The wife incurred the expense of appeal to obtain this eleventhhour concession. If a judgment is effective from the entry date and any changes to that judgment relateback 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, interestwas awarded from the date of judgment. A husband had limited his divorce appeal to a portion of the decree and argued thathis former wife couldhave 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 furtherentitled 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. Thewife soughtthe increa-sein June 1980. At that time she attempted to establish that these increased amountswere 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 thehusbandhad use of themoney. The 1983 consentand the 1984 amended.decree are corrections of the 1980 judgment that establish the husband's correct liability from 1980 forward. Thewife should receive interest from the time the husband was correctly liable for the amount--June 10, 1980. Issue 2--AttorneyFees. The District Court awarded the wife $2,500 in attorney fees although she submitted an affidavit thather 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.bstantia1evidence. 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 thatattorney fees should includethe costof the various appeals to this Court. We agree and include the cost of this appeal. In Re the Marriage of Grace (Mont. 1982), 643P.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 supportedbysubstantial evidence. We remand for a hearing to determine
an adequate attorney fees. That should include the wife's costs forappeals, including this appeal. Except as ordered to be modified herein,the judgmentof 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: 

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Chief Justice

-

istrict Judge, sitting for Justice JohnC. ~arrison,/

Judge, sitting for Justice L. C.