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. Laurence was served with a copy of the petition and 

summons on July 22, 1991, but failed to answer or appear in any way 

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 Insurance Co. (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.") 

2 
Rule 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. 

I Blume 791 P.2d at 786. 

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 in defendant's mail 

room, but were lost before anyone in authority saw them. The 

defendant produced several supporting affidavits to show that no 

one had knowledge of the service. This Court emphasized that "upon 

learning of the default judgment against it, Xetropolitan proceeded 

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 showed disrespect forthe judicial process when 

he completely ignored the petition and summons that he received on 

July 22, 1991, and even though he claimed that he attempted to hire 
an 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: 

On motion and upon such terms as are just, the court may 

relieve a party or a party's legal representative from a 

final judgment, order, or proceeding for the following 

reasons . . . (3) fraud (whether heretofore denominated 

intrinsic or extrinsic), misrepresentation, or other 

misconduct of an adverse party . . . . 11 

The alleged misrepresentations were concerning Laurence's salary, 

Carolis salary, 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: 

April 5, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Terry G. Sehestedt 

Attorney at Law 

P.O. Box 8281 

Missoula, MT 59807 

Clinton H Kammerer 

Kammerer Law Offices 

101 E. Broadway, Ste. 200 

Missoula, MT 59802 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTaNA