No. 92-518 IN THE SUPREME COURT OF THE STATE OF MONTANA

IN RE THE MARRIAGE OF CAROL L. MIKESELL, Petitioner and Respondent, and LAURENCE R. MIKESELL, Respondent and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable John S. Henson, Judge presiding.

COUNSEL OF RECORD: For Appellant: Terry G. Sehestedt, Attorney at Law, Missoula, Montana For Respondent: Clinton Kammerer, Attorney at Law Missoula, Montana

Filed: Submitted on Briefs: February 4, 1993 Decided: April 5, 1993~ustice William E. Hunt, Sr., delivered the opinion of the Court. Appellant Laurence R. Mikesell appeals a judgment entered by the District Court of the Fourth Judicial District, Missoula County, denying his motion to set aside a default judgment. We affirm. The issue is: Did the District Court err in denying Laurence's motion to set aside the default judgment? The parties were married in December 1965. On July 2, 1991, respondent Carol Mikesell petitioned the court for dissolution of the marriage. Laurencewas served with a copy of the petition and

summons on July 22, 1991,but failed to answer or appear in anyway in response to the petition. On October 22, 1991, a default judgment was entered against Laurence. On December 19, 1991, he moved to set aside the default, and Carol responded with a motion to dismiss on December 30, 1991. On February 24, 1992, the court denied Laurence's request to set aside the default, and it is from that order that Laurence appeals. Did the District Court err in denying Laurence's motion to set aside the default judgment? Our standard of review of a trial court's ruling on a motion to set aside a default judgment is abuse of discretion. Blume v. Metropolitan Life InsuranceCo. (1990), 242 Mont. 465, 791 P.2d 784

(citing Lords v. Newman (1984), 212 Mont. 359, 364, 688 P.2d 290, 293, wherein we said that "[n]o great abuse of discretion need be shown to warrant reversal.") 2Rule 55(c)

## , M.R.Civ.P. 

### , states that 

## "[f]or good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b)

# ." In

# m,we stated: In order to justify the district court in granting the motion [to set aside a default judgment], the defendant

[is] required to show: (a) That he proceeded with diligence; (b) his excusable neglect; (c) that the judgment, if permitted to stand, will affect him injuriously, and that he has a defense to plaintiff's cause of action upon the merits. Blume 791 P.2d at 786. I In 

# m,the defendant produced evidence to support its motion to set aside the default judgment. In that case, the summons,complaint,and documents were received indefendant'smail room, but were lost before anyone in authority saw them. The defendant produced several supporting affidavits to show that no
onehad knowledge of the service. This Court emphasized that "upon learning of thedefault judgment against it,Xetropolitanproceeded with the utmost diligence." 

# m,791 P.2d at 786. In that case, this Court held that the district court abused its discretion in refusing to vacate the default judgment because "[tlhe evidence produced by Metropolitan 

# . . . demonstrates that its failure to appear was not due to any inexcusable neglect or disrepect for the court or judicial process.'@ 

# m,791 P.2d at 787. Here, Laurence showeddisrespect forthe judicial processwhen he completely ignored the petition and summons that he received on July 22, 1991, and even thoughhe claimed that he attempted tohirean attorney upon receipt of the petition, acknowledged that he failed to pay him a retainer. He was not even able to recall the name of the attorney. He made no attempt to enter his appearance individually in person, or by phone or letter. Laurence now claims that the default judgnent should be vacated on the grounds that Carol made fraudulent misrepresentations to the court. Rule 60(b), M.R.Civ.P., states: Onmotion and upon such terms as are just, the courtmay relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons 

# . . . (3) fraud (whetherheretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party 

# . . . . 11 The alleged misrepresentations were concerning Laurence's salary, Carolissalary, the child's age and academic status, the proceeds from Laurence's van, Carol's right to life insurance paid by Laurence, and the value of items of machinery and other property. These allegations are not relevant to the issue of setting aside the default judgment. In this case, we hold there was no abuse of discretion. We affirm.

We concur:April5, 1993 CERTIFICATEOFSERVICE Ihereby certify that the followingorderwas sentby United States mail, prepaid, to thefollowing named: TerryG.Sehestedt Attorney atLaw P.O. Box 8281 Missoula, MT 59807 ClintonH Kammerer KammererLawOffices 101E.Broadway, Ste.200 Missoula, MT 59802 EDSMITH CLERKOFTHESUPREMECOURT STATEOFMONTaNA