NO. 95-318

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

IN RE THE MARRIAGE OF

GORDON A. CLARK,

Petitioner and Respondent,

v.

KIMBERLY CLARK,

Respondent and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

The Honorable G. Todd Baugh, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Brian Kohn, Billings, Montana

For Respondent:

R. Russell Plath, Halverson, Sheehy & Plath,

Billings, Montana

Submitted on Briefs: October 26, 1995

Decided: November 21, 1995
Justice William E. Hunt, Sr., delivered the Opinion of the Court.

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1995 Internal Operating Rules, the following decision shall not be

cited as precedent and shall be published by its filing as a public

document with the Clerk of this Court and by a report of its result

to State Reporter Publishing Company and West Publishing Company.

Respondent Gordon A. Clark filed for divorce from the

appellant Kimberly Clark. Although served, appellant did not

appear in the divorce action and the Thirteenth Judicial District

Court, Yellowstone County, duly entered a default against her.

Appellant later moved the District Court to have the default set

aside and reopen the dissolution proceedings. The District Court

denied her motion and appellant appeals.

We affirm.

Appellant and respondent were married in December, 1991 and

resided near Acton, Montana. In June 1992, respondent was removed

to the federal prison in Leavenworth, Kansas, to begin serving a

sentence for federal drug charges. At all times pertinent to this

appeal, respondent remained incarcerated at Leavenworth, and in

fact he is still in prison today. In September 1993, respondent

filed for divorce, and appellant was properly served with notice of

the divorce proceedings. Appellant did not appear in the

proceedings and respondent received a judgment by default in

December 1993.

In July 1994, appellant moved the District Court to set aside

the default. Her motion was supported by an affidavit which

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alleged that respondent threatened to have her hurt or killed if

she contested the divorce, and that she had not entered an

appearance because she was afraid to do so. For his part,

appellant accused respondent of pawning some of his personal

belongings, "trashing" his home, and continuing to write checks on

their checking accounts after she had drained them of funds,

resulting in numerous bad check charges against her.

The parties stipulated that the matter was submitted on the

briefs, motions, and affidavits, without an evidentiary hearing.

On April 18, 1995, the District Court held that neither party came

to court with "clean hands," characterizing their respective

actions as "nefarious." The court therefore determined to leave

the parties as it found them and denied appellant's motion to set

aside the default.

The sole issue on appeal is whether the district court abused

its discretion by refusing to set aside the default. Appellant

alleges that the District Court misapplied the "clean hands"

doctrine in this case, and that this misapplication was erroneous.

We agree, but affirm on other grounds.

The doctrine of clean hands means:

equity will not grant relief to a party, who, as actor,

seeks to set judicial machinery in motion and obtain some

remedy, if such party in prior conduct has violated

conscience or good faith or other equitable principle.

One seeking equitable relief cannot take advantage of

one's own wrong.

Black's Law Dictionary 250 (6th ed. 1990), citations omitted.

I'[I]~ is a long-established maxim of jurisprudence that parties

must not expect relief in equity, unless they come into court with

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clean hands." In re Marriage of Burner (19911, 246 Mont. 394, 397,

803 P.2d 1099, 1100.

Yet a court cannot expect the parties before it to have led

blameless lives. It cannot note every wrong ever done and hold it

against them, thereby "repelling all sinners from a court of

equity." Hoopes v. Hoopes (Idaho 19931, 861 P.2d 88, 92. The

doctrine therefore dictates the parties must have clean hands only

regarding the controversy or issue then before the court. It

prevents the parties from profiting from their own wrongs.

In this case, neither party has been a model of decorous

behavior. Each accuses the other of myriad wrongs, both have

prison records, and one is currently incarcerated. But unfounded

accusations alone cannot taint a party with unclean hands, and none

of the documented wrongs perpetrated by either party can be traced

back to the divorce. In seeking to set aside the default,

appellant is not attempting to profit from her past bad actions.

In resisting her motion, respondent is not trying to capitalize on

his own wrongs. As far as the divorce proceeding is concerned, the

hands of both the parties are clean.

Nevertheless, the District Court did not err in refusing to

set aside the default. Appellant's motion, affidavit, and brief do

not contain sufficient evidence to justify such a result.

We will reverse a trial court's refusal to set aside a default

judgment if we find even a slight abuse of discretion. But the

party seeking to set aside the default bears the burden of proving
such a result is warranted. Falcon v. Faulkner (Mont. 1995), 903

P.2d 197, 200, 52 St.Rep. 1011, 1013.

Rule 60(b), M.R.Civ.P., lists the circumstances under which a

default may be set aside:

On motion and upon such terms as are just, the court may

relieve a party or a party's legal representative from a

final judgment, order, or proceeding for the following

reasons :

(1) mistake, inadvertence, surprise, or excusable

neglect;

(2) newly discovered evidence . . .

(3) fraud . misrepresentation or other misconduct of

an adverse party;

(4) the judgment is void;

(5) the judgment has been satisfied . . . or

(6) any other reason justifying relief.

In this case, appellant's motion relies on 60(b) (6) because she

asserts another reason exists to justify setting aside the default.

However, relief is warranted under subsection (6) of Rule 60(b),

M.R.Civ.P., in extraordinary situations only, such as lack of

subject-matter jurisdiction, unavoidable lack of counsel, or

potential judicial bias. Falcon, 903 P.2d at 201, citations

omitted.

Appellant claims she did not appear in the divorce action

because she was threatened by respondent with physical injury. She

asked the district court to set aside the default on the grounds of

coercion and duress. This Court will grant that a clear showing of

believable, coercive threats which intend to and succeed in

preventing a party from taking part in a controversy may indeed

qualify as an "extraordinary situation" justifying relief from a

default.

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In this case, however, the parties stipulated that the motion

was submitted on the briefs and affidavits, and that no evidentiary

hearing was necessary. Therefore, appellant offered no evidence

concerning the alleged "coercion and duress" other than her own

allegation that threats were made. She did not specify when the

threats were made or what was specifically threatened. She offered

no corroborating testimony or affidavits from others who knew of

the threats or saw their effect on her. Appellant's allegation

alone, without more, is insufficient to create an "extraordinary

situation" which would justify setting aside the default, and the

District Court did not abuse its discretion in refusing to do so.

Affirmed.

Justice

We Concur:
November 21. 1995

CERTIFICATE OF SERVICE

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

following named:

Brian Kohn

Attorney At Law

2501 Fourth Avenue North

Billings MT 59101

R. Russell Plath

Halverson, Sheehy & Plath, P.C.

Box 1817

Billings MT 59103-1817

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA

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