                                    No.    95-127
               IN THE SUPREMECOURT OF THE STATE OF MONTANA
                                          1995


IN RE THE MARRIAGE OF                                                3; 'y    c
CINDIE L. LOBERG,                                                    b. &.    "

               Co-Petitioner     and Respondent,
         and
CRAIG L. LOBERG,
               Co-Petitioner     and Appellant.



APPEAL FROM:         District  Court of the Tenth Judicial    District,
                     In and for the County of Fergus,
                     The Honorable John R. Christensen,    Judge presiding.


COUNSEL OF RECORD:
               For Appellant:
                     Jill Deann Miller;      Nye & Meyer,         Billings,
                     Montana

               For Respondent:
                     Jon A. Oldenburg,      Attorney     at Law, Lewistown,
                     Montana


                                     Submitted      on Briefs:        August      10, 1995
                                                       Decided:        September     8, 1995
Filed:
Justice      W. William              Leaphart          delivered            the Opinion              of the Court.
          Craig     L. Loberg          (Craig)          appeals          from the March 10, 1995 order
of the      Tenth         Judicial          District          Court,          Fergus     County,           denying           his
motion       to     reopen          the      August          6,      1993,       Judgment            and       Decree          of
Dissolution          between him and Cindie                         L.     [Lobergl      Drewry         (Cindie)            . We
affirm.
          The following              issues      are raised                on appeal:
       1.          Did the District                    Court        lack       jurisdiction             to     enter         the
Decree of          Dissolution?
       2.          Did the District                   Court        err     in ordering           temporary                 child
support?
       3.          Did the District                   Court        err     in making           the     child      support
retroactive?
          Craig     and Cindie            were married              on July       30, 1977.            Two sons,             now
ages 16 and 17,                   were born           of     the marriage.                On August              6,        1993,
Craig      and Cindie          met at the Fergus County Attorney's                                     office,         where
Cindie      was employed as a secretary,                             to discuss          child        custody,             child
support,          and property            division.            With the assistance                     of the County
Attorney,          Cindie         drafted      the divorce               papers        while     Craig         waited          in
the office.               That day,         the couple              jointly       presented            the papers              to
the District              Court     judge      for     his     signature.              The judge             asked Craig
and Cindie           if      they     wanted           a divorce              and they         responded              in     the
affirmative,              stating      that      it    was their              desire     and intent            to obtain
a divorce.           The district              judge         signed         the decree.
          The agreement             granted       joint        custody          of the two teenage boys to
Craig      and Cindie.              Craig     received             the family          home, and the majority
of the couple's               vehicles.               These assets              comprised        the bulk             of the
marital      estate.
          A hearing          was held         on September                 19, 1994,           to decide          Craig's
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motion     for        an Order           to Execute            Instruments,                   namely,       a quit         claim
deed for        the family              home, and to decide                        Cindie's         motions         to amend
the      Findings            of         Fact,         Conclusions                of        Law,       and         Decree       of
Dissolution.                Cindie        sought        to receive               her       share      of the proceeds
from     the     sale        of     a shotgun,               obtain         the        use of         a video           camera,
obtain     possession              of family            photos,           and receive              child         support      and
income tax            exemptions              for    the children.
         The court           found         the       issue      of        the     quit        claim        deed moot,          as
Cindie     executed           the instrument                   at the hearing.                      The court             stated
that     although           the video               camera mentioned                  at      the hearing           may     have
been property               of the family               corporation               where Craig              was employed,
Cindie     was entitled                  to     reasonable            use of            the      camera.           The court
ordered        that     Craig       pay child            support           pursuant           to the Montana Child
Support        Guidelines,              and that         Cindie           was entitled             to the income tax
exemptions            for     the       year         1994.          Craig        did       not     comply         with      this
order.         He did not provide                    Cindie      with        use of the camera and he did
not complete            the child              support        financial               affidavit.            As a result,
Cindie     filed        a Verified              Petition            for     an Order           to Show Cause.
         Pursuant           to the Verified                  Petition           for     an Order to Show Cause,
a hearing         was held            on February             15, 1995.                In the written               order      of
March     10,      1995,          the     court        found        that        Craig's          sale       of    the      video
camera was not an arms-length                             transaction,                  and was done to deprive
Cindie     of      the use of              the       camera.              Cindie        was awarded               $170.32      in
lost     wages and          mileage           for     the trip            she made to Circle,                     Montana to
pick     up the camera.                   The court           ordered           temporary           child         support      in
the amount of $150 per month,                            per child,                retroactive             from November

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15,      1994.            Permanent           child        support            calculations               were         to      be
determined           when the          court       was satisfied                 with       the        Child         Support
Enforcement              Division       Financial          Affidavits             to be submitted                     by the
parties.            Craig     filed      a Motion          for        Relief      in      the District                Court,
claiming          that     the portion           of the order               pertaining          to child             support
differed          from the court's              oral      ruling           of February         15, 1995.              On May

22,     1995,       a telephone              conference            call      was held          and the District
Court      issued         a Memorandum Order providing                           that      the District                 Court
would not enter               any further              orders       in this      matter         until         this      Court
has entered              a final      decision          regarding            the appellate               issues.
      1.  Did the District                             Court        lack     jurisdiction               to     enter         the
Decree of Dissolution?
          Craig's         voluntary          execution          of the dissolution                     agreement             and
appearance           at the August              6, 1993,            conference          subjected             him to the
court's           jurisdiction.                 Rule       4B(2),            M.R.Civ.P.,               provides             that
jurisdiction              may be acquired                 by the            voluntary          appearance              in     an
action      by any person.                   See also           Fonk v.        Ulsher          (19931,         260 Mont.
379,      383,      860 P.2d 145,             147.        Here,       Craig      signed         the Petition                 for
Dissolution              of Marriage           and voluntarily                 appeared           in     front        of     the
judge.           The general          rule      that     a voluntary            appearance              is sufficient
to confer          jurisdiction,              coupled with             the fact         that    this         practice          is

customary          in joint         petitions          for dissolution,                 subjects          Craig       to the
jurisdiction              of the court.
          On appeal,          Craig     further          raises       the question             of the twenty-day
waiting          period     which      is referenced                 in 55 40-4-105(3)                  and 40-4-130,
MCA.       The issue          of jurisdiction                   is separate            and distinct              from the
issue       of     the     twenty-day           waiting            period.        The twenty-day                     waiting
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period        provided             in     5 40-4-105(3),                          MCA, is          inapplicable                    in      the
instant       case.         The twenty-day                     period           applies          in the situation                    where
one party          files          the      dissolution                    action          and the          statute            provides
that      a decree          may not be entered                            until          twenty      days after               the date
of service.             Here,           the parties              filed          a joint          petition;              there       was no
party      to be served.                  A twenty-day                 waiting            period         is also           referenced
in § 40-4-130,              MCA, however,                     this     provision             is also            inapplicable                as
these       parties         do not            fit      within             the      requirements                 of      the      summary
dissolution            procedures.
          Craig        and         Cindie             were           co-petitioners                      in        the        original
proceeding,             and Craig               has enjoyed                     the       benefits            of     the      property
distribution             for       two years.                   He was awarded                     the     family           home, had
the      opportunity               to      sell         it,          and was awarded                       the        majority              of
vehicles          owned by              the         couple.            At         this      late        date,         it      would         be
unreasonable,               if     not     impossible,                    to restore               the parties                to        their
original          positions.                  Neither            Craig            nor      Cindie         allege            extrinsic
fraud,        thus,         to     reopen            this        judgment                two years              later         would         be
inequitable           and would undermine                            the finality                that     is fundamental                    to
the dissolution                  procedures.                  See In re Marriage                     of Hamilton                   (1992),
254 Mont.         31, 835 P.2d 702; Miller                                 v. Miller              (1980),          189 Mont.             356,
616 P.2d 313.
      2.          Did       the District                    Court         err       in ordering               temporary                 child
support?
          Temporary              orders       are       interlocutory                     actions         by the            court          and
generally             are        not       appealable.                          Rule        1,       M.R.App.P.                         Craig
mischaracterizes                    the        May 26,                1995,           Memorandum Order                          when        he
concludes         that       the order               converts          the temporary                    child        support            order
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into       a final           order.        Rather,             the     order      stays         the      action              in   the
District           Court      pending          this      appeal.
         We agree             with       the     District             Court      that          the     issue         of       child
support         should         have       been decided                 when the            original            decree             was
entered.            In       this     case,       however,             the     District              Court     must           still
consider           the       financial          affidavits              of     each party               and apply                 the
Uniform       Child          Support      Guidelines              to reach a final                   determination                    on
the     issue       of      child      support.             From its           March 10,              1995,         order,            it
appears         that        the District               Court      has "serious             questions                regarding
the     accuracy            of Respondent's                financial           affidavit."                   The District
Court       must         consider          these          questions            when       it         reaches             a    final
determination               on the issue               of child        support         in applying             the Uniform
Child        Support           Guidelines.                  This        determination                  is     within              the
discretion             of the District                 Court         and, unless          a judgment                is       final,
this       Court       is    without       jurisdiction                to hear          the appeal             and make a
determination.                  In re Marriage                 of Adams (1979),                   183 Mont.              26, 28,
598 P.2d 197,                198.        Because of our holding                         on issue             two,        we need
not     consider            issue     three.
         Affirmed.
         Pursuant            to Section           I,     Paragraph           3(c),      Montana Supreme Court
1988 Internal               Operating          Rules,          this    decision           shall        not be cited                   as
precedent          and shall          be published               by its       filing       as a public               document
with       the Clerk          of the Supreme Court                      and by a report                     of its           result
to Montana Law Week, State                             Reporter         and West Publishing                         Company.




                                                                 6
We concur:
