No. 96-401 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

IN RE THE MARRIAGE OF 

MICHAEL JOSEPH DOYLE, 

Petitioner and Respondent, 

and 

JANICE LOUISE DOYLE, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Twenty-first Judicial District, 

In and for the County of Ravalli, 

The Honorable Jeffrey H. Lanyton, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Michael Sol; Sol & Wolfe, Missoula, Montana 

For Respondent: 

Dare1 Graves, Attorney at Law, Hamilton, Montana 

Filed: 

Submitted on Briefs: November 14, 1996 

Decided: December 31, 1996 
Justice W. William Leaphart delivered the Opinion of the Court. 

Appellant, Janice Louise Doyle (Janice), appeals from the 

decision of the Twenty-first Judicial District Court denying her 

motion to set aside the property settlement agreement she entered 

into with Michael Joseph Doyle (Michael). We affirm in part, 

reverse in part, and remand for rehearing. 

We restate the issues as follows: 

1.) Did the District Court err in denying Janice's motion to 

set aside the parties' 1993 Property Settlement Agreement 

because the motion was not filed within 60 days of the 

final Decree? 

2) Did the District Court err by awarding attorney fees 

without first conducting a hearing? 

BACKGROUND 

Michael and Janice were married in 1964 and their marriage was 

dissolved in 1993. During the marriage, Michael was employed as a 

rancher while Janice worked as a bank teller, housewife, 

cosmetologist, and helped on the ranch on a daily basis. At the 

time of the dissolution, Michael and Janice were 50 and 48 years 

old, respectively. 

In 1993, Michael and Janice executed a Property Settlement and 

Separation Agreement (Agreement). The Agreement was drafted by 

Michael's attorney. Despite repeated suggestions by Michael's 

counsel, both orally and in writing, that she obtain legal advice, 

Janice chose not to seek legal counsel or appear at the hearing to 

approve the Agreement. Under the Agreement Janice received 110 

acres of bare land, her car, various personal belongings and was 

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assigned over $40,000 in debt. In return, Michael received a total 

of 560 acres of land, all of the machinery and equipment, the 

cattle heard, a $19,000 Treasury certificate and was assigned 

$35,000 in debt. The Agreement expressly allows modification only 

upon written consent or upon a finding of unconscionability and 

requires the district court to award attorney fees, as a cost of 

suit, to the successful party in any action to "enforce, modify, or 

interpret" the Agreement. The District Court approved the 

Agreement, incorporated the Agreement into the decree, specifically 

ordered each party to perform the Agreement, and granted final 

dissolution of the marriage. 

Nearly two years after the District Court's 1993 Judgment, 

Janice filed a motion to set aside and vacate the decree of 

dissolution and rescind the Agreement on grounds that Michael made 

misrepresentations as to values of the property, how much of 

Janice's property was under the flood plain, and whether his 

property was encumbered by a life estate. Although the motion was 

vague regarding its procedural grounds, it was treated as an 

independent action pursuant to the residual clause of Rule 60(b), 

M.R.Civ.P. After Michael and Janice filed briefs and affidavits in 

support of their arguments, the District Court entered its Opinion 

and Order denying Janice's motion. In addition to denying Janice's 

motion, the District Court, without first conducting a hearing, 

awarded Michael attorney fees in excess of $4,400. Janice appeals 

both the District Court's decision denying her motion to set aside 

and vacate the decree of dissolution and rescind the Agreement, and 

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the District Court's decision to award attorney fees without 

conducting a hearing. 

STANDARD OF REVIEW 

Both issues before this Court deal with the District Court's 

conclusions of law. The standard of review of a district court's 

conclusions of law is whether the court's interpretation of the law 

is correct. Carbon County v. Union Reserve Coal Co. (1995), 271 

Mont. 459, 469, 898 P.2d 680, 686; see also Kreger v. Francis 

(1995) I 271 Mont. 444, 898 P.2d 672. 

DISCUSSION 

1) Did the District Court err in denying Janice's motion to 

set aside the parties' 1993 Property Settlement Agreement 

because the motion was not filed within 60 days of the 

final Decree? 

