                                   NO. 8 4 - 1 8 5
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        1984




IN RE THE MARRIAGE OF
GEORGE R. WOOLSEY,
                Petitioner and Respondent,
       and
GERTRUDE JOSUCKS WOOLSEY,
                Respondent and Appellant.




APPEAL FROM:    District Court of the Fourth Judicial District,
                In and for the County of Missoul-a,
                The Honorable John S. Henson, Judge presiding.


COUNSEL OF RECORD:

      For Appellant:
                Morales   &   Volinkay; Richard Volinkaty, Missoula,
                Montana

       For Respondent:
                Jeffrey H. Langton, Hamilton, Montana




                                       Submitted on Briefs: Oct. 4,       1984

                                          Decided: December 13, 1 9 8 4




                                                     ' I .
                          2z *
                           2Y               ,dd
Mr. Justice John C.           Sheehy delivered the Opinion of the
Court.


       Ernestine Woolsey Miller, as personal representative of
her mother's estate, appeals from the order of the District
Court, Fourth Judicial District, Missoula County, refusing to
reopen      and     moc7ify   a    1976    marital    dissolution    decree
terminating the marriage of George and Gertrude Woolsey.
       We affirm the order of the District Court.
       The facts are unique.          George and Gertrude were married
in Bellefield, North Dakota on November 29, 1945.                They moved
to a small farm in the Bitteroot Valley near Stevensville,
Montana.           The couple adopted two children, Clayton and
Ernestine.         George worked on the farm and Gertrude taught
school.       Gertrude contributed her earnings and her services
to the farm and family.              The title to the family farm was
held by George and Gertrude as joint tenants with right of
survivorship.
       In   July     1975, Gertrude        suddenly   vanished    from   the
Stevensville area without notice or word to George or other
family members.        Her whereabouts since are completely unknown
except that George has testified that he received a telephone
call    from      Gertrude    in   September or October      1975, which
prompted him to travel by bus to Chicago, Illinois, in search
of his wife.          George testified that after he arrived in
Chicago, he talked to Gertrude twice in the bus depot and in
one conversation, Gertrude told him she was not coming home
and    that    he    could    keep   all   of   the   couple's   property.
Inconsistencies in his testimony regarding the 1975 Chicago
trip were shown on his cross-examination.
     On March     30,   1976, George filed a petition         in the
Missoula    County    District   Court    for   dissolution   of    his
marriage to Gertrude.      In his complaint, he alleged that he
d.id not request the assistance of the court in any division
of real and personal property which may have been acquired
during the marriage.
     On    the   allegation   that   Gertrude's    whereabouts     were
unknown, and the return of the sheriff of Ravalli County that
she could not be found in that county, the District Court
ordered    service of   summons upon Gertrude by publication,
which was duly carried out.       On June 10, 1..976, the District
Court entered its decree of dissolution of the marriage
between the parties, decreeing with respect to the marital
property as follows:
     "2. That the settlement of the ownership of real
     and personal property has been made between the
     parties and the Court makes no order with respect
     thereto. "
     Thus, following the decree of dissolution, the title to
the real estate of the parties remained in joint tenancy with
right of survivorship, and the husband took possession of the
personal property of the parties.
     On June 3, 1983, George commenced a quiet title action
in Ravalli County District Court naming Gertrude, the two
adopted    children   Ernestine and      Clayton Woolsey, and. a]-1
persons unknown as defendants.       The object of the quiet title
action is to quiet the title in George to the real property,
and also to certain United States war bonds, automobiles, and.
Gertrude's interest in a teacher's retirement plan.
     In September 1983, Ernestine commenced proceedings in
the Missoula County District Court in which it was determined
that her mother Gertrude was presumed dead, she having been
missing     for      some   seven      years.     Ernestine was          appointed
personal representative of Gertrude's estate.                       As personal
representative, Ernestine              filed a motion        in the marriage
dissolution action between George and Gertrude to reopen and
modify    the     decree    of    dissolution      regarding       the   property
disposition.
     The basis of Ernestine's motion to reopen the marriage
dissolution decree is that the representations of George to
the effect that the parties had                   mutually      adjusted     their
rights to their property was fraudulent, and that it was the
mandatory      duty of the District Court at the time of the
dissolution       to    distribute equitably         the marital         property
between the parties.
     George filed a motion in the marriage dissolution cause
to   quash      or     dismiss    Ernestine's       motion    to    reopen     the
dissolution decree.          On January 11, 1-984, the District Court
granted the motion to quash or dismiss the motion to reopen,
holding     that     Ernestine's motion was           untimely      under     Rule
60(b) (3), M.R.Civ.P.,           and    that because      she had        chosen a
remedy, she could not bring an independent action to set
aside    the    marital     dissolution decree under               the   residual
clause of Rule 60(b), M.R.Civ.P.
     Section 40-4-202, MCA, provides that in a proceeding for
dissolution of marriage, the District Court, "shal.1                         ...
f j-nally, equitably          apportion         between   the      parties     the
properties and assets belonging to either or both                    . . ."    We
have stated that this language of the statute is a mandate to
the District Court.              In Re Marriage of Flair            (1977), 178
Mont. 220, 583 P.2d 403, 405.              We have also said that before
a determination be made as to dividing the property, there
must be      a determination of the net worth of the marital
estate.        Hamilton v. Hamilton (1-980), 186 Mont. 282, 607 P.2d
102, 103; Peterson          Tr.   Peterson (1981), 195 Mont. 157, 636
P.2d 8 2 1 ,    824.     It is petitioner's contention that the court
failed in a mandatory duty respecting the property and as
such the court having jurisdiction of the dissolution must
proceed now to determine between the parties their rights to
the marital property.
       Section 40-4-208 (3), MCA, states that the provisions as
to a decree as to property disposition may not be revoked or
modified by a court except upon the written consent of the
parties, or "if the court finds the existence of conditions
that justify the reopening of a judgment under the laws of
this state."           Section 40-1-105, MCA, makes the Montana Rules
of Civil Procedure applicable to all proceedings relating to
marital        dissolutions.       Therefore, Rule   60 (b), M.R.Civ.P.
governs when and if a property disposition may be revoked,
reopened or modified.             Rule 60 (b) (3), limits the right of a
court to relieve a party from a final judgment on the basis
of intrinsic or extrinsic fraud to a motion made not more
than 60 days after the judgment has been taken or entered.
On   that basis, the District Court held              that Ernestine's
motion to reopen the decree of dissolution was untimely.
There    is no         attack by    Ernestine   in this case that the
District Court had no personal jurisdiction of Gertrude in
order to render judgment in the marital dissolution cause.
       The critical point in this lawsuit is that the marital
dissolution        decree, as between       George   and   Gertrude, had
become final.          No appeal was taken by Gertrude from the final
judgment.        A district court has no jurisdictior, to allow a
defaulting party after publication of summons to appear in
the same action under Rule 60(b) more than 60 days after
rendition of judgment except to set aside a iudgment und.er
the residual clause of Rule 60(b).          This is so even though
the court here admittedly failed in its mand-atory duty to
apportion equitably the marital property:
       "Under the Uniform Marriage and Divorce Act,
       section 40-4-201.(2), MCA, it was the duty of the
       court to inquire into the conscionability of the
       property settlement before it was approved, or it
       was the duty of the wife to ask the court to
       inquire into the conscionability of the decree
       before it was final ly approved. When neither the
       court nor the wife did this, this issue became
       final when the appeal time expired. The wife had
       no right six years later to attempt to relitigate
       this issue which the law requires to be decided
       before the entry of the decree if either the court
       or one of the parties questions the conscionahility
       of the decree.     R.es judicata clearly bars this
       claim  ...    Res judicata applies to issues that
       have been raised and decided, and to those that
       should have been raised and decided, and which are
       necessarily included in a final judgment." Hadford
       v. Hadford (Mont. 1981), 633 P.2d 1181, 1184, 38
       St.Rep. 1308.
       We   iterated. this   proposition    in   Marriage   of   Lance
(1981), 195 Mont. 176, 635 P.2d 571, 580-581:
       "It is too late now for him [Lance] to attack the
       decree on the ground that the District Court had
       failed to determine the net worth of the parties,
       or abused its discretion in failing to determine
       the value of each asset, or committed error in
       sawarding custody of the minor children, or in
       setting forth visitation rights, or in granting
       spousal maintenance. John not having appealed from
       the final decree in timely fashion, the decree has
       become conclusive as to all issues raised by the
       pleadings actually litigated and adjudged that is
       shown on the face of the decree and necessarily
       determined in order to reach the conclusion
       announced (citing authority) " .
       The right of Ernestine as personal representative of the
estate of her deceased mother to move the court for relief
from    judgment entered     by   fraud   against the decedent     is
undoubted.     Gillen v. Gillen (1945), 11.7Mont. 496, 159 P.2d
511.    However, Ernestine's right in that regard is no greater
than the decedent herself could have exercised had she sought
the relief.
     The District Court determined tha.t beczuse Ernestine's
motion for relief was not timely under Rule 60(b) ( 3 ) , she had
chosen a remedy, and therefore could not proceed under the
resid.ua1 clause of Rule 60(b).     While t7 do not reach the
                                           re
question of the propriety of that position of the District
Court, i.t is nevertheless c1ea.r in this cause that Ernestine
may not bring her mother's case within the provisions of the
residual clause.
     In Peterson, v. Montana Ba.nk of Bozeman, et al.      (Mont.
1984),      7-
                    ,
              P.2d - 41 St.Rep. 1575, 1580, we said:
     "Rul-e 60 was adopted in the federal court system,
     and by us, in order that substantial justice might
     be accomp1.ished.   We find in Rule 60 (b) in the
     early part of its language, six different grounds
     upon which a court may relieve a party from a
     judgment, order or proceeding.        There is a
     stricture, however, in that the judgment, order or
     proceeding must be final, to justify relief under
     the six grounds then set out. However, Rule 60 (b)
     does not end there.    There is a residual clause
     which is a broad recognition of the power inherent
     to a court. It contains this provision:
     11 1
            ...
              This rule does not limit the power of the
     court to entertain an independent action to relieve
     a party from a judgment, order or proceeding, or to
     grant relief to a defendant not actually personally
     notified as may be required by law, or to set aside
     a judgment for fraud upon the court..'"
     With respect to reopening a judgment for fraud upon the
court, we have stated in Lance, 195 Mont. at 179, 180:
     "It is obvious that John's motion to reopen the
     decree, filed 1 1/2 years after the decree had been
     entered, is not timely as a 60 day motion under
     Rule 60 (b), M.R.Civ.P.  There a.re no time limits,
     however, to such motion if in essence the motion is
     one to reopen or vacate a judgment because of a
     fraud upon the court.          (Citing authority. 1
     Eowever the fraud, to constitute grounds for
     reopening the decree must be extrinsic, that is it
     must be such fraud as denied the adversary an
     opportunity to have a trial or to fully present his
     side of the case. (Citing authority.)
     "Extrinsic fraud   upon   the  court,  that  is
     representations or concealments made during the
     court proceedings, assuming they are false or
     fraudulent are nevertheless not grounds for
     reopening     a    decree    of   judgment.       (Citing
     authority. ) "
     Ernestine's motion      to   reopen the dissolution decree
necessarily   depends     upon    allege6   misrepresentations   or
concealments by George to the court prior to the entry of the
dissolution decree.      If Gertrude had appeared in the divorce
action, and    the     representations were   indeed   false, such
representations could have been contested by her.       As we have
stated, it is too late, once the jud-gmenthas become final,
for a defaulting party to raise issues of misrepresentations
which could have been contested in the cause prior to the
entry of the judgment from which relief is sought.
    Accordingly, we affirm the District Court.




We Concur:
