Preview:

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

Submitted on Briefs: Decided: Filed:

December 14, 1995 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 Agreement and incorporated the parties' among written things, Dissolution Julia and

(Agreement)

in which,

other

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 in addition, she sought to make

expenses and day care costs;

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, conclusions and order increasing

the court entered its findings,

Jeffrey's child support obligation, determining that Jeffrey was not entitled to reimbursement for any of the visitation-related transportation costs claimed under the Jeffrey solely responsible for future 1991 decree and making 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, order relating primarily to child support. the court executed its findings, Jeffrey's motion to amend. 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 The court entered the conclusions conclusions and

On October 31, 1994, and order granting

The order was filed on November 4,

calculations adopted by reference therein. 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 She contended that

motion and its subsequent order nunc pro tune.

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. subsequently filed a notice of cross-appeal. We note at the outset, for clarity, that this case predates Jeffrey

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 Therefore,

denial of her motion to set aside the earlier orders.

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. Aside." Julia clearly denominated her motion a "Motion to Set 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 orders as void for lack of

October 31 and November 14, 1994, 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. days later. The order was filed four

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., new trial. to do so. above, for ruling on a motion for a

The motion is deemed denied if the district court fails Rule 59(g), M.R.Civ.P. Moreover, as discussed briefly

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 Rule 59(g), M.R.Civ.P., Julia calls our

on," as used in

encompasses only the court's decision. 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 &

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