                                                                                          May 15 2012


                                           DA 11-0423

                      IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2012 MT 109N



LINDA B. JONAS,

              Plaintiff, Appellee, and
              Cross-Appellant,

         v.

EDWIN R. JONAS, III,

              Defendant, Appellant, and
              Cross-Appellee.



APPEAL FROM:            District Court of the Twentieth Judicial District,
                        In and For the County of Lake, Cause No. DV-09-388
                        Honorable C.B. McNeil, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Ronald F. Waterman, Gough, Shanahan, Johnson & Waterman, PLLP,
                        Helena, Montana

                For Appellee:

                        Quentin M. Rhoades, Robert D. Erickson, Sullivan, Tabaracci
                        & Rhoades, P.C., Missoula, Montana



                                                    Submitted on Briefs: March 14, 2012

                                                               Decided: May 15, 2012


Filed:

                        __________________________________________
                                          Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Edwin R. Jonas, III (Edwin), appeals the Twentieth Judicial District Court’s denial

of his M. R. Civ. P. 60 (Rule 60) motion seeking relief from a judgment entered against

him in New Jersey. He also appeals from an order recognizing the judgment in Montana,

and seeks remand to the District Court for a hearing on allegations of fraud. Linda B.

Jonas (Linda), his ex-wife, cross-appeals the District Court’s denial of her request for

costs, expenses, and attorney fees. We affirm.

                                         ISSUES

¶3     Edwin raises three issues on appeal and Linda raises one. We restate the issues as

follows:

¶4     1. Did the District Court abuse its discretion in denying Edwin’s Rule 60 motion

on the basis of res judicata and law of the case?

¶5     2. Did the District Court abuse its discretion in denying Linda’s request that

Edwin and his attorney be required to pay her costs, expenses, and attorney fees for this

round of litigation pursuant to § 37-61-421, MCA (2009)?

                 FACTUAL AND PROCEDURAL BACKGROUND




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¶6     The present appeal is the latest round in the divorce dispute between Edwin and

Linda, which began when Linda filed for divorce in 1988 in New Jersey. Since then,

numerous court orders, trials, and appeals have occurred, involving courts in New Jersey,

Florida, and Montana; this is the second appearance of this dispute before this Court. On

May 2, 2006, the final divorce judgment was entered in New Jersey. Prior New Jersey

court orders described Edwin’s “non-compliance with court-ordered obligations” and

imposed measures on him “to ensure payment of his support obligations, including

warrants for [his] arrest, authorization of [Linda] to sell [his] real property, appointment

of [Linda] as receiver of a 7-11 store [he] owned, and establishment of a constructive

trust.” Linda was required to maintain records of the trust, and Edwin was allowed to

seek an accounting of the trust and the appointment of an independent trustee, provided

he complied with certain conditions, including personally appearing before the court and

posting a surety bond to cover all outstanding judgments.

¶7     On May 23, 2006, a New Jersey superior court entered judgment (2006 Judgment)

against Edwin for unpaid child support and alimony, among other things, in the amount

of $695,476.97, interest totaling $147,205.35 as of December 31, 2005, a $3,000 per

month ongoing alimony obligation, and attorney fees and costs in the amount of

$7,552.50, together with applicable interest. A New Jersey appellate court dismissed

Edwin’s appeal, affirming the decision and the judge’s application of the fugitive

disentitlement doctrine, which bars a fugitive from “seek[ing] relief from the judicial

system whose authority he or she evades.” Matsumoto v. Matsumoto, 792 A.2d 1222,




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1227 (N.J. 2002) (citation omitted). Edwin did not appeal to the New Jersey Supreme

Court.

¶8       In December 2009, Linda domesticated the New Jersey judgment in Montana and

provided notice, pursuant to the Uniform Enforcement of Foreign Judgments Act,

§§ 25-9-501 to -508, MCA (2009).        Edwin moved to stay and vacate the foreign

judgment; his motion was denied by the Lake County District Court for failure to file a

supporting brief. On February 3, 2010, the District Court issued a Charging Order, and

Order for Appointment of Receiver, Foreclosure of Lien, and of Sale of Property against

Edwin pursuant to §§ 35-8-705 and -902, MCA (2009), to enforce the 2006 Judgment

and the accrued interest and alimony. Edwin’s subsequent motions for reconsideration

before the District Court were denied, and his appeal and petition for reconsideration

before this Court were denied on the basis of res judicata. Jonas v. Jonas, 2010 MT

240N. Edwin also moved a New Jersey superior court to vacate the 2006 Judgment,

though because the issues Edwin raised in his motion were the same as those previously

decided by the court, the court denied his motion in September 2010 and held that Edwin

had committed “an abuse of the judicial system.”

¶9       Edwin then moved for relief from the 2006 Judgment under M. R. Civ. P. 60 in

Montana on May 26, 2011. After the issues were briefed, the District Court issued its

Order and Rationale on July 14, 2011, denying Edwin’s motion as being without merit.

The court reasoned that Montana courts give foreign judgments full faith and credit and

therefore the Montana court lacked jurisdiction to consider the motion. The court further

concluded that the issues had been fully and fairly litigated and decided in New Jersey,


                                        4
no New Jersey court had granted a stay against the judgment or relief from it, and res

judicata and the law of the case barred relitigation of the issues. The court also denied

Linda’s request for attorney fees. Edwin appeals, and Linda cross-appeals seeking costs,

expenses, and attorney fees from Edwin and his attorney.

                                STANDARD OF REVIEW

¶10    Generally, we review a district court’s ruling on a Rule 60 motion for an abuse of

discretion. Orcutt v. Orcutt, 2011 MT 107, ¶ 5, 360 Mont. 353, 253 P.3d 884. We

review a district court’s determination to award costs and fees under § 37-61-421, MCA,

for an abuse of discretion. Larchick v. Diocese of Great Falls-Billings, 2009 MT 175,

¶ 39, 350 Mont. 538, 208 P.3d 836.

                                       DISCUSSION

¶11    In seeking relief from the District Court’s denial of his Rule 60 motion, Edwin

argues that because the 2006 Judgment entered in New Jersey was entered by default, it is

not entitled to full faith and credit in Montana. We disagree. For one thing, Edwin’s

default in New Jersey was occasioned by his own misconduct, having disobeyed court

orders and refused to personally appear in court. Moreover, a default judgment from a

sister state is entitled to full faith and credit in Montana, as long as it was not obtained in

a manner rendering it invalid or unenforceable. Carr v. Bett, 1998 MT 266, ¶¶ 42, 45,

291 Mont. 326, 970 P.2d 1017. In Carr, we concluded that because the Wyoming court

where the default judgment was entered had refused to set it aside, the judgment was

entitled to full faith and credit in Montana. Carr, ¶¶ 47-48. The same conclusion is

compelled here. Edwin is precluded by principles of res judicata from repeating his


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challenges to New Jersey’s 2006 Judgment in the courts of Montana. We refuse to

indulge him further.

¶12    As to Issue Two, Linda asked the District Court to require Edwin and his attorney

to pay her costs, expenses, and attorney fees associated with this round of litigation

pursuant to § 37-61-421, MCA, claiming Edwin and his attorney multiplied these

proceedings unreasonably and vexatiously. The court denied her motion, but noted that

Edwin’s counsel was “cautioned that any further protraction of this several year,

multi-state litigation without good cause could result in a revisit to said statute with a

contrary result.” We conclude that the District Court’s caution was appropriate, and the

court did not abuse its discretion in denying Linda recovery of her costs, expenses, and

fees pursuant to § 37-61-421, MCA.

                                     CONCLUSION

¶13    We have determined to decide this case pursuant to Section I, Paragraph 3(d) of

our Internal Operating Rules, which provides for noncitable memorandum opinions. The

issues in this case are ones of judicial discretion and there clearly was not an abuse of

discretion.

¶14    We therefore affirm the judgment of the District Court.



                                                       /S/ PATRICIA COTTER




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We concur:


/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS
/S/ JIM RICE




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