NO. 85-420
IN THE SUPREME COURT OF THE STATE GF MONTANA

1986

IN RE THE MARRIAGE OF
LOIS MARIE KRAUT,

Petiti0ner and Appellant,
and
MAURICE RAYMOND KRAUT,

Resp0ndent and ReSp0ndent.

APPEAL FROM: District C0urt of the First Judicial DiStrict,
In and for the C0unty of Lewis & C1ark,
The Hon0rable Mark Sullivan, Judge preSiding.

COUNSEL OF RECORD:
F0r Appellant:
HarriS0n, Yeshe & Thweatt; Har0ld H. Harris0n, Helena,

Montana

For Resp0ndent:

Smith Law Firm; Rebecca Smith, Helena, M0ntana

Submitted on Briefs: Dec. 5, 1985

DeCided: February ZO, 1980

Filed: _M
`z"‘f;li 211 ;;:`f;é~éz,

  

Clerk

Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.

This divorce case is before the Court for the second
time. The first time the case was here, we affirmed the
District Court's denial of wife's Rule 60(b), M.R.Civ.P.,
motion to vacate a dissolution of marriage order. In Re the
Marriage of Kraut (l985), 696 P.2d 98l, 42 St.Rep. 268. We
held that the judgment dissolving the marriage was not void
and therefore could not be vacated pursuant to Rule 60(b).
§£aEt, 696 P.2d at 983. We suggested, however, that the
dissolution order itself could be reviewed by this Court only
after Rule 54(b), M.R.Civ.P., certification. §r§u§, 696 P.2d
at 983. Wife obtained Rule 54(b) certification of the disso-
lution order from the District Court and now appeals.

The issue on appeal is whether or not an order of
dissolution rendered without hearing should be set aside.
Because the underlying dispute here concerns the effective
date of dissolution for purposes of determining marital
property, we will also consider whether or not the dissolu-
tion order was effective when issued prior to its Rule 54(b),
certification.

Wife filed a petition for dissolution of marriage in
November l978. Husband immediately filed. a response and
counter-petition. Each party alleged in their petitions and
stipulated in the January 2l, l980, pretrial order that the
marriage was irretrievably broken. Husband moved for summary
judgment of dissolution. On January 26, l98l, the District
Court found the marriage irretrievably broken, based on the
pleadings, and granted summary judgment on the dissolution
issue. The issues of maintenance, custody, support, attorney

fees and costs were reserved and remain undecided n0w.

Wife moved to vacate the 1981 summary judgment on April
5, l984. This motion was denied by the District Court and we
affirmed the denial in §£§ut, supra. On June 28, l985, wife
obtained Rule 54(b) certification of the dissolution order
and now appeals the issuance of that order to this Court.

In the interim, on July 2, l984, wife remarried.

The last time we considered this dissolution order we
determined that the order was premature because there was no
hearing on whether or not the marriage was irretrievably
broken as required by § 40-4-l07, MCA. §£au§, supra. We
further held that the premature judgment was voidable rather
than void. Wife now argues that the voidable judgment must
be set aside because it was premature. The argument is
circular and unpersuasive.

A similar issue was before this Court in Interstate
Counseling Service v. Emeline (l964), 144 Mont. 409, 396 P.2d
727. In that case, a default judgment had been entered
without an affidavit of amount due even though the affidavit
was required by Rule 55(b), M.R.Civ.P. The appellant moved
to set aside the judgment on the sole ground that the affida-
vit had been omitted. We held that the judgment was void-
able, but that we required additional reason to set the
judgment aside. Our refusal to set the judgment aside was
the result of our application of Rule 6l, M.R.Civ.P. We will
now apply Rule 6l, M.R.Civ.P., to the facts of this instant
case.

Rule 6l, M.R.Civ.P., requires us to "disregard. any
error or defect in the proceedings which does not affect the
substantial rights of the parties." Wife here has not shown

us where she has been denied substantial rights. In fact,

she has provided us with no more reason to set aside the
judgment than that the judgment was premature.

Wife points to several opinions by this Court where we
have set aside judgments upon a showing that they were prema-
turely entered. See Sowerwine v. Sowerwine (l965), 145 Mont.
8l, 399 P.2d 233; Paramount Publix Corporation (1933), 93
Mont. 340, 19 P.2d 223; and Taylor v. Southwick (1927), 78
Mont. 329, 253 P. 889. Each of these cases involve default
judgments where the judgment was entered either before the
allotted time to answer or amend had passed or in spite of
the fact that the complaint had been answered properly. The
judgments were thus entered prematurely, and we required no
additional reason to set them aside. However, in each of
these cases the showing that the judgments were entered
prematurely also showed that a party was denied the right to
assert its case to the court through pleadings, That denial
of rights was sufficient reason to set aside the voidable
judgments in accordance with Rule 61, M.R.Civ.P., and our

holding in Interstate Counseling, supra.

The instant case is different. The wife has not been
denied her right to plead or have her pleadings heard.
Indeed, the summary judgment was in accordance with her
pleadings, We now hold that the fact that a summary judgment
of dissolution was premature for want of hearing is insuffi-
cient reason to set aside the judgment in this case. Because
wife has offered us no more reason than that here, the judg-
ment stands.

There is another issue lurking in appellant's briefs
that we must consider in order that the District Court can
determine marital property in the collateral pr0ceedings.

Wife argues that the dissolution order was not effective

until the final entry of judgment pursuant to Rule 54(b),
M.R.Civ.P. If we agreed, the date of dissolution would be
June 28, l985, when the dissolution order was certified,
instead of January 26, 1981, when the order was originally
entered. Howeyer, we do not agree.

Wife points to the language of § 40-4-108, MCA, and the
Commissioner's Comment to this statute.

Section 40-4-108, MCA, states:

A decree of dissolution of marriage or
of legal separation is final when en-
tered, subject to the right of appeal.
An appeal from the decree of dissolution
that does not challenge the finding that
the marriage is irretrievably broken
does not delay the finality of the
provision of the decree which dissolves
the marriage beyond the time for appeal-
ing from the provision, and either of
the parties may remarry pending appeal.

The Commissioner's Comment to the foregoing section
states:

Subsection (a)(l) abolishes interlocuto-
ry periods in those states which have
them. fha decree §§ dissolution or
separation will. b§_ effective when _§n-
tered, subject to the right of appeal.
The second sentence of subsection (a)(1)
is intended to authorize an appeal from
a decree of dissolution which does not
challenge the decree insofar as it is
based on a finding that the marriage is
irretrievably broken. In such cases,
either party is free §§ remarry §§ soon
as the time for taking appeal has §§-
pired, despite the fact that an appeal
which does not challenge the dissolution
may be pending. [Emphasis added.]

Wife then argues that according to Kraut, supra, the dissolu-
tion and judgment was not subject to appeal until after
certification under Rule 54(b), and that the judgment was
therefore ineffective until its certification. We note that
this interpretation would render wife a bigamist, because she

remarried before she certified the decree.

However, wife's interpretation is incorrect. ln §£aut
we only held that we could not hear the appeal until the
order was certified pursuant to Rule 54(b). By § 40-4-108,
MCA, the order was subject to appeal as soon as it was origi-
nally entered. The fact that we would not hear the appeal
until the order was certified does not mean the order was not
subject to appeal.

we interpret the above language from § 40-4-108, MCA,
and its commentary to delay the effectiveness of decrees of
dissolution only for appeals that challenge the finding that
the marriage is irretrievably broken. The finding by the
District Court that the marriage was irretrievably broken has
never been challenged in this case. Only the procedure has
been challenged on this appeal. Therefore, by the language
of § 40-4-108, MCA, and the Commissioner's Comment to the
section, the decree of dissolution was effective on January
26, l98l, when it was originally entered.

The District Court is now directed. to continue the

divorce proceedings in accordance with this/:pinion/

Chief Justice

 

C/

C§.»/i»» 6 /3¢»-/»»»»
Justice /

   

