NO. 95-265

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

and

JEFFREY RICHARD BRYANT,

Respondent and Cross-Appellant

APPEAL FROM: District Court of the Eighth Judicial District,

In and for the County of Cascade,

The Honorable John M. McCarvel, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Michael S. Smartt; Big Sky Law Center,

Great Falls, Montana

For Respondent:

K. Dale Schwanke; Jardine, Stephenson, Blewett &

Weaver, Great Falls, Montana

Filed:

Submitted on Briefs: December 14, 1995

Decided: May 6, 1996
Justice Karla M. Gray delivered the Opinion of the Court.

Julia Kay Bryant (Julia) appeals from the deemed denial by the

Eighth Judicial District Court, Cascade County, of her motion to

set aside its order granting Jeffrey Richard Bryant's (Jeffrey)

Rule 59, M.R.Civ.P., motion and its subsequent order nunc pro tune.

Jeffrey cross-appeals from the District Court's findings,

conclusions and order of August 30, 1994, the order on his Rule 59

motion and the order nunc pro tune. We affirm.

We restate the issues on appeal and cross-appeal as follows:

1 . Is Julia's appeal properly before us?

2 . Did the District Court err in denying Julia's motion to

set aside?

3 . Did the District Court err in denying Jeffrey's request

for reimbursement of visitation-related transportation

expenses?

The marriage of Julia and Jeffrey was dissolved by the

District Court's final decree entered October 23, 1991. The decree

approved and incorporated the parties' written Dissolution

Agreement (Agreement) in which, among other things, Julia and

Jeffrey agreed that they would have joint custody of their minor

children and that Julia would be designated the children's primary

physical custodian with liberal visitation rights in Jeffrey. The

Agreement also established child support and provided that Julia

and Jeffrey would share equally in the costs of transportation for

visitation.

Julia subsequently moved to modify child support and other

2
provisions of the decree relating to the children's medical

expenses and day care costs; in addition, she sought to make

Jeffrey solely responsible for transportation expenses related to

his visitations with the children. Jeffrey also moved to modify

child support and requested the District Court to determine the

amount of transportation cost reimbursement owed by Julia pursuant

to the decree. On August 30, 1994, after a hearing on the motions,

the court entered its findings, conclusions and order increasing

Jeffrey's child support obligation, determining that Jeffrey was

not entitled to reimbursement for any of the visitation-related

transportation costs claimed under the 1991 decree and making

Jeffrey solely responsible for future visitation-related costs

incurred in transporting the children between Power and Great

Falls. Julia served notice of entry on September 2, 1994.

Jeffrey subsequently filed a timely Rule 59(g), M.R.Civ.P.,

motion to amend the District Court's findings, conclusions and

order relating primarily to child support. On October 31, 1994,

the court executed its findings, conclusions and order granting

Jeffrey's motion to amend. The order was filed on November 4,

1994.

Jeffrey then moved the District Court to enter an order nunc

pro tune for the sole purpose of attaching to the October 31

findings, conclusions and order the child support guideline

calculations adopted by reference therein. The court entered the

order nunc pro tune on November 14, 1994.

On December 7, 1994, Julia moved the District Court to set

3
aside its findings, conclusions and order on Jeffrey's Rule 59

motion and its subsequent order nunc pro tune. She contended that

the order dated October 31, 1994, but not filed until November 4,

1994, was void for lack of jurisdiction and, as a result, that the

subsequent order nunc pro tune also was void. In essence, a grant

of Julia's motion would result in reinstatement of the District

Court's August 30, 1994, order. The court did not rule on Julia's

motion to set aside within 45 days and, therefore, the motion was

deemed denied on or about January 22, 1995.

On February 15, 1995, Julia filed a notice of appeal. Jeffrey

subsequently filed a notice of cross-appeal.

We note at the outset, for clarity, that this case predates

our recent amendments to Rules 59 and 60(c), M.R.Civ.P., increasing

from 45 to 60 days the period during which a district court must

rule on a motion made under those rules.

1 . Is Julia's appeal properly before us?

Julia's February 15, 1995, notice of appeal states that she

appeals from the denial of her motion to set aside the District

Court's order granting Jeffrey's Rule 59 motion to amend and its

related order nunc pro tune. Her notice also states her intention

to appeal directly the court's orders on Jeffrey's Rule 59 motion

and nunc pro tune. On appeal, however, Julia argues only the

denial of her motion to set aside the earlier orders. Therefore,

we do not address either procedurally or substantively her

purported direct appeal from the District Court's earlier orders.

Jeffrey argues that Julia's appeal is untimely and, on that

4
basis, not properly before us. His argument is premised on his

characterization of Julia's December 7, 1994, motion as a motion to

alter or amend which, pursuant to Rule 59(g), M.R.Civ.P., must be

served within 10 days after service of notice of entry of the

judgment or order at issue. Because Julia's December 7, 1994,

motion was not served within 10 days of service of the notice of

entry of the District Court's order nunc pro tune on November 17,

1994, Jeffrey contends that Rule 5(a) cl), M.R.App.P., required

Julia to file her notice of appeal within 30 days of November 17,

1994. Under Jeffrey's theory, her failure to do so renders this

appeal untimely.

The basis for Jeffrey's characterization of Julia's motion as

a Rule 59(g), M.R.Civ.P., motion to alter or amend is not readily

apparent. Julia clearly denominated her motion a "Motion to Set

Aside." Moreover, she argued therein that the District Court did

not timely rule on Jeffrey's Rule 59(g), M.R.Civ.P., motion to

amend and, therefore, that its order granting Jeffrey's motion must

be set aside as void for lack of jurisdiction.

Rule 60(b) (4), M.R.Civ.P., authorizes a motion to set aside an

order or judgment on the grounds that the order was void. We

repeatedly have held that the time period mandated by Rule 59,

M.R.Civ.P., for a district court's action on a post-trial motion

thereunder is jurisdictional and that a court's failure to act

within the mandated period divests the court of jurisdiction.

Wallinder v. Lagerquist (1982), 201 Mont. 212, 216-18, 653 P.2d

840, 842-43 (citations omitted); In re Marriage of Sell (1981), 193

5
Mont. 88, 91, 630 P.2d 222, 224 (citation omitted). An order not

within the jurisdictional time limits of Rule 59, M.R.Civ.P., is "a

nullity" (Marriase of Sell, 630 P.2d at 224) and such an order "can

be assailed on appeal or by motion to set it aside. . . .'I Evans

v. Oregon Short Line R. Co. (1915), 51 Mont. 107, 112, 149 P. 715,

717.

We conclude that Julia's December 7, 1994, motion was a Rule

60(b) (4), M.R.Civ.P., motion to set aside the District Court's

October 31 and November 14, 1994, orders as void for lack of

jurisdiction. Her motion was deemed denied on or about January 22,

1995, pursuant to Rules 60(c) and 59, M.R.Civ.P., and her notice of

appeal was filed within 30 days thereafter as required by Rule 5,

M.R.App.P. We hold, therefore, that Julia's appeal from the denial

of her motion to set aside was timely and that her appeal is

properly before us.

2 . Did the District Court err in denying Julia's motion to

set aside?

The District Court executed its order granting Jeffrey's Rule

59 (9) , M.R.Civ.P., motion to amend on October 31, 1994, the fortyfifth day after the motion was filed. The order was filed four

days later. Julia contends, on these facts, that the court did not

timely rule on Jeffrey's motion to amend under Rule 59, M.R.Civ.P.,

and, therefore, that the court lacked jurisdiction to act

thereafter. On that basis, she argues that her motion to set aside

both the court's order and its subsequent, related order nunc pro

tune should have been granted.

Rule 59(g), M.R.Civ.P., requires a district court to "deter6
mine" or "rule on" a motion to alter or amend within the 45 days

provided in Rule 59(d), M.R.Civ.P., for ruling on a motion for a

new trial. The motion is deemed denied if the district court fails

to do so. Rule 59(g), M.R.Civ.P. Moreover, as discussed briefly

above, our cases are clear that the 45-day period contained in Rule

59 is mandatory; a court's failure to timely act divests the court

of jurisdiction and renders any later order a nullity. See Pierce

v. ALSC Architects, P.S. (1993), 259 Mont. 379, 381-82, 856 P.2d

969, 971; Cowles v. Sheeline (1993), 259 Mont. 1, 16, 855 P.2d 93,

102; Marvel Brute Steel Bldg. v. Bass (1980), 189 Mont. 480, 483,

616 P.2d 380, 382.

Rule 59(g), M.R.Civ.P., does not define the terms "determine"

and "rule on" contained therein. Both terms, however, are commonly

understood--in both the everyday and legal sense--to mean "decide."

In common parlance, "deciding" is synonymous with both "ruling" and

"determining." American Heritage Dictionary (3d ed. 1990). In

legal terms, when a judge rules on a matter, it is meant that the

judge decided the matter; a court's "determination" is its

decision. Black's Law Dictionary 450 (6th ed. 1990). Thus, the

plain meaning of the words "determine" and "rule on," as used in

Rule 59(g), M.R.Civ.P., encompasses only the court's decision.

Julia calls our attention, however, to the following

additional language in Rule 59(d), M.R.Civ.P.:

The decision on the motion may be entered in the

minutes of the court, or may be made in writing in

chambers or in any county in the state where the judge

may be, and be filed with the clerk of court in the

county where the action is pending.

7
It is clear that this language provides for the manner in which the

court's ruling is to be made of record. It is equally clear,

however, that this language does not require the court's decision

to be entered in the minutes or, if made in writing, filed with the

clerk of court within the 45-day period provided in Rule 59 for

making the decision. Indeed, nothing in Rule 59, M.R.Civ.P.,

specifically requires that the court's decision on a Rule 59 motion

be made of record within the specified period for acting on the

motion. To insert such a requirement where none exists would be an

improper exercise of this Court's function. & § l-2-101, MCA.

Julia cites to no case in which we have held that a district

court's timely ruling under Rule 59, M.R.Civ.P., includes a

requirement that the decision be made of record within the 45-day

period, and we have located none. We do observe that both Marvel

and Cowles might be read to stand for such a holding and to support

Julia's argument here. Therefore, for purposes of clarity, we

address those cases briefly.

In Marvel, we discussed at some length the effect of an order

on a Rule 59 motion and the interplay between the timing of such an

order and the timeliness of an appeal from that order. Marvel, 616

P.2d at 382-83. Our specific language concluded that the untimely

order on a Rule 59 motion was a nullity "because it was issued

after the time had expired under Rule 59, within which to & on

a motion for a new trial." Marvel, 616 P.2d at 382 (emphasis

added). In Cowles, we cited to Marvel for the principle that "[aIn

order denying a motion is a nullity where it is issued after the

8
time for rulinq on the motion has expired." Cowles, 855 P.2d at

102 (citation omitted) (emphasis added).

Both Marvel and Cowles clearly stand for the well-established

principles that the Rule 59, M.R.Civ.P., time limit is mandatory

and that a district court's failure to act on a Rule 59 motion

within the specified time limit divests the court of jurisdiction

to act on the motion. Neither, however, presented the issue of

whether a ruling on a Rule 59 motion must be both executed and made

of record to be timely and, therefore, within the court's

jurisdiction, under Rule 59, M.R.Civ.P. Rather, close scrutiny of

those opinions indicates that our use of both "ruling" and

"issuance" in Marvel and Cowles was inadvertent and arose from the

facts of those cases; it was not material to our decisions on the

issues squarely presented in those cases. We conclude that Marvel

and Cowles constitute neither controlling precedent for Julia's

argument in this case nor persuasive authority for a result which

would vary from our plain meaning analysis of Rule 59, M.R.Civ.P.

Here, the District Court determined and ruled on Jeffrey's

Rule 59 motion on October 31, 1994, when it signed its findings,

conclusions and order thereon. October 31 was the forty-fifth day

after the filing of Jeffrey's motion. We conclude, therefore, that

the District Court timely ruled on Jeffrey's motion under Rule

59 (g) , M.R.Civ.P., and, therefore, that the court acted within its

jurisdiction. As a result, we hold that Julia's Rule 60 (b) ,

M.R.Civ.P., motion to set aside the court's order as void for lack

of jurisdiction properly was denied.

9
3 . Did the District Court err in denying Jeffrey's request

for reimbursement of visitation-related transportation

expenses?

Jeffrey contended that, pursuant to the parties' Agreement and

the final decree of dissolution, he was entitled to reimbursement

from Julia of $1,248 as her one-half share of transportation

expenses incurred in driving to and from Great Falls from his

residence in Power, some 20 miles away, to pick up and return the

children for visitation. Julia resisted the claim and also sought

to make Jeffrey solely responsible for both past and future

visitation-related expenses

The District Court made the following finding:

6 . [Jeffrey] has claimed reimbursement for

transportation of the children for his visitational

purposes. Though [Jeffrey] was able to pick-up [sic] the

children, after work (in Great Falls), to take them to

his home, and though he was able to return the children

from his home in Power when he returned to work in Great

Falls, often times, for his own convenience, he'd have

his present spouse do the transportation. Such was an

unnecessary and unreasonable waste of time and exoense.

Additionally, the parties did not reasonablv contemolate

the transportation between Great Falls and Power as a

reimbursable expense within their "Dissolution

Agreement." [Emphasis added.]

"Reasonableness" is a question of fact. Reeves v. Liberty Mut.

Fire Ins. Co. (Mont. 1996), 911 P.2d 839, 842, 53 St.Rep. 88, 91

(citation omitted). We review a district court's findings of fact

to determine whether they are clearly erroneous. In re Marriage of

Brownell (1993), 263 Mont. 78, 81, 865 P.2d 307, 309 (citation

omitted).

Julia and Jeffrey's Agreement awarded the parties joint

custody of the children, with Julia designated as the children's

10
primary custodian and liberal visitation rights in Jeffrey.

Visitation specifically was provided to Jeffrey I' every other

weekend and one day per week where he will pick the children up

after work and then deliver them to school the following day, if

applicable." Additional minimum visitation of two weeks in the

summer and alternating holidays also was specifically provided.

With regard to costs, the Agreement provided that Julia and Jeffrey

would either meet approximately halfway between the place where

visitation was to take place and the children's residence or share

equally in the cost of transportation for visitation. The

Agreement was made part of the final decree of dissolution.

At the hearing on the parties' motions, Julia testified that

Jeffrey drives into Great Falls from Power every weekday for work.

Both during the week and for weekend visitations, he picks the

children up after school and takes them home with him to Power and

then returns them to Great Falls when coming in to work the next

day or, after weekends, on Monday mornings. She added that

Jeffrey's current wife Robin frequently comes in and picks up the

children, rather than having Jeffrey do it, and that Jeffrey had

told her that he simply did not want to pick up the children

himself because he did not desire to talk to her or go to her

house. In Julia's view, Robin's trips were unnecessary.

Jeffrey's testimony was not dissimilar. He testified that,

while he usually brought the children into Great Falls with him on

school days, Robin most often picked them up when they were to go

to Power and then brought them back into town. According to

11
Jeffrey, this transportation arrangement avoided day care, allowed

him to avoid going to Julia's home, and permitted the children to

bond with their stepbrother and half-sister. He testified that his

claim for reimbursement included mileage charges for the times he

picked the children up after work and then returned them to Great

Falls upon going to work the next day. Robin also testified that

she most often picked up the children in Great Falls and returned

them after the visitation.

Jeffrey's evidence regarding the number of miles upon which he

based his claim for reimbursement also was presented through Robin,

who kept calendars of the visitations and tracked who did the

driving on each occasion. According to the exhibit she had

prepared, mileage for one of Jeffrey's round trips with the

children was 41.6 miles. When Robin drove into Great Falls to pick

the children up and take them to Power, and Jeffrey returned the

children to Great Falls, 62.4 miles were charged; when Robin drove

into town to get the children, brought them to Power, returned the

children to Great Falls and then drove herself back to Power, 83.2

miles were charged. The current IRS-authorized rate for business

mileage reimbursement was used to calculate the total of $2,496,

reimbursement of one-half of which was sought from Julia.

Thus, the evidence regardingvisitation-related transportation

costs or expenses is not in substantial conflict. It reflects

that, for the most part, Jeffrey could pick up and return the

children in conjunction with his own commuting to work in Great

Falls. By his own testimony, Julia should not be responsible for

12
his work-related transport. However, he did not deduct the mileage

for the trips he actually made with the children from the mileage

for which he sought reimbursement from Julia and he offers no

explanation for why those "costs" constitute visitation-related

transportation expenses.

Nor did Jeffrey deduct mileage for the trips Robin made;

indeed, Robin's trips added significant amounts to the mileage he

claimed. The undisputed testimony was that Jeffrey could have made

most of the trips himself in conjunction with his work-related

commutes to and from Great Falls. Such trips would not involve

visitation-related expenses. The fact that he chose not to do so

on most occasions, for his own comfort and convenience and to add

to the time available for the various children in his and Robin's

household to bond, does not allow him to convertRobin's trips into

a visitation-related expense upon which to base a claim for

reimbursement from Julia.

The record before us contains substantial evidence supporting

the District Court's finding that the transportation costs for

which reimbursement was sought were unreasonable. The District

Court did not misapprehend the effect of the evidence and we are

not left with a definite and firm conviction that a mistake has

been committed.

We conclude that the District Court's finding regarding the

reimbursement claim is not clearly erroneous. On that basis, we

hold that the District Court did not err in denying Jeffrey's

request for reimbursement of visitation-related transportation

13
expenses

Affirmed.

14
Justice Karla M. Gray, specially concurring

I undertake the unusual step of specially concurring in the

Court's opinion, which I authored and with which I agree entirely,

to bring to the attention of practitioners an issue which arose sua

soonte during our consideration of this case. The issue is whether

Jeffrey's cross-appeal was timely, and it arose in such an unusual

fashion because it relates to whether the cross-appeal was properly

before us. Under well-established principles, if an appeal is not

timely, we do not acquire jurisdiction to entertain and determine

it. Anderson v. Bashey (lYYO), 241 Mont. 252, 255, 787 P.2d 304,

306 (citation omitted).

Since this Court has never addressed the precise issue raised

by the procedural facts of this case, and because case authority on

the issue is nearly nonexistent, we properly decided not to resolve

the issue in the context of this case where it might have appeared

to disadvantage Jeffrey. I raise it now to alert counsel to the

importance of time limits in taking an appeal and to the potential

difficulty which could arise in that regard where procedural facts

are, as in this case, out of the ordinary.

Jeffrey's amended notice of cross-appeal states that he

appeals from the District Court's findings, conclusions and order

dated August 30, 1994, from its order granting his Rule 59 motion

filed November 4, 1994, and from its order nunc pro tune entered

November 14, 1994. The only error he argues on appeal, however,

relates to the District Court's August 30, 1994, determinations

regarding visitation-related transportation expenses.

15
The District Court entered its findings, conclusions and order

on Julia and Jeffrey's motions to modify child support and other

provisions of the original decree and for determination of

transportation costs owed on August 30, 1994, and notice of entry

was served on September 2, 1994. Thereafter, Jeffrey filed a

motion to amend pursuant to Rule 59(g), M.R.Civ.P. As discussed in

issue two of our opinion, the District Court timely ruled on

Jeffrey's motion and its order was filed November 4, 1994. At

Jeffrey's request, the court subsequently entered an order nunc pro

tune on November 14, 1994.

Jeffrey filed his "Notice of Cross Appeal" and two amended

notices on February 23, February 27, and March 1, 1995,

respectively. The record is clear that Jeffrey did not file any

earlier notice of appeal from the court's August, October and

November of 1994 orders; he waited until after the deemed denial of

Julia's Rule 60(b), M.R.Civ.P., motion and, indeed, until after

Julia's notice of appeal, to file his notice of cross-appeal.

In civil cases, a notice of appeal generally must be filed

within 30 days from the date of entry of the judgment or order

appealed from or, where service of notice of entry of the judgment

or order is required by Rule 7?(d), M.R.Civ.P., within 30 days from

that service. Rule 5(a)(l), M.R.App.P. Here, service of notice of

entry of the District Court's August 30, 1994, order, from which

Jeffrey attempts to appeal, was required by Rule 77(d), M.R.Civ.P.,

and was timely made on September 2, 1994. Applying Rule 5(a) (l),

M.R.App.P., Jeffrey had 30 days thereafter to file a notice of

16
appeal. While he failed to do so, he did file a timely Rule 59(g),

M.R.Civ.P., motion to amend.

Rule 5(a) (4), M.R.App.P., separately addresses the running of

the 30 days during which an appeal may be taken in instances where

a party files a timely Rule 59, M.R.Civ.P., motion to alter or

amend. In such a case, the 30-day appeal time runs from the entry

of the court's order granting or denying the motion or, where

applicable, from the deemed denial of the motion upon expiration of

the 45-day period established by Rule 59(d), M.R.Civ.P. Rule

5(a) (4), M.R.App.P. The effect of Rule 5(a) (4), M.R.App.P., is to

suspend the running of the appeal time under Rule 5(a) (1) pending

either the district court's timely determination of a timely filed

Rule 59 motion or the denial of such a motion by operation of law.

See Marvel, 616 P.2d at 382.

Here, the District Court ruled on Jeffrey's timely Rule 59(g)

motion on October 31 and entered its amending order on November 4,

1994. Applying the 30-day appeal period contained Rule 5(a) (4),

M.R.App.P., to that date, the period during which Jeffrey could

file a timely notice of appeal would expire on or about December 4,

1994. Jeffrey did not file a notice of appeal within that time

period or, indeed, until February 23, 1995. With regard to

Jeffrey's attempt to appeal from the court's November 14, 1994,

order nunc pro tune, Rule 5(a) (4), M.R.App.P., does not provide a

separate time period for appealing from an order nunc pro tune

entered subsequent to an order on a Rule 59(g), M.R.Civ.P., motion

to amend.

17
Rule 5(a) (3), M.R.App.P., allows a party to file a notice of

cross-appeal within 14 days after the date on which the appealing

party timely files a notice of appeal. Here, Jeffrey's notice of

cross-appeal was filed within 14 days of Julia's February 15, 1995,

notice of appeal.

We concluded in issue one of our opinion that Julia's appeal

from the deemed denial of her Rule 60(b), M.R.Civ.P., motion to set

aside was timely. The issue raised, but not resolved, here is

whether that conclusion mandates a corresponding conclusion that

Jeffrey's notice of cross-appeal was timely pursuant to Rule

5(a) (3), M.R.App.P., where Jeffrey's appeal related not to the

denial of Julia's motion to set aside but to the earlier, and

underlying, orders entered by the District Court. Stated

differently, where no timely appeal was taken from the earlier

orders, and Rule 60(b), M.R.Civ.P., provides that motions

thereunder do not affect the finality of a judgment, can a party in

Jeffrey's position l'bootstrap'l into a timely appeal of the earlier

orders by relying on the later appeal date from the denial of

another party's Rule 60(b) motion which is available to that party

under Rule 60(c), M.R.Civ.P., and Rule 5, M.R.App.P.?

We do not resolve this question, and properly so. However,

counsel should be aware of this potential trap for the unwary in

deciding when to file an appeal or cross-appeal in circumstances

similar to those presented in this case.

18
May 6, 1996

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent bv United States mail. oreuaid. to the ,

/I I I

following named:

Michael S. Smartt

Big Sky Law Center

P.O. Box 2323

Great Falls, MT 59403

Great Falls, MT 59403

K. Dale Schwa&e

Jardine, Stephenson, Blewett & Weaver

P.O. Box 2269

,ED SMITH

CLERK OF THE? SUPREM

STATE OF MONTANA

[E

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