No. 81-304 

1N THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

IN RE THE MARRIAGE OF 

PATRICIA A. REX, 

Plaintiff and Respondent, 

and 

CALVIN T. REX, 

Defendant and Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

In and for the County of Missoula 

Honorable James B. Wheelis, Judge presidinq. 

Counsel of Record: 

For Appellant: 

Morales, Volinkaty & Harr, Missoula, Montana 

For Respondent : 

Anthony Keast, Kissoula, Montana 

Submitted on briefs: June 24, 1982 

Decided: Ailgust 11, 1982 

AtJt; 1 i 1582 

Filed- !. 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

Husband appeals from an order dated September 24, 

1980, which imposed a sanction of $400 in attorney fees to 

be paid by him to wife's counsel as a condition precedent 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 to setting aside the default. 

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 in contempt 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's medical deductibles and any medical costs exceeding the insurance coverage provided by the father's employer. Appellant did not appear either personally or by 

counsel. No continuance had been obtained by appellant. 

The District Court heard and granted the consolidated 

motions, defaulting appellant for failure to appear. Later 

that day, appellant's counsel moved the District Court to 

set aside the default. This motion was argued on August 18, 

1980. Appellant's counsel contended that local custom and 

professional courtesy required the District Court and 

opposing counsel to make inquiry into appellant 's counsel ' s 

absence from law and motion prior to allowing default to be 

taken. Appellant's counsel also argued excusable neglect 
based upon numerous informal attempts he had taken to obtain 

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 in which only legal matters would 

be decided and not in instances where factual matters would 

be contested. The District Court 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 district court" and "from 

any special order made after final judgment." An appeal 

from any special order made after final judgment 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 service of notice of entry of judgment or order when 

notice is so required by Rule 77(d), I4.R.Civ.P. Such notice 

of entry of judgment is required to be served after entry of 

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 have jurisdiction of this matter. 

Until final judgment is entered, any appeal is premature. 

Dismissed without prejudice for lack of jurisdiction. 

gk4a Chief Justice gwd* 

We concur: