                            NO.    95-463
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1996




APPEAL FROM:   District Court of the Twenty-First Judicial
               District, In and for the County of Ravalli,
               The Honorable Jeffrey H. Langton, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Gary W. Wolfe and Michael Sol, Sol and Wolfe
               Law Firm, Missoula, Montana
          For Respondent:
               Patricia A. Sanders, Sanders and Heller,
               Hamilton, Montana


                              Submitted on Briefs:     April 18, 1996
                                            Decided:   May 14, 1996
Filed:
Justice Charles E. Erdmann delivered the opinion of the Court.
     Pursuant to Section I, Paragraph 3(c), Montana Supreme                 Court

1995 Internal Operating Rules, the following 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 State Reporter Publishing Company and West Publishing
Company.
     This is an appeal from a decision of the Twenty-First Judicial
District   Court,      Ravalli County,           setting   aside   its decree of
dissolution insofar as it              applies to allocation of property,
maintenance,   debts, attorney fees and costs.               We affirm.
     The dispositive issue on appeal is whether the District Court
erred in     setting    aside     its    decree     of dissolution based upon
Rule 60(b) (6), M.R.Civ.P.
                                         FACTS
     David and Theresa          met   in' California and lived together for
approximately nineteen years.            During the last ten of those years,
the couple lived in Montana in the state of common law marriage.
David was retired from a restaurant business which he had owned in
California and where Theresa had been employed.                      He kept the
franchise to the restaurant but sold the underlying property in
addition to the condo where he and Theresa had lived.                 With those
funds he purchased property in Montana where they built a home.
     Theresa was 45 years old at the time the District Court issued
its order.      She suffers from ataxia which is a progressively


                                           2
debilitating     hereditary       condition      with    no   known     cure.      She was
diagnosed with this condition shortly before she and David moved to

Montana.     Theresa is now confined to a wheelchair and unable to

move   about or care for herself.                She has been unable to read or
write for about two years.           She receives Social Security disability

benefits of $470 per month in addition to Medicaid coverage.

       In March 1994, David presented to Theresa a joint petition for

dissolution upon which she made her mark.                        The    petition   awarded
David all of the real and personal property and awarded Theresa her

personal    clothing       and   Social   Security       disability      benefits.     The

District Court held a hearing on April 6,                          1994,     where David
testified    that    the     agreed-upon     division      was    equitable.       At the

hearing,    David's attorney assured the court that Theresa was

satisfied with the distribution and also claimed that members of

her family had been coming in and taking items of personal

property.      The District Court granted the petition and entered a

decree.     Theresa claims she was not fully informed of the contents

of the joint petition until two months after the dissolution was

granted.

       Theresa      also    claims    that       while    she     was      aware of    the

dissolution,     she relied upon David's assurances that he would take

care of her for the rest of her life.                   Theresa remained with David

until July 15, 1994, when due to David's alleged neglect, she was
removed from their home by the Department of Family Services and

placed in an adult foster care facility.


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     Theresa filed a motion on February 7, 1995, to set aside the
District Court's April 11, 1994, decree based upon Rule 60(b) (3),
M.R.Civ.P.,    or in the alternative, Rule 60(b) (6), M.R.Civ.P.           The
District Court held a final hearing in the matter on July 13, 1995,
and granted Theresa's motion on August 1 based upon Rule 60(b) (6),
M.R.Civ.P.      From the court's setting aside of its decree of
dissolution,    David appeals.
                                 DISCUSSION
     Did the District Court err in setting aside its decree of
dissolution based upon Rule 60(b) (6), M.R.Civ.P.?
     Theresa moved the court to set aside its final judgment on the
joint petition on the grounds              set forth in Rule 60(b)         (3),
M.R.Civ.P.     (fraud),   and in     the     alternative   Rule   60 (b)   (6),

M.R.Civ.P. (other reasons justifying relief from operation of
judgment).     Rule 60(b), M.R.Civ.P., requires that a motion to set
aside a judgment for fraud, misrepresentation, or other misconduct
of an adverse party must be made within sixty days of notice of
judgment entry.     A motion to set aside a judgment for any other
reason justifying relief must be made within a reasonable time.
Rule 60(b), M.R.Civ.P.
     David opposed the Rule 60(b) (3), M.R.Civ.P., motion arguing
that sixty days had passed since the judgment was entered and
therefore the setting aside of a judgment based upon fraud is
precluded.     David further argued that the filing of Theresa's
motion pursuant to Rule 60(b) (6), M.R.Civ.P., ten months after the


                                     4
final judgment was entered into was unreasonable and therefore

precluded     as   well.      Theresa       dismissed    her    Rule   60(b) (3),
M.R.CiV.P.,    motion      in fraud but continued to claim that her

situation fell under the extraordinary circumstances standard in

Rule 60(b) (6), M.R.Civ.P.

     Pursuant to        Theresa's   motion       based   upon    extraordinary

circumstances,     the District Court found that:

           Husband failed to fully inform the Court of the
     severity of Wife's medical condition and her physical
     inability to read and write.      Furthermore, Wife has
     offered credible testimony that Husband misrepresented
     the contents of the joint petition to her and compounded
     the misrepresentation by leading her to believe he would
     continue to care and provide for her for the rest of her
     life.    Husband's denials of this testimony are not
     credible.   It further appears that Wife's sisnature was
     not properly acknowledged in the presence of a notary
     public.

     Based upon those findings, the court concluded that:
          Mrs. Heller's claim presents the extraordinary
     circumstances of Montana Rules of Civil         Procedure
     60(b) (6) as found in Marriacre of Tesch, 199 Mont. 240,
     648 P.2d 293, (1982).

          The Decree of Dissolution entered by this Court
     April 6, 1994, is inequitable and should be set aside
     insofar as it applies to allocating marital property,
     maintenance, debts, and attorney's fees and costs.

     We will review a district court's grant or denial of a motion
to set aside a final judgment for abuse of discretion.                     In re

Marriage of Castor (1991), 249 Mont. 495, 500, 817 P.2d 665, 668.

We will review a district court's interpretation of law underlying

the setting aside of a final judgment for its correctness.                 In re

Marriage of Miller (1995), 273 Mont. 286, 291, 902 P.2d 1019, 1021.


                                        5
         David avers that the court erred in setting aside the judgment
based upon extraordinary circumstances when Theresa's allegations
were     essentially         of   fraud   and    misrepresentation   (Rule 60(b) (3),
M.R.Civ.P.) .              A party cannot qualify for relief under Rule
60 (b)   (6),     M.R.Civ.P.,      and under another subsection of that Rule.
Koch v. Billings School Dist. No. 2 (1992), 253 Mont. 261, 269, 833
P.2d 181, 183. Nonetheless, the fact that a party requests relief
under subsection (3) and also under subsection (6) does not prevent
a district court or this Court from determining which subsection
was proper. Maulding v. Hardman (1993), 257 Mont. 18, 25, 847 P.2d
292,     297.
         In this case, the District Court did not find fraud but found
instead that David acted improperly in leaving Theresa with no
means of support and that the circumstances were extraordinary
given her severe disability.                    David also claims his actions were
not      fraudulent.          We agree with the court's reasoning and with
David's         claim    that relief pursuant to Rule 60(b) (3), M.R.Civ.P.,
was      not    available.        Accordingly,       we must now consider whether

extraordinary               circumstances       exist   warranting    relief    under
Rule 60(b) (6), M.R.Civ.P.
         In In re Marriage of Tesch (1982), 199 Mont. 240, 648 P.2d

293, extraordinary circumstances demanding the setting aside of a
final judgment under Rule 60(b) (6) were apparent where a wife
suffering         from   multiple sclerosis was not present or represented at
a divorce hearing and the husband was awarded the wife's interest


                                                 6
in marital property.          The court also determined that there was no
evidence in      the       record to        support       the   assertion       that   she
voluntarily relinquished her interests in the farm.                           Tesch, 648

P.2d at 296.          In    comparison,      Theresa suffers from ataxia, a

physically    debilitating        disease    affecting      her   to   such    an   extent

that she could not read or write at the time the dissolution

agreement was entered into.              Nor was she represented at the hearing

where the divorce decree was granted.                     In addition,       the District
Court found her testimony credible that she was not aware she had

relinquished her share of the marital estate.

        While in m,              the Court noted that the record did not

address the question of the wife's competency, the Court stated

that the wife's "disability, in itself, might warrant the setting

aside of the default judgment."                  TeschI
                                                 -        648 P.2d at 296.          In the

present case, the District Court found that Theresa's disability as

well as the parties'              past and present relationship manifested

extraordinary circumstances which warrant the setting aside of the

final     judgment.         In     our     consideration of            the    facts    and

circumstances of           this    case,     extraordinary        circumstances        are

apparent.
        Having determined that the facts of this case fall within the

purview of Rule 60(b) (6), M.R.Civ.P., we now must determine whether

the motion was filed within a reasonable time.                    The dissolution was

granted on April 6, 1994. Theresa testified that she was not aware

she was no longer married until sometime in June.                            On July 15,


                                             7
1994,    the Department of Family Services removed her to a foster

care home for adults.         She met with an attorney about one week
later and the dissolution documents were read to her for the first

time.    The attorney then took time to familiarize herself with the

documents and facts of the case and filed the motion to set aside

final judgment on February 7, 1995.

        The determination of a reasonable time pursuant to Rule 60(b),

is an equitable principle based upon the court's discretion.        Koch
                                                                    -I
833 P.2d at 186.       Questions of timeliness under the rule are thus

left to the sound discretion of the court and the court's judgment

will be overturned only upon a showing of abuse of discretion.         In

re Marriage of Waters (1986), 223 Mont. 183, 189, 724 P.2d 726,

730.     We determine that,    in view of the circumstances, the court

did not abuse its discretion in considering the time within which

Theresa filed her motion for relief pursuant to Rule 60(b) (6),

M.R.Civ.P.,    was reasonable.

        We therefore    conclude    that   the District Court correctly

interpreted the law and did not abuse its discretion in granting

Theresa's motion.      Accordingly, we conclude that the District Court

did not err in setting aside its decree of dissolution based upon

Rule 60(b) (61, M.R.Civ.P.,        insofar as it applies to allocation of

property,    maintenance, debts, attorney fees, and costs.

        Affirmed.


                                                Justice
We c o n c u r :




        Justices
                                           May 14, 1996

                                  CERTIFICATE OF SERVICE

I hereby certify that the fc allowing certified order was sent by United States mail, prepaid, to the
following named:


GARY WOLFE
Sol and Wolfe Law Firm
101 East Broadway, #300
Missoula, MT 59802

PATRICIA A. SANDERS
Sanders and Heller
P.O. Box 1524
Hamilton, MT 59840

                                                      ED SMITH
                                                      CLERK OF THE SUPREME COURT
                                                      STATE OF MONTANA
