No. 84-503 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

IN RE THE MAR.RIAGE OF 

ADRIENNE 

Petitioner, Counter-Respondent 

and Appellant, 

and 

JOHN F. NENEJ%Ml, 

Respondent, Counter-Petitioner 

and Respondent. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Thomas McKittrick, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hartelius 6 Ferguson; Channing ,T. Hartelius, Great 

Falls, Montana 

For Respondent : 

Lawrence Anderson, Great Falls, Montana 

Submitted on Briefs: April 18, 1985 

Decided: July 25, 1985 

Filed: "' " , +&I$$ 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

The Cascade County District Court entered a default 

judgment in favor of the husband on August 31, 1984. The 

wife appeals. We reverse. 

The issues on appeal are: 

1. Should the District Court's entry of default judgment be set aside? 

2. Was the motion to set aside the default judgment 

timely filed with the District Court? 

3. Was the notice of appeal to this Court timely filed? 

John and Adrienne Neneman were married in 1953. The 

Cascade County District Court entered a dissolution decree in 

August 1981, reserving the distribution of the marital estate 

for further proceedings. Trial on the distribution of property was set for September 11, 1984. 

The wife's second attorney petitioned the court to 

withdraw and the wife attended the hearing on the petition. 

The court granted counsel permission to withdraw on July 23, 

1984, fixed a September 11 hearing date and advised the wife 

to get a lawyer. The court stated: 

" [TI hat's a long time to have these cases 

pending. And I think what I would do, if 

I were in your position, I would start 

immediately to knock on doors and find 

yourself a lawyer. And you can tell that 

lawyer we do have a September 11th date ---- -- 

and you have a lawyer by then. 

"Okay. Just for the record, --- that date we 

have heretofore ------- set is a firm date and I 

I-----* ex~ect all ~arties to be read~ to wroceed 

- on September 7 

11." (emphasis added) 

After the hearing but on that same day, opposing counsel 

hand delivered a notice to the wife requiring her to appoint 

another attorney. That notice stated: 

"TO: THE ABOVE-NAMED PETITIONER and 

COUNTER-RESPONDENT ADRIENNE M. NENEMAN 
"PURSUANT TO THE PROVISIONS of M.C.A. 

S37-61-405, the Respondent and 

Counter-Petitioner herewith gives you 

notice to appoint other counsel in this 

cause or appear in person in this cause 

on or before August 6, 1984. 

"DATED this 23 day of July, 1984." 

The husband filed a motion for default judgment, and on 

August 14, 1984, the District Court granted the motion without a hearing. The court ordered the husband's counsel to 

prepare a judgment to be entered. 

The husband's application for entry of default judgment 

stated in pertinent part: 

"1. The . . . [wife's] counsel . . . was 

permitted to withdraw as counsel for 

Petitioner on July 23, 1984. 

"2. On July 23, 1984, pursuant to the 

provisions of MCA S37-61-405, the 

Respondent and Counter-Petitioner [husband] gave the Petitioner and 

Counter-Respondent [wife] notice to 

appoint other counsel in this cause or 

appear in person in this cause on or 

before August 6, 1984. 

"3. Th.e . . . [wife] has failed to 

aw~oint L L counsel in this cause -- and has 

otherwise failed to appear in person in 

this cause on or bFfore August 6, 1984 to 

advise the Court that she intended to 

proceed without counsel in this cause." 

(emphasis added) 

No copy of this application was mailed to the wife, and no 

response was filed on her behalf. The court entered judgment 

based upon the husband's application. 

The notice of entry of judgment was filed and mailed to 

the parties on August 31, 1984. Fourteen days later on 

September 14, the wife filed a motion to set aside the default judgment. A hearing was s~t for September 17 and then 

reset for October 11, 1984. At the request of the husband's 

counsel, the court ordered the hearing continued until November 26, 1984. The wife filed a notice of appeal to this 

Court on October 24, 1984. 
Should the District Court's entry of default judgment be 

set aside? 

Section 37-61-405, MCA states in pertinent part: 

"When an attorney . . . ceases to act as 

such, a party to an action for whom he 

was acting as attorney must, before any 

further proceedings are had against him, 

be required by the adverse party, by 

written notice, to appoint another attorney or appear in person." 

The purpose of this statute is to notify an unrepresented 

party that he or she will be expected to appear at the next 

scheduled hearing, either in person or represented by counsel. This Court has stated: 

"We do not believe actual notice must be 

personally served on the unrepresented 

party opponent. But we do hold the 

represented party must make a positive 

showing he has attempted to communicate 

adequate notice to the unrepresented 

party. If the represented party can show 

he made a good-faith effort to notify the 

unrepresented party and advise him he 

should substitute counsel or appear in 

person, and the notice also sets forth - 

the date of the next hearing or action in 

the matter pending, then theyepresenta 

party will be deemed to have satisfied 

the requisites of section 93-2104, R.C.M. 

1947 [now 5 37-61-405, MCA] ." Audit 

Services v. Kraus Const., Inc. (Mont. 

1980), 615 P.2d 183, 189, 37 St.Rep. 

1225, 1232-33, quoting McPartlin v. 

Fransen (1978), 178 Mont. 178, 185, 582 

P.2d 1255, 1259 (emphasis added) . 

Although the husband's notice to the wife to appoint 

counsel required her to appear on August 6, 1984, no hearing 

or action in the matter was scheduled to take place until 

trial on September 11, 1984. Opposing counsel's notice 

should have stated that the wife would be expected to appear 

on September 11, 1984 with or without counsel. A1 though the 

husband 's petition for default judgment accurately stated 

that the wife had failed to appear in person or to appoint 
counsel on or before August 6, 1984, that date had no 

significance. 

Rule 55, M.R.Civ.P. governs default judgments. Rule 

55(b)(2), M.R.Civ.P. sets out the criteria for notice and 

opportunity to be heard and states in pertinent part: 

". . . If the party against whom default 

judgment is sought has appeared in the 

action, he (or, if appearing by representative, his representative) shall be 

served with written notice of the application for judgment at least 3 days prior 

to the hearing on such application." 

The husband asserts that the wife's failure to appear on 

August 6, 1984, negated her right to receive written notice 

of the application for default judgment. This Court has 

consistently held that Rule 55 (b) (2) , M.R.Civ.P. requires 

service of a written notice of the application for judgment 

by default upon the party against whom the judgment is sought 

--- if he has appeared -- in the action. "When the . . . [party 

against whom default judgment is sought] has appeared either 

in person or by counsel, additional duties then devolve upon 

the party entitled to the judgment." Peterson v. Montana 

Bank of Bozeman, N.A. (Mont. 1984), 687 P.2d 673, 677, 41 

The wife first appeared in this action when she filed 

the petition for dissolution of marriage in 1980. Since the 

wife has appeared, Rule 55(b) (2), M.R.Civ.P. requires 3 days 

written notice of the husband's motion for default judgment. 

The failure of the husband to serve the requisite notice 

renders the order of default judgment premature and voidable. 

See Sowerwine v. Sowerwine (1965), 145 Mont. 81, 85, 399 P.2d 

Rule 55 (c) , M.R.Civ.P. allows the court for good cause 

shown to "set aside an entry of default and, if a judgment by 

default has been entered, . . . [to] set it aside in 
accordance with Rule 60 (b) ." Rule 60(b), M.R.Civ.P. in 

pertinent part states: 

"On motion . . . the court may relieve a 

party . . . from a final judgment, order, 

or proceeding for the following reasons: 

(1) mistake, inadvertence, surprise, or 

excusable neglect; . . . (6) any other 

reason justifying relief from the operation of the judgment." 

It is a close question whether the facts are sufficient to 

justify a finding of mistake, inadvertence or surprise under 

Rule 60 (b) (1) , M.R.Civ.P. FJe therefore limit our holding to 

Rule 60(b) (6), M.R.Civ.P. 

Appellant argues that the entry of a voidab1.e judgment 

should in itself be sufficient to justify relief from the 

default judgment. Although some cases conclude that a failure to give notice to the defaulting party justifies a vacation of the default judgment, the preferable view is that 

lack of notice may be treated as an additional or alternative 

ground for exercising discretion to set aside a default 

judgment. 

"The preferable view is that the lack of 

notice does not automatically entitle the 

defaulting party to relief, but is merely 

one consideration to be weighed by the 

court in exercising its discretion in 

determining a Rule 55 (c) motion. " 10 C. 

Wright, A. Miller & M. Kane, Federal 

Practice and Procedure 5 2695, at 509 (2d 

ed. 1983). 

We hold that. lack of notice does not automatically 

entitle a party to relief, but is a consideration to be 

weighed by the court in exercising its discretion. This view 

is consistent with our holdings in Sikorski & Sons, Inc. v. 

Sikorski (1973), 162 Mont. 442, 512 P.2d 1147, and Williams 

v. Superior Homes, Inc. (1966), 148 Mont. 38, 417 P.2d 92. 

The facts here show a request to set aside the default 

judgment within 14 days of entry. In addition, we have the 

setting of a firm trial date of September 11 with a direct 
admonition by the judge to the party herself that she should 

have a lawyer by that date. Taking all of the facts into 

consideration, we conclude that the circumstances of this 

case justify setting aside the default judgment under Rule 

60 (b) (6), M.R.Civ.P. 

I1 

Was the motion to set aside the default judgment timely 

filed with the District Court? 

Under Rule 60 (b) (6) , M.R.Civ.P., the wife's motion to 

set aside the default judgment must be made within a reasonable time. Notice of entry of default judgment was mailed on 

August 31, 1984. On September 14, 1984, the wife filed her 

motion to set aside the default judgment. Clearly this is 

within a reasonable time as contemplated in the rule. FJe 

conclude that the motion to set aside the default judgment 

was timely filed. 

111 

Was the notice of appeal to this Court timely filed? 

Under Rule 5, M.R.App.Civ.P., a party has 30 days to 

file a notice of appeal after a motion to set aside a default 

judgment is denied or after denial by operation of law. 

As noted above, the motion to set aside the default 

judgment was filed on September 14, 1984, under Rules 55(c) & 

60 (b) , M.R.Civ.P. Rule 60 (c) , M.R.Civ.P. provides that 

motions filed pursuant to Rule 60 (b) "shall be heard and 

determined within the times provided by Rule 59 . . ." 

Rule 59 (d) , M.R.Civ.P. requires that a hearing on the 

motion shall be had within 10 days after it has been served. 

Here the wife filed the motion on September 14 and the hearing was scheduled for September 17, well within the 10-day 

limit. Rule 59(d) also gives the court the power to continue 

the hearing for not to exceed 30 days. Here the court 
initially continued the hearing from September 17 to October 

11 which was within the 30-day limit. However, the court 

then continued the hearing beyond the 30-day limit to November 26. As a result, the wife's motion to vacate the default 

judgment was deemed denied on October 17, 1984. See 

Wallinder 17. Lagerquist (Mont. 1982), 653 P.2d 840, 39 

St-Rep. 2063. The wife filed her notice of appeal on October 

24, 1984, well within the 30-day period under Rule 5, 

M.R.App.Civ.P. We invite attention to the changes made in 

Rule 59 (d) , M.R.Civ.P., which became effective October 9, 

1984. 

We conclude that the notice of appeal was timely filed. 

We set aside the order of default judgment and remand the 

cause to the District Court for further proceedings. 

We concur: 

/