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                                                               No. 99-571

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                            2000 MT 197N

                                                     IN RE THE MARRIAGE

                                                        MARIA T. JENSEN,

                                                    Petitioner and Respondent,

                                                                     and

                                                        ALFRED J. JENSEN,

                                                    Respondent and Appellant.

                             APPEAL FROM: District Court of the First Judicial District,

                                          In and for the County of Lewis and Clark,

                                   The Honorable Thomas C. Honzel, Judge presiding.

                                                    COUNSEL OF RECORD:

                                                             For Appellant:

                           Ronald F. Waterman; Gough, Shanahan, Johnson & Waterman,

                                                           Helena, Montana

                                                            For Respondent:

                                Robert T. Cummins, Attorney at Law, Helena, Montana

                                             Submitted on Briefs: March 16, 2000

                                                       Decided: July 18, 2000


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                                                                    Filed:

                                    __________________________________________

                                                                    Clerk

Justice Karla M. Gray delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating
Rules, the following decision shall not be cited as precedent but shall be filed as a public
document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number, and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.

¶2 Alfred J. Jensen (Alfred) appeals from the Findings of Fact, Conclusions of Law and
Decree of Dissolution entered by the First Judicial District Court, Lewis and Clark
County, after entry of his default. We vacate and remand.

                                                           BACKGROUND

¶3 Alfred and Maria T. Jensen (Maria) were married on July 12, 1992. On July 9, 1999,
Maria petitioned the District Court for dissolution of the parties' marriage, proposed a
distribution of the parties' assets and liabilities, and requested maintenance. On the same
day, she obtained an order scheduling a hearing on August 11, 1999, for Alfred to show
cause why he should not be ordered to pay temporary maintenance, continue to carry
Maria on his health insurance and pay Maria's attorney fees and costs in the action.

¶4 Alfred was served with a summons, the petition and the order to show cause on July 12,
1999. He did not appear in the action within 20 days.

¶5 At Maria's request and pursuant to Rule 55(a), M.R.Civ.P., the Clerk of the District
Court entered a default against Alfred on August 4, 1999. On August 9, 1999, after Maria
presented evidence in support of her petition, the District Court observed that Alfred's
default had been taken and entered its Findings of Fact, Conclusions of Law, and Decree
of Dissolution (Default Judgment) dissolving the marriage and ordering maintenance and
division of the marital estate as requested by Maria. Alfred was served with notice of entry
later that day.


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¶6 Alfred apparently committed suicide the following day and his heirs found the Default
Judgment in his personal effects. Counsel for Alfred subsequently filed a Notice of
Appearance and Alfred's personal representative filed a Notice of Appeal from the Default
Judgment.

                                                             DISCUSSION

¶7 Should the Default Judgment be set aside?

¶8 A district court may set aside an entry of default for "good cause shown" and a
judgment by default in accordance with Rule 60(b), M.R.Civ.P. Rule 55(c), M.R.Civ.P. In
the usual case involving a default or default judgment, this Court reviews a district court's
denial of a motion to set aside. See, e.g., In re Marriage of Martin (1994), 265 Mont. 95,
99, 874 P.2d 1219, 1222; Falcon v. Faulkner (1995), 273 Mont. 327, 330, 903 P.2d 197,
199.

¶9 In this case, however, Alfred did not move to set aside the entry of default under Rule
55(c), M.R.Civ.P., or for relief from the Default Judgment under Rule 60(b), M.R.Civ.P.
Instead, he contends on appeal that the Default Judgment should be set aside because
Maria's counsel engaged in "sharp practices" which lulled Alfred into inaction. Thus, this
case does not involve a denial of a motion to set aside. Here, the only action taken by the
District Court was the entry of the Default Judgment. In such a case, we need only
determine whether the proper procedures for entry of a judgment by default were
followed. See Northwest Farm Credit Services v. Lund (1992), 255 Mont. 114, 119, 841
P.2d 490, 493 (citation omitted).

¶10 Rule 55(b)(2), M.R.Civ.P., governs entry of judgment by default by the district courts.
In all cases in which the claim is not for a sum certain or capable of being made certain by
computation,

        the party entitled to a judgment by default shall apply to the court therefor . . . . If
        the party against whom judgment by default is sought has appeared in the action, the
        party . . . shall be served with written notice of the application for judgment at least
        3 days prior to the hearing on such application. If, in order to enable the court to
        enter judgment . . ., it is necessary to take an account . . . or to establish the truth of
        any averment by evidence . . ., the court may conduct such hearings . . . as it deems
        necessary and proper . . . .


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Rule 55(b)(2), M.R.Civ.P.

¶11 The first requirement for entry of a judgment by default under Rule 55(b)(2) is that the
party apply for such a judgment. In addition, Rule 55(c), M.R.Civ.P., provides that "no
default judgment shall be entered against any party, except upon application of the
opposing party." (Emphasis added.) The record in this case does not contain an application
by Maria for a default judgment.

¶12 In both Johnson v. Murray (1982), 201 Mont. 495, 503, 656 P.2d 170, 174, and
Northwest Farm Credit Services, 255 Mont. at 120, 841 P.2d at 494, we determined the
district court acted properly when it entered judgment by default. Those cases are factually
dissimilar from the present case, however. There, the plaintiffs applied--or moved--for
judgment by default under Rule 55(b)(2), M.R.Civ.P., and as required by Rule 55(c), M.R.
Civ.P. See Johnson, 201 Mont. at 503, 656 P.2d at 174; Northwest Farm Credit Services,
255 Mont. at 120, 841 P.2d at 494.

¶13 Maria's counsel having failed to comply with the foundational procedural requirement
for a judgment by default, Rule 55(c) precluded the entry of such a judgment. We
conclude, therefore, that the District Court improperly entered the Default Judgment.

¶14 The Default Judgment is vacated and this case is remanded for further proceedings.

                                                     /S/ KARLA M. GRAY

                                                               We concur:

                                                        /S/ J. A. TURNAGE

                                                    /S/ JAMES C. NELSON

                                                         /S/ JIM REGNIER

                                                /S/ WILLIAM E. HUNT, SR.




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