                             No. 95-009
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                1995


IN RE THE MARRIAGE OF
PATRICIA HALSE NORDBERG,
                                                        JUN 01 1995
           Petitioner and Appellant,

     and
DEAN V. NORDBERG,
           Respondent and Cross-Appellant.




APPEAL FROM:    District Court of the Fifth Judicial District,
                In and for the County of Madison,
                The Honorable Frank M. Davis, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
                Brenda R. Cole, Swandal, Douglass, Frazier & Cole,
                Livingston, Montana
           For Respondent:
                w. G. Gilbert, Jr., and W. G. Gilbert III,
                Attorneys at Law, Dillon, Montana


                              Submitted on Briefs:       April 27, 1995
                                             Decided:    June 1, 1995

Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
       The parties appeal and cross-appeal an order of the District

Court for the Fifth Judicial District, Madison County.                      In that

order,    the court entered judgment for a sum due and owing based

upon a previous decree of dissolution of marriage.                  We reverse and

remand.

       The dispositive question is whether the District Court denied

Dean     V.   Nordberg   due    process       by   entering    judgment    after   an

"informal scheduling conference."              Because we answer that question

in the affirmative, we do not reach the issues of whether Patricia

Halse Nordberg should have been awarded interest on the judgment

and costs      of a   previous appeal or whether the               court   erred   ln

failing to enforce portions of the 1987 judgment in favor of Dean.

       The parties married each other twice.                  Their first marriage

was dissolved in 1987.         The 1987 decree of dissolution incorporated

a property settlement agreement requiring Dean to pay Patricia

$25,000 one year from the date of the agreement and $25,000 two

years from the date of the agreement,                for her interest in ranch

assets acquired during the marriage.
       Five months after their 1987 dissolution, Dean and Patricia

remarried.      Their second marriage was dissolved in 1993.                As part
of the second decree of dissolution, the District Court declared

null and void the judgment entered in the 1987 dissolution.

       Patricia appealed the second decree of dissolution.                    In re

Marriage of Nordberg       (1994),   265 Mont. 352,           877 P.2d 987.    This

Court reversed, and remanded to the District Court to reinstate the


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1987 judgment and for further proceedings to determine the balance

Dean owed Patricia under that judgment.      Nordberg, 877 P.2d at 992.

        Patricia then filed with the District Court a Memorandum of

Costs and Disbursements for the appeal.       Dean objected and filed a

Motion to Re-tax Costs.

        In an October 18, 1994 order, the court set up a conference

call.     The order stated, in its entirety:

             The Court hereby schedules a Court         counsel
        conference to address the format for the disposition of
        all pending mattes [sic] in this cause for Tuesday,
        November 8, 1994 at 1:30 pm.

             The conference shall be by telephone to the Dillon
        office of the Judge (406/683-5841), the call to be
        initiated by counsel for PATRICIA.

             DATED this 18 of October, 1994.

                                         /s/ Frank M. Davis
                                           District Judge


                                 COMMENT

             The Court notes that November 8th is Election day,
        but there is no reason that an informal scheduling
        conference cannot be conducted on that day after Court
        and counsel have discharged their civic duty at the
        polls.

             Since this case seems destined to go on in perpetu-
        ity, at what must be a staggering cost, the Court makes
        this one last appeal for compromise and settlement. The
        alternative is recusal and a new judge.   If this occurs
        then the case will be prolonged for months, perhaps
        years.
             1'm perplexed that one or both parties didn 1 t timely
        substitute me after remand!      In any case voluntary
        recusal is now the only option, but we will discuss it on
        Election day.
                                             /s/ Frank M. Davis



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        During the November 8 conference call,       the court apparently

asked Patricia to submit her calculation of the amount still due on

Dean's obligation to her under the 1987 judgment.         The calculation

which Patricia subsequently submitted showed that as of November 8,

1994,    Dean owed her   $12,406.84       in judgment monies    and accrued

interest.     Patricia provided a copy of her calculation to Dean's

counsel.

        On November 14, 1994, without holding any further proceedings,

the court granted Patricia a money judgment against Dean,            "in the

amount of $10,000, with interest thereon at the legal rate from

this date."      The court stayed execution of the judgment for six

days to allow Dean the opportunity to appeal, and ordered that each

party would be responsible for its own costs.           The Court denied

Patricia's memorandum of costs.

        Patricia appeals and Dean cross-appeals.



        Did the District Court   deny Dean due       process by entering

judgment after an "informal scheduling conference"?

        Dean maintains he has made payments toward the 1987 judgment

which were not included In Patricia's calculations.            He points out

that he was not allowed an opportunity to present evidence on this

subject before the court issued its November 14, 1994 order.

        No person shall be deprived of property without due process of

law.    Art. II, Section 17, Mont. Const.

        "Due process of law" refers to and means certain funda-
        mental rights which our system of jurisprudence has
        always recognized, that is, of requiring notice to be


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                                                                                    ...


       given and a hearing had before property may be taken, or
       impressed with a lien[.]

Great Northern Railway Co. v. Roosevelt County (1958), 134 Mont.

355, 362, 332 P.2d 501, 505.

       The     judgment          entered   against     Dean   on   November     14,         1994,

created a lien against his non-exempt Madison County property.                                See

§   25 - 9 - 3 01 (2),        MCA.   Therefore,       we   conclude   that    due         process

entitled      him        to    notice   and   a   hearing prior       to   entry of          that

judgment.

       Even if we were to construe the November 8 telephone confer-

ence call as a hearing for purposes of due process, the October 18

order set forth above did not provide notice that the conference

call might result in a lien against Dean's property.                         In no way did

it provide notice that Dean should prepare to set forth, during the

conference call, evidence of his payments on the 1987 judgment.

       Patricia argues that calculation of the amount Dean owed her

under the 1987 decree of dissolution may be accomplished simply by

looking at the record, so that no hearing was required.                         She cites

Young v. Flathead County (1990), 241 Mont. 223, 786 P.2d 658, for

the proposition that a district court is not required to conduct an

evidentiary hearing in a matter remanded from this Court.                                    The

principle set forth in Young was not that broad.                             Thi s Court's

holding in Young was that given the terms under which that case was

remanded, no further evidentiary hearing was required.                         Young, 786

P.2d at 661.

       Patricia contends that,                on remand,      the District Court was

precluded from considering payments which Dean asserts went toward

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the 1987 judgment.        Her contention is apparently based upon this

Court's statement that "according to the record, Dean still owes

for this [1987]       judgment."    Nordberg, 877 P.2d at 990.

      The record before this Court on the first                      appeal did not

establish that the 1987 judgment had been satisfied.                   Although the

amount due from Dean to Patricia under that judgment was a matter

of   record,   over    seven years         had   passed    between    the    entry    of

judgment   and   the     November     8,    1994   conference     call.        It    was

undisputed that some payment had been made in the interim.                           We

directed "further proceedings to determine the balance owed to

Patricia from the        judgment."        Nordberg,      877 P. 2d at      992.     The

amount remaining due on the 1987 judgment was clearly a subject

upon which the court should obtain evidence, given the terms under

which this case was remanded.

      Dean was not given any opportunity to respond to Patricia's

calculation of the amount remaining due on the 1987 judgment.                        We

conclude that due process required that Dean be given notice and an

opportunity to present evidence of his payments toward the 1987

judgment before a new judgment was entered against him.

      We reverse and remand this action for                  further proceedings
consistent with this opinion.
                 . .'

We concur:




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