NO. 94-079

IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

IN RE THE MARRIAGE

TERRY SHIKANY,

OF

Petitioner and Respondent,

and

CAROL L. SHIKANY,

Respondent and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,

In and for the County of Cascade,

The Honorable Joel G. Roth, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Arthur D. Agnellino, Attorney at Law,

Missoula, Montana

For Respondent:

Joan E. Cook, Attorney at Law, Great Falls

Montana

Filed:

Submitted on Briefs: August 25, 1994

Decided: October 25, 1994

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Justice John Conway Harrison delivered the Opinion of the Court.

Carol L. Shikany (Carol) appeals from an order of the Eighth

Judicial District, Cascade County, denying her motion to set aside

both a decree dissolving her marriage to Terry Shikany (Terry), and

an order to convey real property to Terry. We reverse.

The following issues are presented on appeal:

1 . Did the District Court err by denying Carol's motion to

set aside the decree of dissolution and the order requiring the

clerk of court to convey real property?

2 . Did the District Court err in finding that Carol has a

minimal interest in the family residence?

3 . Did the District Court err in failing to find that Terry

committed a fraudulent act upon the court by seeking service by

publication?

On January ,26, 1984, Carol and Terry were married for the

first time. They resided in Missoula until January of 1985 when

they moved to Billings. In April of 1990, Carol left Terry and

returned to Missoula. Terry filed for dissolution, and the

marriage was dissolved on March 20, 1991. Under the terms of the

first dissolution, Terry became the sole owner of their residence

in Billings.

The parties reconciled and were remarried on October 22, 1991.

On November 4, 1991, Terry transferred title to the Billings

residence to Carol. Terry and Carol agree that transferring the

entire title was the result of a misunderstanding on the part of

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the Yellowstone county clerk's office. Both intended that Carol

and Terry were to have a joint interest in the property.

On June 5, 1992, Carol left Billings to visit her mother in

Andover, Massachusetts. Before leaving town, Carol telephoned

Terry and informed him that she was leaving him again. Terry knew

that Carol was going to her mother's in Andover. On November 2,

1992, Terry filed for dissolution in Cascade County. On November

4 , 1992, Terry filed an affidavit in support of service by

publication. Notice of the dissolution petition was published for

four consecutive weeks in the Cascade Courier, a weekly Cascade

County newspaper,. Carol was never personally served with the

petition for dissolution. On December 28, 1992, a default judgment

was entered in Terry's favor since Carol failed to answer the

petition for dissolution. On January 6, 1993, Judge McKittrick of

the Eighth Judicial District entered a decree of dissolution which

decreed that: the marriage was dissolved, the parties' personal

property had been reasonably divided, the parties' debts had been

reasonably divided, and Carol's former surname was restored. One

of the findings of fact in the decree stated that the real property

in Billings was awarded to Terry. On the same day, in a separate

order, Judge McKittrick ordered the clerk of court for the Eighth

Judicial District Court to sign a guitclaim deed giving Terry the

entire interest in the real property located in Billings.

Carol testified that after visiting relatives in Michigan and

Andover, Massachusetts, she went to New York and then to Florida

with her mother and children. She then returned to Missoula

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sometime in late August of 1992. Carol testified that she first

became aware of the decree of dissolution and order transferring

title to the Billings property when her attorney advised her to

call the Cascade County courthouse to get a copy of Carol and

Terry's first dissolution. Carol received a copy of the petition

for dissolution of her second marriage to Terry on May 20, 1993.

On May 28, 1993, pursuant to Rule 60(b), M.R.Civ.P., Carol

moved the District Court for relief from the decree of dissolution

and order transferring title to the Billings property. After

several continuances, the District Court held a hearing on the

motion and, by stipulation of the parties, considered testimony and

the parties' briefs and depositions. On January 31, 1994, the

District Court entered its order denying Carol's motion. Prom this

order, Carol appeals.

The dispositive issue in this case is whether the District

Court erred by denying Carol's motion to set aside the decree of

dissolution and the order requiring the clerk of court to convey

real property. Since this issue is dispositive, we will not

address the other issues raised.

This Court reviews rulings on motions to set aside default

judgments based on whether the district court abused its

discretion: however, no great abuse of discretion is necessary to

warrant reversal. In re Marriage of Broere (1994), 263 Mont. 207,

209, 867 P.2d 1092, 1093. The policy behind this is to favor a

trial on the merits. Marriaae of Broere, 867 P.2d at 1093.

In the present case, Terry served Carol by publication. Rule

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4D, M.R.Civ.P., governs service by publication. In relevant part,

it states:

(5) Service by publication - when permitted - effect -

manner - proof.

(a) When permitted. A defendant, whether known or

unknown, who has not been served under the foregoing

subsections of this rule can be served by publication in

the following situations only:

;iiij When the action is for dissolution . . . of a

marriage . . . .

