                                          No. 02-768

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2003 MT 145


IN RE THE SUPPORT OBLIGATION OF
MARK T. McGURRAN,

              Obligor and Respondent,

DEBRA L. UDELHOVEN,

              Petitioner and Appellant,

         v.

MONTANA DEPARTMENT OF PUBLIC HEALTH
AND HUMAN SERVICES, CHILD SUPPORT
ENFORCEMENT DIVISION,

              Respondent and Respondent.



APPEAL FROM:         District Court of the First Judicial District,
                     In and for the County of Lewis and Clark, Cause No. ADR 2002-352,
                     The Honorable Dorothy McCarter, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     Charles Frederick Unmack; Hubble, Ridgeway, Unmack & Westveer,
                     Stanford, Montana

              For Respondent:

                     David N. Hull, Attorney at Law, Helena, Montana (for Mark McGurran)


                                                  Submitted on Briefs: March 20, 2003

                                                            Decided: May 20, 2003
Filed:

                     __________________________________________
                                       Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.


¶1     The First Judicial District Court, Lewis and Clark County, dismissed Debra L.

Udelhoven's petition for judicial review for lack of subject matter jurisdiction. Udelhoven

appeals. We reverse and remand.

¶2     The issue is whether the District Court violated Udelhoven's right to due process when

it dismissed her petition because she failed to comply with the service requirements of § 40-

5-253(4), MCA.

¶3     This is not the first time Udelhoven and Mark T. McGurran have come before this

Court on matters relating to the support of their son. In 1999, we upheld the dismissal of

Udelhoven's petition for judicial review of an administrative child support order issued by

the Child Support Enforcement Division of the Montana Department of Public Health and

Human Services (CSED), on grounds that the petition was not timely filed in the district

court. In re McGurran, 1999 MT 192, 295 Mont. 357, 983 P.2d 968 (McGurran I).

¶4     In February of 2001, the CSED entered a "modification consent order" concerning

McGurran's child support obligation. Udelhoven was notified that she could challenge the

provisions of the order by requesting arbitration by April 2, 2001. She requested arbitration

and, on April 9, 2001, CSED denied her request on the basis that she had not timely filed it.

The notice of denial of her request for arbitration further stated "Pursuant to MCA Title 2,

Chapter 4, Part 7, you may file a Petition for Judicial Review of this final order within 30

days after service of this decision."


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¶5     On April 16, 2001, Udelhoven petitioned the Tenth Judicial District Court, Judith

Basin County, for judicial review. Udelhoven initially served her petition for judicial review

on CSED and on McGurran by mailing summons and copies of the petition to their attorneys

on April 17, 2001. McGurran refused to accept service by mail and his attorney sent

Udelhoven's attorney a letter arguing that McGurran was not a proper party to the

proceeding. At the same time, CSED moved to dismiss the petition on the basis that the

Tenth Judicial District Court was an incorrect venue. The district court granted CSED's

motion, and Udelhoven appealed. On appeal, we determined the Tenth Judicial District

Court was a proper place for trial and reversed and remanded for further proceedings. In re

McGurran, 2002 MT 144, 310 Mont. 268, 49 P.3d 626 (McGurran II).

¶6     After our June 27, 2002 opinion in McGurran II, Udelhoven had McGurran

personally served with a summons and copy of her petition on August 14, 2002. In

September of 2002, the parties stipulated to change venue to the First Judicial District Court,

Lewis and Clark County. McGurran then moved to dismiss Udelhoven's petition for judicial

review as to him, based on Udelhoven's failure to properly serve him pursuant to the

requirements of § 40-5-253(4), MCA, which requires that a petition for judicial review of

a CSED child support order must be served upon CSED and each party within 30 days after

the petition is filed. Udelhoven responded that she did not object to the dismissal of

McGurran from the action.

¶7     In ruling on McGurran's motion to dismiss, the District Court stated dismissing

McGurran from the action would result in "a singular prejudice to McGurran, and not to the

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other parties." The court then determined it did not have subject matter jurisdiction because

Udelhoven had not complied with the § 40-5-253(4), MCA, service requirements. It

reasoned that, pursuant to § 40-5-253(4), MCA, a district court does not obtain jurisdiction

until a petition for judicial review is served on all parties within 30 days after it is filed and

that, because Udelhoven filed her petition in the Tenth Judicial District Court on April 16,

2001, she needed to serve all parties no later than May 16, 2001. After stating that

McGurran was not personally served with a summons and copy of the petition until long

after the 30-day deadline, the District Court concluded it had no choice but to dismiss the

action for lack of subject matter jurisdiction. Udelhoven appeals from the District Court's

dismissal of her petition.

                                           Discussion

¶8     Did the District Court violate Udelhoven's right to due process when it dismissed her

petition because of her failure to comply with the service requirements of § 40-5-253(4),

MCA?

¶9     The standards applicable to this Court's review of a ruling on a motion to dismiss for

lack of subject matter jurisdiction which allegedly violates a party's constitutional right to

due process are set forth in Pickens v. Shelton-Thompson, 2000 MT 131, 300 Mont. 16, 3

P.3d 603:

               We review a district court's ruling on a motion to dismiss to determine
       whether the court abused its discretion. However, a court's determination that
       it lacked subject matter jurisdiction is a conclusion of law which we review to
       determine whether the court's interpretation of the law is correct. Moreover,


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       constitutional issues raise questions of law and our review of such questions
       is plenary.

Pickens, ¶ 7 (citations omitted).

¶10    Udelhoven analogizes her case to Pickens on both facts and the law. She urges that,

pursuant to Pickens, the District Court's order should be reversed.

¶11    In Pickens, child support obligor Pickens timely filed a petition for judicial review of

a CSED child support order and mailed copies of the petition to the obligee and to CSED.

CSED moved to dismiss for lack of jurisdiction because Pickens had failed to properly serve

the parties as required by § 40-5-253, MCA. Pickens, ¶ 4. The district court granted the

motion to dismiss, and Pickens appealed. Pickens, ¶ 6.

¶12    On appeal, we looked to the notice provisions in the administrative order. That order

informed Pickens that he had a right to petition for judicial review under MAPA. Pickens,

¶ 9. We pointed out that a petition for judicial review under MAPA (that is, under Title 2,

Chapter 4, Part 7, MCA) may be served by mailing copies of the petition to the agency and

other parties and "there is no requirement that a summons be issued and served in

conjunction with the petition." Pickens, ¶¶ 3, 10 (citation omitted). While recognizing that

the specific service provisions of § 40-5-253, MCA, prevail over the general service

provisions of MAPA, we held that, because the notice provided to Pickens implied that

MAPA service requirements applied, application of the more stringent § 40-5-253, MCA,

service requirements (requiring personal service with summons) would violate Pickens' right

to due process of law. Pickens, ¶ 21. We reasoned that Pickens' reliance on the misleading


                                              5
information given to him in the notice resulted in his failure to properly serve his petition for

judicial review and, ultimately, led to his being denied a meaningful opportunity to be heard.

Pickens, ¶ 19. Under those circumstances, we held that the notice provided did not meet due

process requirements. Pickens, ¶ 21. Consequently, we reversed the order of dismissal and

remanded for further proceedings on Pickens' petition for judicial review. Pickens, ¶ 23. On

the face of it, Pickens appears comparable to the present case.

¶13    Pickens was not cited or relied upon in the District Court, where McGurran argued

he was not a proper party to the proceedings and should be dismissed as a party. The District

Court's order dismissing Udelhoven's petition for judicial review thus went beyond the

remedy requested by McGurran. For that reason, it is appropriate to consider Pickens here.

¶14    McGurran first asserts that we should overrule Pickens because access to the court

system from an administrative ruling is not a constitutionally protected fundamental right to

which due process applies. He relies on Peterson v. Great Falls School Dist. (1989), 237

Mont. 376, 773 P.2d 316.

¶15    In Peterson, a school employee brought an action against her employer school district

for wrongful discharge. This Court upheld the district court's determination that the action

was barred by § 2-9-111, MCA, and cases interpreting that statute, on the basis of legislative

immunity. The Court also rejected the employee's claim that the statute was unconstitutional

because it violated her fundamental right to full legal redress. Peterson, 237 Mont. at 380,

773 P.2d at 318.



                                               6
¶16    Peterson has no application here. First, Peterson predates Pickens by many years.

Second, neither a due process issue nor a judicial review issue was addressed in Peterson.

We conclude McGurran's argument that Peterson provides a basis on which we should

overrule Pickens is without merit.

¶17    McGurran also claims that, by failing to exhaust her administrative remedies and

failing to file a timely request for arbitration, Udelhoven has not complied with MAPA or

the statutory requirements for judicial review of a CSED child support order. See §§ 2-4-

702(1)(a) and 40-5-253(1), MCA. He asserts that, where statutory conditions for jurisdiction

have not been met, the district court is powerless to review the agency decision and a defense

based on lack of subject matter jurisdiction may be raised at any time. We address these

contentions in turn.

¶18    McGurran argued in the Tenth Judicial District Court that Udelhoven failed to exhaust

her administrative remedies, but he did not cross-appeal that court's rejection of his

argument. By failing to cross-appeal the issue in McGurran II, McGurran has waived it.

¶19    The notice CSED provided to Udelhoven that she had a right to seek judicial review

contradicts McGurran's argument that there is no appealable final decision in a contested

case. In addition, because McGurran did not raise this argument in the District Court, we

decline to address it on appeal. See Pearson v. Virginia City Ranches Ass’n, 2000 MT 12,

¶ 57, 298 Mont. 52, ¶ 57, 993 P.2d 688, ¶ 57.

¶20    Finally, as to McGurran's statement that a jurisdictional argument may be raised at

any time, untimeliness of the request for arbitration would not be jurisdictional for purposes

                                              7
of seeking judicial review in the District Court; it would be jurisdictional only as to the

request for arbitration. Udelhoven's April 16, 2001 petition for judicial review was filed well

within the 30 days allowed after the April 9, 2001 CSED order.              Therefore, while

untimeliness of the request for arbitration ultimately may be a reason for the District Court

to affirm the denial of the arbitration request, it is not grounds for dismissal of Udelhoven's

petition for judicial review in the District Court on the basis of that court's lack of subject

matter jurisdiction.

¶21    Here, as in Pickens, CSED's notice to Udelhoven concerning her right to seek judicial

review implied that she could serve copies of her petition for judicial review pursuant to

MAPA standards. For purposes of service under MAPA, it is sufficient to mail copies of the

petition for judicial review to the parties and the agency. Sections 2-4-106 and -702, MCA;

Rule 5(b), M.R.Civ.P.; Hilands Golf Club v. Ashmore (1996), 277 Mont. 324, 332, 922 P.2d

469, 474. Therefore, Udelhoven's original mailing of a copy of her petition to McGurran's

attorney--which has not been challenged as untimely--was sufficient service upon McGurran.

¶22    Udelhoven's reliance on MAPA procedures was suggested by the language used in the

notice CSED gave her of her right to petition for judicial review. That reliance resulted in

her failure to properly serve her petition for judicial review and, ultimately, denial of a

meaningful opportunity to be heard. For those reasons, we conclude that Pickens is

controlling precedent here, and that dismissal of the petition for judicial review on the basis

of failure to follow the § 40-5-253(4), MCA, service requirements would violate Udelhoven's



                                              8
right to due process of law. Therefore, we hold that the District Court erred in dismissing

Udelhoven's petition for judicial review.

¶23    Reversed and remanded for further proceedings consistent with this Opinion.



                                                       /S/ KARLA M. GRAY


We concur:


/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ PATRICIA COTTER
/S/ JIM RICE




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