No. 92-367 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

IN RE THE MARRIAGE OF 

CYNTHIA KEASTER, n/k/a DAVIS 

Petitioner, 

and 

ROBERT KEASTER, 

Respondent/Appellant, 

STATE OF MONTANA, CHILD SUPPORT 

ENFORCEMENT DIVISION, 

Relator, 

JERRY J. FLEMING, 

Intervenor/Respondent. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Thomas M. McKittrick, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Susan L. Weber, Great Falls, Montana 

For Respondent: 

James D. Elshof f, Great Falls, Montana (Fleming) ; 

John Koch, Montana Department of Revenue, Child 

Support Enforcement Division, Great Falls, Montana; 

Peggy Probasco, Child Support Enforcement Division, 

Butte, Montana 

.y=q \:& 3 , / 

i;. Submitted on Briefs: March 25, 1993 

r i :'.i 1 0 199 .. (.: . i Decided: June 10, 1993 
Justice Fred J. Weber delivered the Opinion of the Court. 

This is an appeal from a judgment entered by the Eighth 

Judicial District Court, Cascade County, denying appellant a stay 

of proceedings and a new trial. We reverse and remand. 

The only question on appeal is whether the District Court 

erred in disallowing appellant a new trial and a stay of 

proceedings based upon prior Montana case law prohibiting 

relitigation of paternity. 

This appeal involves a dissolution proceeding between Robert 

Keaster (Keaster) and Cynthia Keaster (a.k.a. Cynthia Davis, 

hereinafter, Davis). Dissolution was granted on October 3, 1990 

following Keaster's default. About a month after the dissolution 

was final, Keaster was informed that he was not the father of the 

youngest of the two Keaster children. This child shall be referred 

to as JMK. His non-paternity of JMK was proved by a subsequent 

blood test. 

Following this blood test which had been agreed to by Davis 

and Keaster, the two executed a written stipulation stating that 

Keaster was not the natural father of JMK. On April 17, 1991, 

Keaster petitioned the court for a modification in the child 

support payments he was currently paying for JMK because of his 

non-paternity. The court held a hearing on this issue and heard 

testimony from both Davis and Keaster on April 30, 1991. The court 

found that the evidence conclusively proved Keaster was not the 

natural father of JMK. The court lowered Keaster's child support 
payments in an Order for Modification of Child Support and Custody 

issued on May 16, 1991. 

Within the next several months, Cynthia applied for child 

support monies from the State of Montana. At this time she named 

the natural father of JMK. Child Support Enforcement Division 

(CSED) began pursuit of Jerry Fleming (Fleming), the alleged 

natural father, in an attempt to procure payment of child support 

for JMK. Fleming refused and on September 23, 1991, filed a motion 

to intervene in the dissolution proceedings, and a motion for 

permanent injunction. 

Fleming filed notice of his intervention with Cynthia Keaster 

and CSED. He did not notice Robert Keaster, a party to the 

dissolution. Based upon the briefs submitted by Fleming and the 

CSED, the District Court issued its Conclusions of Law on January 

10, 1992, reinstating Keasterts payment of child support for JMK. 

A copy of this order was never sent to Keaster, nor was he served 

with any notice of entry of judgment in this proceeding. 

Keaster realized what had transpired when he was again 

approached by CSED for child support payments for JMK. This 

prompted Keaster to file a motion in April of 1992, seeking a stay 

of proceedings pending a new trial pursuant to Rule 59, M.R.Civ.P. 

Keaster sought a new trial based upon the intervenor's failure to 

serve him with notice of the intervention and his subsequent loss 

of opportunity to defend against the reinstitution of child support 

for JMK. Because Keaster was never served with notice of entry of 

judgment, he argued that the time for filing motion for new trial 
had not run. The court heard arguments on these motions on May 20, 

1992, and on May 26 issued an order denying Keaster's motions. 

Keaster now appeals this denial. 

Did the District Court err in disallowing appellant a new 

trial and a stay of proceedings based upon prior Montana case law 

prohibiting relitigation of paternity? 

The denying of a new trial is within the discretion of the 

District Court and this Court will not disturb that ruling unless 

the court abused its discretion. Brockie v. Omo Construction 

(1992), 844 P.2d 61, 49 St.Rep. 1092. Here, the District Court's 

denial of a new trial was rooted in previous case law of this 

State. In the District Court's Conclusions of Law, the court 

relied on two prior Montana cases which prohibit relitigation of 

paternity once it is established. We evaluate a district court's 

conclusions of law as to whether they are correct. Steer, Inc. v. 

Dept. of Revenue (1990), 245 Mont. 470, 803 P.2d 603. we, 

therefore, consider whether the District Court relied on the 

correct precedent. 

The District Court's reinstatement of Keaster's child support 

for JMK was issued on January 10, 1992. In April 1992, Keaster 

filed a motion seeking a stay pending a new trial. Under Rule 59, 

M.R.Civ.P., a motion for new trial must be filed within ten days of 

notice of entry of judgment. The record shows that no notice of 

entry of judgment was sewed upon Keaster, and, therefore, he had 

no express date from which to determine the start of the ten day 

period. The District Court's January 10, 1992 order relies on two 
prior cases from this Court in denying Keaster a new trial. The 

court is in error in relying on these cases. 

In Butler v. Brownlee (1969), 152 Mont. 453, 451 P.2d 836, 

this Court dealt with a situation where a father had paid child 

support for several years following his dissolution and then 

protested. "More than four years later (after the dissolution) the 

husband, following attempts to collect child support from him, 

filed a "Motion for Modification of Divorce Decreew alleging that 

he 'now has satisfactory proof that the two children as noted in 

the decree are not his issue.'" Butler, 152 at 455, 451 P.2d at 

837. This husband had placed the paternity of his children in 

issue from the beainnincr of the dissolution proceedinas. The court 

considered the husband's arguments during the dissolution and 

determined paternity. The husband did not appeal. 

The District Court in Butler negated the husband's paternity 

and the mother applied for a writ of review from the Court. The 

Butler Court chose to review the proceedings and stated that: 

In our view under the circumstances disclosed here, the 

court's jurisdiction on the issue of parentage of the 

minor children became exhausted upon entry of the 

original divorce decree, and until that decree is 

reversed on appeal. or reaularly amended or vacated for 

reasons set forth in and pursuant to Rules 59 and 60. 

M.R.Civ.P., the court cannot again hear or determine the 

issue of paternity. (Emphasis added.) 

Butler, 152 Mont. at 458, 451 P.2d at 838-839 

The Butler Court made its holding specific to the facts of the 

case. Those facts clearly indicate that the father suspected that 

the children were not his during the dissolution and said so. The 

court considered his arguments, but did not agree. 
The Court stated, "But must we close our eyes to the need for 

immediate relief under the circumstances disclosed here?" Butler, 

152 Mont. at 459, 451 P.2d at 839. The Court could not close its 

eyes and, therefore, issued an original writ stating that parentage 

could not be relitigated--under the facts of that case. The Butler 

ruling is still law, where circumstances reflect the same fact 

pattern. It does not, however, control the facts we have before 

us. 

Here Davis agrees that Keaster is not the father of JMK. 

Keaster did not file his action in an attempt to avoid long 

standing child support debts, nor did he even think to bring the 

issue of paternity up during the dissolution. Like the Butler 

Court, we do not close our eyes to the circumstances presented by 

the record in this case. 

Butler was the case upon which a later Court based its 

decision. Marriage of Holland (l986), 224 Mont. 414, 730 P.2d 410. 

Holland broadened the Butler ruling considerably, although the 

underlying facts were similar. In Holland, we have a situation 

similar to that in Butler in that the Court was faced with another 

four year old dissolution in which the father was significantly 

behind in his child support and sought to have the paternity of the 

children questioned. The father in Holland, did not, however, 

bring the issue of paternity up until four years after the 

dissolution. Thus, the case is different from Butler in that the 

district court in Butler specifically considered the father's 

arguments concerning paternity at the time of the dissolution. 
In both Butler and Holland the person named in the decree as 

the father was attempting to reduce or eliminate child support 

payments after a number of years. The natural father was not 

identified in either of these cases and the mothers failed to agree 

that the parties were not the fathers of the children. In contrast 

here, as soon as he received information that he was not the 

father, Keaster petitioned, and upon a hearing, both Keaster and 

the mother, Davis, agreed he was not the father. The court then 

specifically found that he was not the father. We conclude that 

neither Butler nor Holland is binding precedent under the facts of 

this case. 

The key procedural failure in this case was the failure to 

give Keaster any notice of Fleming's intervention and the failure 

to serve notice of entry of judgment upon Keaster. Fleming claims 

he was under no obligation to notice Keaster because Keaster had 

defaulted in the original dissolution proceedings. Fleming is not 

correct. Rule 24(c), M.R.Civ.P., provides the following with 

regard to intervention. 

Procedure. A person desiring to intervene shall serve a 

motion to intervene upon the parties as provided by Rule 

5. 

In addition, Rule 5(a), M.R.Civ.P., provides the following in 

regard to service of order: 

Except as otherwise provided in these rules, every order 

required by its terms to be served . . . shall be served 

upon each of the parties. 

Under the above rules, notice of intervention was required to 

be served upon Keaster, one of the parties to the action. Fleming 
argues no service was required because of the initial default of 

Keaster. That argument disregards the dissolution modification 

proceedings which took place in this cause and in which Keaster did 

appear and secured the order of modification of child support. We 

conclude that Keaster was a party who had appeared in the 

proceeding and that Fleming was required to serve notice of 

intervention upon him. In a similar manner, because he was a 

party, we conclude that Fleming was required to serve notice of 

entry of judgment upon Keaster. 

We further conclude that because of the failure to serve 

notice of intervention and of the failure to give notice of entry 

of judgment, there was no procedural reason for the District Court 

to deny Keaster's motion for a new trial. 

We reverse the order of the District Court of January 10, 

1992, which reinstated Keasterts payment of child support for JMK. 

Having concluded that the District Court abused its discretion in 

refusing a new trial, we remand the proceedings to the District 

Court for a new trial and consideration of such matters at it 

deems appropriate in a manner consistent with this opinion. 

Reversed and remanded. 

We Concur: _sC ---- - 

June 10, 1993 

CERTIFICATE OF SERVICE 

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

named: 

SUSAN L. WEBER 

Attorney at Law 

P.O. Box 1258 

Great Falls, MT 59403 

JAMES D. ELSHOFF 

Attorney at Law 

P.O. Box 2323 

Great Falls, MT 59403 

JOHN KOCH 

Montana Department of Revenue 

Child Support Enforcement Division 

219 5th Street South, Suite D 

Great Falls, MT 59405 

ED SMITH 

CLERK OF THE SUPREME COURT 

STA OF,MONTANA 

BY: 

Depu