This dissolution action qualifies for potential service by

publication under Rule 4D(5)(a)(iii), M.R.Civ.P. However, the rule

continues as follows:

(c) Filing of pleading and affidavit for service by

publication; and order for publication. Before service

of the summons by publication is authorized in any case,

there shall be filed with the clerk in the district court

of the county in which the action is commenced (i) a

pleading setting forth a claim in favor of the plaintiff

and against the defendant in one of the situations

defined in (5)(a) above: a& (ii) in situations defined

in . . . (5)(a)(iii), upon return of the summons showing

the failure to find any defendant designated in the

complaint, J-n affidavit statina that such defendant

resides out of the state, or has deuarted from the state,

or cannot, after due diliqence, be found within the

state, -conceals defendant‘s oerson to avoid the

service of summons . . . such affidavit shall be

sufficient evidence of the diligence of any inquiry made

by the affiant, if the affidavit recite the fact that

diligent inguiry was made, and it need not detail the

facts constituting such inquiry . . . .

Rule 4D(5)(c), M.R.Civ.P. (emphasis added).

On November 4, 1992, Terry's attorney filed an affidavit in

support of service by publication which stated, in pertinent part:

3 . That Mr. Shikany has informed me that his wife

abandoned him from their family residence in Billings,

Montana on or about June 1, 1992.

4. That Mr. Shikany has not heard from the Respondent

since this time nor does he know her whereabouts.

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5 . That the Respondent has family in Andover,

Massachusetts, but Mr. Shikany has had no confirmation

that that is. where Respondent is residing.

6 . That because Respondent cannot be properly served the

Petition for Dissolution of Marriage and Summons, there

is a need to publish the Summons to the Petition in a

[sic] accordance with the statutes of the State of

Montana.

The affidavit does not state that Carol departed the state, was out

of state at the time the affidavit was filed, was concealing

herself, or that a diligent inquiry was made as to Carol's

whereabouts. Since the affidavit does not allege diligent inquiry,

it is not sufficient evidence of a diligent inquiry. See Rule

4D(5) (cl, M.R.Civ.P. Nor does the affidavit recite facts showing

sufficient diligent inquiry on Terry's part, it simply states that

Terry had not heard from Carol since she left him.

In addition, our review of the record indicates that Terry's

efforts to discover Carol's whereabouts were minimal at best. At

the time the affidavit was filed, Carol resided in Missoula and had

resided there since late August of 1992. Terry testified that he

asked a few friends who lived in Missoula to tell him if they saw

Carol. This does not amount to a diligent effort to find Carol.

The insufficiency of this effort is compounded by the facts

that: Terry knew Carol was going to visit her mother in Andover,

Massachusetts; Terry had Carol's mother's phone number and address

in Andover, Massachusetts; Terry had Carol's mail forwarded to her

brother's home in Michigan; and Terry had previously located Carol

in Missoula to serve her with the dissolution petition from their

first marriage.

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Insufficient service of process is an ample ground to vacate

the default judgment in this case. Fonk v. Ulsher (1993), 260

Mont. 379, 383, 860 P.2d 145, 147; citing Sink v. Squire (1989),

236 Mont. 269, 273, 769 P.2d 706, 708, and Shields v. Pirkle

Refrigerated Freightlines, Inc., et al. (1979), 181 Mont. 37, 45,

591 P.2d 1120, 1125. In m, Fonk's mother was personally served

instead of Fonk; a default judgment was subsequently entered, and

Fonk moved to set aside the default judgment because he was not

properly served. -IFonk 860 P.2d at 146. We held that service upon

Fonk's mother was insufficient service upon Fonk; to hold otherwise

would violate Fonk's due process rights under the Fourteenth

Amendment to the United States Constitution and Article II, Section

17 of the Montana Constitution. -,Fonk 860 P.2d at 148. Since Fonk

was not validly served, we held that the default judgment was void.

m, 860 P.2d at 148.

Shields involved deficient service of process upon a

corporation under Rule 4D(2), M.R.Civ.P.; we held that a strict and

literal compliance with the law must be shown in order to support

a judgment based on substituted or constructive service. Shields,

591 P.2d at 1124. We also held that the service was fatally flawed

not only because of a lack of due diligence, but also because the

plaintiff failed to submit a sufficient affidavit in compliance

with Rule 4D. Shields, 591 P.2d at 1125. We concluded that

because service was deficient, the district court could not acquire

jurisdiction and, therefore, the default judgment was void.

Shields, 591 P.2d at 1125.

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Here, as we have already noted, Terry failed to demonstrate

due diligence. The affidavit submitted on behalf of Terry was

insufficient under Rule 4D(5)(c), M.R.Civ.P. Because the service

of process was deficient, the District Court did not acquire

jurisdiction. To hold otherwise would violate Carol's right to due

process under both the United States and Montana Constitutions.

Thus, we hold that the District Court abused its discretion in

refusing to vacate the default judgment and order to convey the

real property. The default judgment and order to convey real

property are void.

Reversed and. remanded.

We concur:

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