Since Janice's motion was filed more than 60 days after entry 

of the decree, grounds one through three of Rule 60(b) are 

precluded from consideration, and grounds four through six do not 

pertain to her motion. Accordingly, the District Court analyzed 

the motion under the residual clause of Rule 60(b). The residual 

clause of Rule 60(b), M.R.Civ.P., provides: 

This rule does not limit the power of a court to 

entertain an independent action to relieve a party from 

a judgment, order, or proceeding, or to grant relief to 

a defendant not actually personally notified as may be 

required by law, or to set aside a judgment for fraud 

upon the court. 

This residual clause allows for three separate avenues of relief 

including: lack of personal notification, fraud upon the court, 

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and an independent action for extrinsic fraud. See Rule 60(b), 

M.R.CiXJ.P.; In re Marriage of Miller (1995), 273 Mont. 286, 291, 

902 P.2d 1019, 1022 (citing Salway v. Arkava (1985), 215 Mont. 135, 

140, 695 P.2d 1302, 1305). The District Court held that Janice was 

not entitled to relief under the residual clause of Rule 60(b), 

M.R.Civ.P. We agree. 

Janice argues that, under a broad application of Rule 60(b), 

M.R.Civ.P., misrepresentations on the part of Michael qualify 

Janice for relief under the residual clause. Since lack of 

personal notification was not raised by Janice, we will only 

address whether Michael's actions constituted a fraud upon the 

court or whether Janice has an independent action for extrinsic 

fraud. 

Fraud upon the court only involves that species of fraud which 

subverts or attempts to subvert the integrity of the court itself, 

or fraud perpetrated by officers of the court so that the judicial 

machinery cannot perform in an impartial manner. Filler v. 

Richland County (1991), 247 Mont. 285, 289, 806 P.2d 537, 539. 

Fraud upon the court is limited to only the most egregious conduct, 

including bribery of a judge or member of the jury; fabrication of 

evidence in which an attorney has been implicated; or the 

employment of counsel to influence the court. Filler, 806 P.2d at 

539. This Court has repeatedly held that fraud between the parties 

is not fraud upon the court. Marriage of Miller, 902 P.2d at 1022; 

Wise v. Nirider (1993), 261 Mont. 310, 316, 862 P.2d 1128, 1132; 

Traders State Bank of Poplar v. Mann (1993), 258 Mont. 226, 236, 

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852 P.2d 604, 610. Even if Janice's claims that Michael 

misrepresented resale values and facts as to flood plains are true, 

that cannot be characterized as a fraud upon the court. 

Finally, none of Michael's actions can be characterized as 

extrinsic fraud. Montana follows the general rule that the fraud 

must be extrinsic, as opposed to intrinsic, to support an 

independent action for fraud under the residual clause of Rule 

60 (b) , M.R.Civ.P. Marriaae of Miller, 902 P.2d at 1022 (citing 

Filler, 806 P.2d at 539). Extrinsic fraud has been defined as some 

intentional act or conduct by which the prevailing party has 

prevented the unsuccessful party from having a fair submission of 

the controversy. Marriase of Miller, 902 P.2d at 1022 (citing 

Salwav, 695 P.2d at 1306). Extrinsic fraud is collateral to the 

matters tried by the court, but does not include fraud in the 

matters on which the judgment was rendered. See Salwav, 695 P.2d 

at 1306 (citing Hall v. Hall (1924), 70 Mont. 460, 467, 226 P.2d 

469, 471). In Ellis V. Schwank (Wash. 19501, 223 P.Zd 448, the 

Washington State Supreme Court found extrinsic fraud was present 

where a son of the plaintiff's alleged father had destroyed written 

statements and wills acknowledging plaintiff was his daughter. 

Ellis, 223 P.2d at 449. The court explained that since the son 

destroyed evidence that the father's daughter (the plaintiff) was 

also entitled to part of the father's estate, the plaintiff had 

been denied an opportunity to present at trial all of the rights 

and defenses to which she was entitled. -I Ellis 223 P.2d at 449. 

The son's actions had prevented the plaintiff from having a fair 

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submission of the controversy and were collateral to probating the 

will. 

In the instant case, Janice's claims of fraud relate to assets 

set forth in the Agreement, which, in turn, was incorporated into 

the 1993 Judgment. Although the asset values were not set forth in 

the Agreement, all assets were disclosed. Therefore, none of 

Janice's claims can be characterized as extrinsic fraud. 

Accordingly, we conclude that none of the claims set forth by 

Janice allow the 1993 Judgment 'to be set aside. we affirm the 

District Court's decision denying Janice's motion to set aside the 

1993 Judgment. 

2) Did the District Court err by awarding attorney fees 

without first conducting a hearing? 

Section 40-4-110, MCA, grants the district court discretion to 

award attorney fees and costs in certain domestic relation cases. 

In re Marriage of Malquist (1994), 266 Mont. 447, 454, 880 P.2d 

1357, 1361 (citing In re Marriage of Dzivi (1991), 247 Mont. 165, 

167-68, 805 P.2d 567, 569). Section 40-4-110, MCA, provides: 

40-4-110. Costs -- attorney's fees. The court from 

time to time, after considering the financial resources 

of both parties, may order a party to pay a reasonable 

amount for the cost to the other party of maintaining or 

defending any proceeding under chapters 1 and 4 of this 

title and for attorney's fees, including sums for legal 

services rendered and costs incurred prior to the 

commencement of the proceeding or after entry of 

judgment. The court may order that the amount be paid 

directly to the attorney, who may enforce the order in 

his name. 

In interpreting this section, this Court has required that a 

petitioning party must make a showing of necessity before the 

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district court awards attorney fees. In addition, the award must 

be reasonable and based upon competent evidence. Marriacre of 

Malauist, 880 P.2d at 1362 (citing In re Marriage of Barnard 

(1990), 241 Mont. 147, 154, 785 P.2d 1387, 1391; In re Marriage of 

Laster (1982), 197 Mont. 470, 479, 643 P.2d 597, 602; Wilson v. 

Bean (1981), 192 Mont. 426, 427-28, 628 P.2d 287, 289). Before a 

court can determine reasonableness, it must conduct a hearing 

allowing for the introduction of exhibits, oral testimony and the 

opportunity for cross-examination. Marriacre of Malauist, 880 P.2d 

at 1362 (citing Marriage of Barnard, 785 P.2d at 1391). Finally, 

an award of attorney fees will not be reversed if supported by 

substantial evidence. Marriage of Barnard, 785 P.2d at 1391-92. 

In the instant case, the District Court awarded Michael a 

total of $4,450.75 in attorney fees. In its opinion and orders 

dated October 19, 1995, and March 6, 1996, the District Court 

ordered Janice to pay Michael's reasonable attorney fees. The 

District Court ordered Michael to submit an affidavit of attorney 

fees and costs. Based solely on affidavits submitted by Michael, 

the District Court determined that a fee of $4,450.75 was 

reasonable. 

The award of attorney fees in this case was not made pursuant 

to § 40-4-110, MCA, but rather pursuant to a provision in the 

Agreement which provided: 

Should any action be commenced to enforce, modify, 

or interpret any provisions contained herein, the Court, 

as a cost of suit, shall award a reasonable attorney's 

fee to the successful party. 

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Nonetheless, we hold that an evidentiary hearing as to 

reasonableness is a prerequisite to an award of fees whether they 

be pursuant to statute or contract. A hearing allowing for the 

introduction of exhibits, oral testimony and an opportunity for 

cross-examination affords parties an opportunity to present 

competent evidence in support of their claims. Marriase of 

Malauist, 880 P.2d at 1362. Here, the District Court's failure to 

conduct such a hearing was reversible error. We remand this case 

to the District Court for a hearing on the issue of reasonable 

attorney fees. 

Accordingly, we affirm the District Court's decision denying 

Janice's motion to set aside the Property Settlement and Separation 

Agreement. We reverse the District Court's award of attorney fees, 

and remand for a hearing on that issue.