                                                                                        July 13 2010


                                           DA 09-0685

                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2010 MT 150N



IN RE THE MARRIAGE OF
ALBERT S. GOLLNICK,

               Petitioner and Appellee,

         and

JANE S. GOLLNICK,

               Respondent and Appellant.


APPEAL FROM:           District Court of the Twenty-First Judicial District,
                       In and For the County of Ravalli, Cause No. DR 09-77
                       Honorable James A. Haynes, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Joan E. Cook, Law Office of Joan E. Cook; Missoula, Montana

                For Appellee:

                       Matthew Baldassin, Datsopoulous, MacDonald & Lind, P.C.;
                       Missoula, Montana



                                                   Submitted on Briefs: June 9, 2010

                                                               Decided: July 13, 2010


Filed:

                       __________________________________________
                                         Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1    Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2006, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and its case title, Supreme Court cause number and disposition shall be included in

this Court’s quarterly list of noncitable cases published in the Pacific Reporter and

Montana Reports.

¶2    Appellant Jane S. Gollnick (Jane) appeals from the order of Twenty-First Judicial

District Court, Ravalli County, denying her motion to set aside judgment.

¶3    The issue on appeal is as follows:

¶4   Did the District Court err in denying Jane’s motion to set aside the default
judgment?

¶5    On April 10, 2009, Albert Gollnick (Albert) appeared pro se and filed a petition

for dissolution of his marriage to Jane. Five days later, on April 15, 2009, the Ravalli

County Sheriff’s Office served Jane with Albert’s petition which included his preliminary

declaration of assets, debts, income and expenses, as well as notice of service, notice and

acknowledgement of receipt of summons and petition, sensitive data form, and the

summons and economic restraining order. Jane did not respond to Albert’s petition or

make an appearance. As a result, on May 12, 2009, Albert filed a request for entry of

default judgment and an application for default judgment. Jane’s default was entered on

May 12, 2009, and on July 2, 2009, the District Court set a hearing for entry of default

judgment and final decree of dissolution.



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¶6     The day before the hearing, Doctor Richard Felix faxed a letter to the District

Court requesting that the final decree be postponed and informing the District Court that

Jane had been hospitalized since June 28, 2009.

¶7     On July 2, 2009, Albert appeared for the hearing and Jane did not. The District

Court advised Albert of the letter from Doctor Felix and Albert gave sworn testimony

that the property division he requested was equitable and that it was the same division

proposed in the petition for dissolution he had served on Jane. The District Court found

the parties’ marriage irretrievably broken and ordered it dissolved. Over three months

later, on October 9, 2009, Jane made her first appearance by filing her motion to set aside

the judgment. On December 2, 2009, the District Court issued its order denying Jane’s

motion to set aside judgment. Jane appeals.

¶8     On appeal, Jane argues that the District Court erred in several ways when it denied

her motion to set aside judgment. First, Jane asserts that in light of Doctor Felix’s letter

to the District Court, the District Court should not have entered the default and decree

based on Albert’s representations. She maintains that her depression and treatment for

depression left her without the capacity to make reasonable decisions regarding her

situation. In support of this argument, Jane offers her “Discharge Plan” indicating that

she was discharged from the hospital on July 2, 2009. Second, Jane contends that the

District Court’s judgment should be set aside because “Albert failed to file an adequate

disclosure of all assets, liabilities and income.” She argues that the District Court shirked

its duty to inquire into Albert’s disclosure, particularly with respect to discrepancies

regarding his pensions, income, and assets. Third, Jane asserts that the District Court’s


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division of property is inequitable and “constitutes an abuse of discretion.” Finally, Jane

argues that the District Court erred by “awarding relief to Albert that was over and above

what was initially requested in his [p]etition for [d]issolution.”

¶9     Albert counters that as a threshold matter, Jane waived her argument that the

District Court’s distribution of the property was inequitable and different from what

Albert sought. He further contends that Jane did not present the “Discharge Plan” to the

District Court and that she therefore, should not be able to present it on appeal. Albert

also maintains that Jane failed to request below and thus, cannot argue here, that she is

entitled to relief pursuant to M. R. Civ. P. 55(c) and 60(b). Nevertheless, Albert argues

that the District Court’s analysis under both M. R. Civ. P. 55(c) and 60(b) was not an

abuse of discretion.     He points out that even though “Jane failed to comply with

procedural rules throughout the proceeding below” the District Court considered whether

the circumstances entitled Jane to relief and correctly denied her motion to set aside

judgment.

¶10    As default judgments are not favored, we review a district court’s denial of a

motion to set aside judgment for only a slight abuse of discretion. ABC Collectors, Inc. v.

Birnel, 2008 MT 35, ¶ 10, 341 Mont. 310, 176 P.3d 1067. A District Court abuses its

discretion if its order is arbitrary, shows no conscientious judgment or exceeds the

bounds of reason. Essex Ins. Co. v. Moose’s Saloon, Inc., 2007 MT 202, ¶ 19, 338 Mont.

423, 166 P.3d 451.

¶11    A party seeking to set aside a default judgment entered by a district court must

satisfy M. R. Civ. P. 60(b). Tschida v. Rowe, 2003 MT 192, ¶ 12, 316 Mont. 503, 74


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P.3d 1043. Here, despite the fact that Jane failed to argue she was entitled to relief under

M. R. Civ. P. 60(b) and failed to make an appearance, file an answer, make an objection

or file her own financial disclosure statements until nearly six months after she was

served with Albert’s petition, the District Court still engaged in a thorough analysis on

the merits of Jane’s motion to set aside judgment and came to the conclusion that Jane’s

motion failed to justify setting aside the judgment. Indeed, the District Court engaged in

its analysis under M. R. Civ. P. 60(b), despite the fact that Jane failed to file her motion

within the 60 day requirement.

¶12       Although Jane contends that her depression and consequent admission to St.

Patrick’s Hospital prevented her from understanding her situation or from appearing at

the July 2, 2009 hearing, we find no merit in her argument that the District Court abused

its discretion in entering judgment against her. Simply put, despite her knowledge of

Albert’s petition, Jane failed to take any action until long after judgment had been entered

against her and even then failed to present sufficient evidence to support her request for

relief.

¶13       Having reviewed the record, the District Court’s decision and the parties’

arguments on appeal, we have determined to decide this case pursuant to Section I,

Paragraph 3(d) of our 1996 Internal Operating Rules, as amended in 2006, which

provides for memorandum opinions. It is manifest on the face of the briefs and the

record before us that the appeal is without merit because the findings of fact are

supported by substantial evidence, the legal issues are clearly controlled by settled




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Montana law which the District Court correctly interpreted, and the record supports the

District Court’s denial of Jane’s motion to set aside judgment.

¶14    Affirmed.


                                                 /S/ W. WILLIAM LEAPHART


We concur:


/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS




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