                            NO.    90-376
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1991


JERRY R. BECHHOLD, Petitioner and Appellant,

                                                         APR 1 8 1991
MARC1 ANN CHACON, Respondent and Respondent.
                                                    CLERK OF SUPREME COURT
                                                       STATE OF


APPEAL FROM:   District Court of the Eighteenth Judicial District,
               In and for the County of Gallatin,
               The Honorable Mark P. Sullivan, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Jerry R. Bechhold, Pro se
          For Respondent:
               Jon M. Hesse, Livingston, Montana



                                            Submitted: April 4, 1991
                                             Decided: April 18, 1991
Filed:



                              Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.
   Jerry R. Bechhold appeals from an order and judgment entered in
the District Court, Eighteenth Judicial District, Gallatin County,
dissolving the partiest marriage and granting Marci Chacon Bechhold
custody of the minor child. We reverse the District Court.
       The issue presented for review is whether the District Court
properly      set aside its earlier order dismissing the marital
dissolution proceeding before entering the dissolution decree.
       Appellant Jerry Bechhold initiated dissolution of marriage
proceedings on June 15, 1988. He obtained temporary custody of the
parties' minor child at that time. A hearing in the dissolution
matter was held on January 29, 1990. Temporary custody of the minor
child was transferred to the respondent, Marci Chacon, and all
other matters pertaining to the dissolution were taken under
advisement. At the time of the hearing, all parties had resided in
California in excess of six months.
       On January 31, 1990, Bechhold filed a motion to dismiss the
dissolution proceeding in Montana. In his supporting brief, he
stated that California was the proper forum under the Uniform Child
Custody Act, since the child had resided in California for more
than    six    months.   Bechhold   then   attempted   to   initiate   the
dissolution proceedings in California. His initial attempt was
unsuccessful. On February 23, 1990, the California court declined
to exercise jurisdiction while an action was still pending in
Montana.
     A brief in opposition to the motion to dismiss was filed by
Chacon on February 12, 1990. Chacon argued that Bechhold had chosen
the Montana forum, and only now wished to change it after receiving
an adverse ruling in the custody matter. On March 6, 1990, the
District Court ordered the case dismissed with prejudice.
     Chacon filed a motion to set aside the order to dismiss on
March 12, 1990. ~eanwhile,Bechhold informed the California court
on March 14, 1990, that the action had been dismissed in Montana.
Both parties attended the hearing in the California court on April
20, 1990.   Chacon appeared with her California counsel. At that
hearing, the court determined that the parties should share the
custody of the child. All other dissolution matters were continued
until June 11, 1990.
     Chacon s Montana counsel served notice on April 14, 1990, that
the hearing on the motion to set aside the order dismissing with
prejudice would take place on May 4, 1990. Bechhold did not
respond, and the telephone conference hearing was rescheduled for
May 7. Again, Bechhold did not respond, despite numerous attempts
to contact him by telephone and mail. On May 25, 1990, the District
Court granted Chaconls motion to set aside the order of March 6,
1990, dismissing the dissolution proceedings. The court then
entered Findings of Fact, ~onclusionsof Law, Dissolution Decree
and Judgment. The Judgment awarded sole custody of the child to
Chacon. This appeal resulted.
     Bechhold maintains that the District Court was without
jurisdiction to enter its Order and subsequent Findings of Fact,
Conclusions of Law and Judgment. He states that because the court
did not act on the March 12, 1990 motion to set aside the order of
dismissal for 74 days following its filing, it effectively denied
the motion, pursuant to Rule 60(c), M.R.Civ.P. Appellant argues
that the Order of dismissal with prejudice thereby remained in full
effect and   that jurisdiction was     irrevocably   lost once the
California court assumed jurisdiction.
     The basis on which the District Court set aside the March 6,
1990 Order is Rule 60, M.R.Civ.P, which allows for relief from an
order. Rule 60(b) states in pertinent part:
     On motion or on such terms as are just, the court may
     relieve a party or his legal representative from a final
     judgment, order, or proceeding for the following reasons:
                             * * * *
     (3) fraud (whether heretofore denominated intrinsic or
     extrinsic), misrepresentation, or other misconduct of an
     adverse party; ...or (6) any other reason justifying
     relief from the operation of the judgment.
     Chacontsmotion was timely. However, Rule 60(c) states:
    Motions provided by subdivision (b) of this rule shall
    be determined within the times provided by Rule 59 in the
    case of motions for new trials and amendment of judgment
    and if the court shall fail to rule on the motion within
    the 45 day period, the motion shall be deemed denied.
The maximum amount of time the court is allowed to rule on such a
motion is 45 days from when it is filed. This Court has determined
that to be a mandatory time limit. Lerum v Logue, 198 Mont 194, 645


     In State Department of Revenue v Frank, 226 Mont 283, 735 P2d
290 (1987), this Court held that a district court had jurisdiction
after 48 days had elapsed between the motion for relief from
judgment and the hearing on the motion. In that case, the Court
stated:
     It is, however, provided in Rule 60(b) that the rule
          ' I . . .does not limit the power of a court to
          entertain an independent action to relieve a
          party from a judgment, order, or proceeding,
          or to grant relief to a defendant not actually
          personally notified as may be required by
          law..  ."
     The time limitation in Rule 60(c) must be read in light
     of the principle set out in Rule 60(b), which provides
     for such an independent action. The residual power of the
     District Court therein preserved is a complete
     reservation of the District Court's independent power.
     Its purpose is to protect equity by "not enforcing a
     judgment obtained against the public con~cience.'~ (Cites
     omitted). The residual power portion of Rule 60 (b) was
     enacted particularly to prevent an injustice. For that
     reason, we hold that Kenneth's motion to set aside
     enforcement of an unserved warrant of distraint was an
     independent action, and thus is not subject to the 45 day
     time limitation of Rule 60(c), M.R.Civ.P.
     This case        factually different from Frank. That case dealt
with a situation where the party was not given notice by being
personally served. In this case, Chacon asserts she was not served
with the motion to dismiss. However, Chacongscounsel responded to
Bechholdgs motion by filing a brief in opposition and did not
complain that proper service had not been made. The District Court
made its decision after both parties had briefed the matter.
Clearly there was notice. The exception in Frank would not,
therefore, apply in this case. The time limit set out in Rule 60(c)
would apply. The motion to set aside the earlier order was entered
on March 12, 1990. However, the Court failed to rule on the motion
for 73 days following its filing. This Court has stated that upon
the completion of the 45 day time limit, the motion is considered
denied and jurisdiction is lost over that issue. In re Marriage of
Miller, 238 Mont 108, 776 P2d 1218 (1989). In this case, the court
lost jurisdiction by April 26, 1990, well before the time for the
first hearing on the motion to set aside.
     We find that the District Court was without jurisdiction to
set aside the Order of dismissal dated March 6, 1990, and therefore
was without jurisdiction to enter the Dissolution, Findings of Fact
and Conclusions of Law of May 25, 1990. For these reasons we
reverse the judgment entered for Chacon on May 25, 1990, and vacate
the Findings, Conclusions and Judgment of that date, and reinstate
the order of dismissal dated March 6, 1990.
We concur:
