### No. 84-503 IN THE SUPREME COURT OF THE STATE OF MONTANA 1985

IN RE THEMAR.RIAGEOF 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 ThomasMcKittrick, Judgepresiding.

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$$

ClerkMr. 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 setaside? 2. Was the motion to 

### set aside the default judgment timely filedwith theDistrictCourt? 3. Was the notice of appeal tothisCourt timely filed? John and Adrienne Neneman 

### were married 

### in 1953. The Cascade County DistrictCourt entered a dissolution decree in August 1981, reserving the distribution of themarital estate for further proceedings. Trial on the distribution of propertywas 

### 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 towithdraw on July 

### 23, 1984, fixed a September 

### 11 hearing date and advised the wife toget a lawyer. The court stated: 

## "[TIhat's a long 

### timetohave these cases pending. And I thinkwhat 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 forthe record, 

## --- that date

### we have heretofore set 

### is a firm date and I 

## ------- ex~ect all~arties tobe read~ towroceed I-----* on September 11." (emphasis added) 

### - 7 After the hearingbut on that same day, opposing counsel hand delivered a notice tothe wife requiring her toappoint 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 orbefore 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 inpertinent part: "1. The

# ... [wife's] counsel

# . ..was permitted to withdraw as counsel for Petitioneron 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~ointcounsel in this cause and has

L L 

## -- 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 responsewas filed on her behalf. The court entered judgment based upon the husband's application. The notice of entry of judgmentwas 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 hearingwas 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 inpertinent 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, toappoint another attorney orappear inperson." The purpose of this statute 

### is to notify an unrepresented party that he or she 

### will be expected toappear atthe next scheduled hearing, either in person or represented by coun

### sel. 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 therepresented party can show he made a good-faith efforttonotify the unrepresented party and advise him he should substitute counsel or appear in person, and the notice also 

### sets forth - thedateof the next hearing oraction 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 toappear 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 toappear

on September 11, 1984 with orwithout counsel. A1though 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 tobe heard and states inpertinent part: 

# ".

.. If the party against whom default judgment 

### is sought has appeared in the action, he (or, ifappearing by representative, his representative) shall be served with written notice of the application forjudgment atleast 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 defaultupon theparty againstwhom thejudgment 

### is sought if he has appeared in the action. 

## --- 

## -- "When the 

# . .. [party against whom default judgment 

### is sought] has appeared either inperson orby 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 defaultjudgment. The failure of the husband to serve the requisite notice renders the order of defaultjudgment premature and voidable. See Sowerwine v. Sowerwine (1965), 145Mont. 81, 85, 399 P.2d

Rule 55(c)

## , M.R.Civ.P. allows the court for good cause shown to 

### "set aside an entryof defaultand, if a judgment by default has been entered, 

# . . . [to] set 

### it aside inaccordance 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 finaljudgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; 

# . . . (6) any other reason justifying relief from the operation of thejudgment." 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 

### limitour 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 tothe defaulting party justifies a vacation of the default judgment, the preferable view 

### is that lack of noticemay be treated asan additional oralternative ground for exercising discretion to 

### set aside a default judgment. "The preferable 

### view is that the lack of notice does not automatically entitlethe defaulting party torelief, but 

### ismerely 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, at509 (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 inexercising

### itsdiscretion. 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 directadmonition by the judge tothe 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 defaultjudgment 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 filea notice of appeal aftera motion to

### set aside a default judgment 

### isdenied orafterdenialby 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 

### timesprovided by Rule 59

# . .."
Rule 59(d)

### , M.R.Civ.P. requires that a hearing on the motion shallbe had within 10 days after 

### it has been served. Here thewife filed the motion on September 14 and the hearing was scheduled for September 17, well within the 10-day 

### limit. Rule 59(d) alsogives the court thepower 

### to continue the hearing for not to exceed 30 days. 

### Here the courtinitially continued the hearing from September 17 toOctober 

### 11 which was within the 30-day 

### limit. However, the court then continued the hearing beyond the 30-day 

### limit

### toNovember 26. As 

### a result, thewife's motion 

### tovacate 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 filedher 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 totheDistrictCourt for furtherproceedings.

We concur:



### /