### No. 81-304 1N THE SUPREMECOURT 

### OF THE STATE OF 

### MONTANA 1982

IN 

### RE 

### THEMARRIAGE OF PATRICIA

### A. REX, Plaintiff and Respondent, and CALVINT. REX, Defendantand Appellant.

Appeal from: District Court of the FourthJudicial District, Inand for the County ofMissoula Honorable James

### B. Wheelis,Judgepresidinq. Counsel of Record: ForAppellant: Morales, Volinkaty & 

### Harr,Missoula,Montana For Respondent: 

### Anthony Keast,Kissoula,Montana

Submitted onbriefs: June 24, 

### 1982 Decided: Ailgust 11, 1982 AtJt;

## 1i

## 1582 Filed- 

### !.

### Mr. Chief Justice Frank I. 

### Haswell delivered the Opinion of theCourt. Husband appeals from an order dated September 24, 1980, 

### which imposed a sanction of $400 in attorney fees to be paid by him towife's counsel asa conditionprecedent to setting aside a default entered against him on August 4, 1980. Two issues are presented to this Court: First, whether the notice of appeal was filed in a timely manner; secondly, whether the District 

### Court abused its discretion in imposing a sanction of attorney fees 

### as a condition precedent tosetting aside thedefault. On August 4, 1980, hearing was held by the District Court on two consolidated motions offered by respondent wife that requested the District Court (1)

### to hold appellant husband incontempt of court for arrearage in child support payments and (2) 

### to amend a prior support order nunc pro tunc to reflect appellant father's responsibility for the children'smedical deductiblesand anymedical costsexceeding the insurance coverage provided by the father's 

### employer. Appellant did not appear either personally or by counsel. No continuancehad been obtained by appellant. The District 

### Court heard and granted theconsolidated motions, defaulting appellant for failure to appear. Later that day, appellant's counsel moved the District Court to set aside thedefault. Thismotion was argued on August 18, 1980. 

### Appellant's counsel contended that local custom and professional courtesy required the District Court and opposing counsel tomake inquiry intoappellant's counsel

## 's absence from law and motion prior toallowing default tobe taken. Appellant's counsel also argued excusable neglectbased upon numerous informal attempts he had taken toobtain

a continuance. The District Court took the matter under advisement and, on September 23, 1980, handed down an order which enunciated that local custom provided for contacting attorneys to remind them of hearings inwhich only legalmatters would be decided and not in instances where factual matters would be contested. The DistrictCourt did find excusable neglect but required appellant to pay $400 in attorney fees to respondent

## 's counsel as 

### a condition precedent to setting aside of the default. It 

### is from this order that appellant appeals. Notice of appeal was filed on June 2, 1981. This Court may consider a matter on appeal only when appeal 

### is taken pursuant to the Montana Rules of Appellate Civil Procedure. Rule 1, M.R.App.Civ.P., confers jurisdiction upon this Court to hear an appeal in specific cases, which include "a final judgment entered in an action or special proceeding commenced in a districtcourt" and "from any special order made after final judgment." An appeal from any special order made after finaljudgment includes an order setting aside or refusing to vacate a default judgment. State ex 

### rel. Deck 

### v. District Court (1922), 64 Mont. 110, 112, 207 P. 1004, 1005. Rule 

### 5, M.R.App.Civ.P., requires that notice of appeal must then be filed within thirty days of entry of judgment or order or within thirty days of serviceof notice of entryof judgment or order when notice 

### is sorequired by Rule 77(d),I4.R.Civ.P. Such notice of entry of judgment 

### is required tobe served after entryof judgment or order to "each party who 

### is not in default for failure to appear" and 

### is to be then noted in the docket.Rule 77(d),t4.R.Civ.P. In the instant case, a careful examination of the District Court file reveals that no final judgment was entered after the August 4, 1980, default. Nor was the order entered on September 23, 1980, 

### a final order. No service of notice of entry of judgment or order 

### was made to either appellant or respondent in relation to either the default of August 4, 1980, or the order of September 23, 1980. This Court does not havejurisdiction of thismatter. Until finaljudgment 

### is entered, any appeal 

### ispremature. Dismissed without prejudice for lack of jurisdiction. 

# gk4a Chief Justice 

# gwd*

We 

### concur: