                             No.    91-382

           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1993



IN RE THE MARRIAGE OF
CATHARINE GAY GROUNDS,
f/k/a CATHARINE GAY COWARD,
           Petitioner, Respondent
           and Cross-Appellant,
     and
HAROLD MARK COWARD,
           Respondent, Appellant,
           and Cross-Respondent.



APPEAL FROM:    District Court of the Fourth Judicial District,
                In and for the County of Missoula,
                The Honorable Douglas G. Harkin, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
                Michael Sol, Sol    &   Wolfe, Missoula, Montana
           For Respondent:
                John Rayburn Velk, Attorney at Law,
                Missoula, Montana


                              Submitted on Briefs:     August 27, 1992
                                              Decided: February 11, 1993
Filed:
~usticeTerry N. Trieweiler delivered the opinion of the Court.
     Appellant Mark Coward filed a premature notice of appeal
before the disposition of respondent Catharine Grounds' post-trial
motion.    No new motion was filed by appellant after respondent's
motion was deemed denied, as required by Rule 5 of the Montana
Rules of Appellate Procedure.         We dismiss the appeal.
     On February 28, 1991, the District Court of the Fourth
Judicial     District, Missoula       County, granted    a   petition   for
dissolution     to    Mark   Coward     (Mark)   and   Catharine   Grounds
(Catharine).    Findings of fact and conclusions of law were issued
on March 14, 1991, and a judgment incorporating those findings and
conclusions was entered on March 20, 1991. Among other provisions,
the judgment provided Catharine with maintenance for life. Notice
of entry of judgment was filed on March 28, 1991.
     On April 1, 1991, Catharine filed a motion for contempt for
failure to pay maintenance.       An order to show cause was issued on
April 2, 1991.       On April 4, 1991, Mark timely filed a motion to
alter or amend the judgment, requesting the court to modify the
maintenance award to his ex-wife.          Mark also made a motion for a
                                                                 ,
new trial. Mark's motions were made in accordance with Rule 59 (9)
M.R.Civ.P.
     On April        15, 1991, a hearing was held on the contempt
proceedings. On April 17, 1991, the court entered an order holding
Mark in contempt. In the same order, the court ruled on Mark's two
motions.     The judge: (1) partially granted Mark's motion to alter
                                       2
or amend the March 20, 1991, judgment by modifying the maintenance
award provided in the original judgment; and (2) denied Mark's
motion for a new trial.
     On April 30, 1991, Catharine filed a motion in accordance with
Rule 59(g), M.R.Civ.P., requesting the court to alter or amend the
April 17, 1991, order.        Before   the   court's disposition of
Catharine's motion, Mark filed a notice of appeal of the March 14,
1991, findings and the April 17, 1991, order.     He made his filing
on May 17, 1991.    On May 23, 1991, the District Court issued a
memorandum and order responding to Catharine's motion; however, the
court did not dispose of her motion at this time nor at any time
thereafter.    On June 15, 1991, Catharine's motion was deemed
denied.   On June 28, 1991, Catharine filed her notice of appeal.
     Catharine maintains that Mark's notice of appeal, filed on
May 17, 1991, was premature, and therefore, ineffective, according
to Rule 5(a)(4), M.R.App.P.      She maintains that Mark's appeal
should be dismissed based upon his failure to comply with Rule 5 of
the Montana Rules of Appellate Procedure.     We agree.
     Rule 5 (a)(1), M.R.App. P., requires the notice of appeal in
civil cases to be filed within 30 days of the entry of judgment.
However, if a motion under Rule 59 (g), M.R.Civ.P.,   is timely filed
by either party, the time for appeal shall run from the entry of
the order granting or denying the motion, or if applicable, from
the time the motion is deemed denied pursuant to Rule 59(d),
M.R.Civ.P., by the court's failure to rule on it within 45 days.
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If a notice of appeal is filed before the motion is disposed of,
the notice of appeal shall have no effect.             Rule 5 (a)(4),
M.R.App.P.    Semenzav.Hartelius (1991), 248 Mont. 294, 295, 811 P.2d

1262, 1263.   Further, if a notice of appeal is filed prematurely,
a new notice of appeal must be filed after the motion is disposed
of or deemed denied in order to remedy the original untimely
filing. Rule 5(a)(4), M.R.App.P.
     The language of Rule 5(a) (4), M.R.App.P.,        requires the
conclusion that Mark filed a premature notice of appeal. Catharine
timely filed her post-trial motion to alter or amend the April 17,
1991, order on April 30, 1991. While this motion was pending, Mark
filed a notice of appeal on May 17, 1991.          Pursuant to Rule
5(a) (4), M.R.App.P., Mark should have waited until after the court
disposed of Catharine's timely motion or until her motion was
deemed denied to file his notice of appeal.
     Mark contends that the time for appeal began to run on
April 18, 1991, when the court filed the ruling on Mark's motions;
and consequently his May 17, 1991, filing was timely.     Mark bases
this argument on an erroneous assumption that Catharine's motion
was filed two days too late, and therefore, could be disregarded.
     Catharine filed her motion on April 30, 1991.      Mark asserts
that Catharine's filing was made 12 days after the April 18, 1991,
order which she sought to amend.      He contends that this was two
days beyond the 10 day filing limit required by Rule 59(g),
M.R.Civ.P.   Consequently, Mark asserts, he acted properly when he
disregarded Catharine's motion and filed the notice of appeal when
he did.   Mark's assumption is incorrect.
     Rule 6(a), M.R.Civ.P.,   provides the methodology by which
computation of time is to be determined:
     In computing any period of time prescribed or allowed by
     these rules, by order of court, or by any applicable
     statute, the day of the act, event, or default after
     which the designated period of time begins to run is not
     to be included.
     April 17, 1991, the day the order was issued, is not to be
included in the time computation, as that is the date of the act of
the court, namely the altering and amending of the prior judgment.
     Further, Rule 6(a) of the Montana Rules of Civil Procedure
provides that:
     When the period of time prescribed or allowed is less
     than 11 days, intermediate Saturdays, Sundays and
     holidays shall be excluded in the computation.
Pursuant to Rule 59(g), M.R.Civ.P., a motion to alter or amend a
judgment shall be served no later than 10 days after the notice of
entry of judgment.    This time period is less than the 11 days
referred to in Rule 6(a),     M.R.Civ.P.,   therefore, intervening
Saturdays and Sundays are not counted. Accordingly, Catharine had
until May 1, 1991, to file her motion to alter or amend. She filed
her motion on April 30, 1991, one day before the time limit
expired. She filed her motion within the time limitations required
by the Montana Rules of Civil Procedure.
     On May 23, 1991, the court responded to Catharine's motion by
a memorandum and order, but neither denied nor granted her motion
in this order or at any time thereafter. According to Rule 59(d),
M.R.civ.P.,   because the court failed to dispose of Catharine's
motion, the motion was deemed denied on June 15, 1991, 45 days
after the April 30, 1991, filing date.    Pursuant to Rule 5(a)(4),
M.R.App.P.,   Mark should have waited until on or after June 15,
1991, to file his notice of appeal for his filing to be effective;
or, subsequent to his premature filing, Mark should have filed a
new notice of appeal on or after June 15, 1991. Mark did neither.
     Rule 5 (a)(4), M.R.App. P., mandates the conclusion that because
Mark's filing was premature, it was ineffective. Moreover, because
Mark failed to remedy his situation and to file a new notice of
appeal after Catharine's motion was deemed denied, his appeal is
hereby dismissed.
                        CATHARINE'S APPEAL

     Although we dismissed Mark's appeal due to a failure to comply
with the timely filing requirements of Rule 5 of the Montana Rules
of Appellate Procedure, we will address Catharine's appeal because
she timely filed a notice of appeal of the April 17, 1991, order.
The court never disposed of Catharine's April 30, 1991, motion;
consequently, Catherine's motion was deemed denied on June 15,
1991, 45 days after her motion was made.     Rule 59(d), M.R.Civ.P.
According to Rule 5, M.R.App.P.,      Catherine had   30   days from
June 15, 1991, to file her notice of appeal. She timely filed the
notice on June 28, 1991, well within the prescribed time limit.
     The sole issue on Catharine's appeal is:
     Did the District Court err when it partially granted Mark's
motion to alter or amend the judgment, despite Mark's failure to
file a supporting brief within five days of his motion, and despite
his failure to notify Catharine of when his motions would be heard?
     In the original March 20, 1991, judgment, the District Court
awarded   Catharine maintenance   until   she dies   or   remarries,
whichever shall occur first. On April 4, 1991, Mark filed a motion
to alter or amend the judgment and a motion for a new trial.     He
did not file briefs in support of either motion at any time. Mark
also failed to notify Catharine that his motions would be heard in
conjunction with Catharine's contempt motion at the scheduled
contempt hearing on April 15, 1991.
     At the April 15, 1991, hearing, Mark did not present evidence
regarding either of his motions. The only argument made on behalf
of Mark's motion to amend the judgment was a comment by Mark at the
end of the hearing that maintenance should be modified because "no
woman should be paid $2,000 for life."    Nonetheless, on April 17,
1991, the District Court partially granted Mark's motion to amend

the judgment and modified the lifetime maintenance award.
     In the April 17, 1991, order, the District Judge explained
that further consideration of the findings of fact and conclusions
of law warranted a modification of the maintenance agreement.     He
                                  7
stated that: "[tlhe award of maintenance in the judgment dated
March 20, 1991, is modified so that maintenance shall terminate if
[~atharine]
          remarries or on March 20, 2001, whichever shall first
occur. "
     On April 30, 1991, Catharine filed a motion to amend the
April 17, 1991, order.         On May 23, 1991, the District Court
responded to Catharine's motion by recognizing that confusion
existed as to Catharine's lack of notice of when Mark's motions
would be heard.      The court requested the parties to propose a
briefing schedule and/or evidentiary hearing date; however, the
parties never acted on this request.
     Catharine contends that       the   District Court     abused   its
discretion when it partially granted Mark's motion.          She argues
that according to Uniform District Court Rule 2, a moving party's
failure to file a brief in support of its motion within five days
of the filing of the motion shall be deemed an admission that the
motion     is without merit.     Consequently, she asserts, Mark's
unsupported    motions   should have     been   deemed   meritless, and
therefore, denied.
     Secondly, Catharine contends that no notice of hearing was
submitted regarding Mark's motion to amend; therefore, she had no
notice that the court was going to consider Mark's motion to amend
the judgment at the April 15, 1991, hearing.
      Catharine asserts that at the very minimum, she is entitled to
a remand and further proceedings at which she may present evidence
                                    8
and testimony to justify the lifetime maintenance award which she
was originally granted in the March 20, 1991, judgment.               She
asserts that the District Court's abuse of discretion should be
corrected.
        In Mabeny v Gueths (l989), 238 Mont. 304, 7 7 7 P.2d 1285, we held
                  .

that although we will view a failure to file an answer brief within
the time allowed as an admission that the motion is well taken by
the nonmoving party, Uniform ~istrictCourt Rule 2 does not require
the district court to grant the unanswered motion. The Rule states
that "failure to file briefs may subject the motion to summary
ruling." We concluded in Mabeny that Uniform District Court Rule 2

did not remove the discretion of the district court to grant or
deny an unanswered motion as it sees fit.          Maybeny, 7 7 7 P.2d at

1289.

        Similarly, we conclude in this case that although Mark failed
to file a brief in support of his motion and such failure to file
a brief is to be viewed as an admission by Mark that his motion is
without merit, Uniform District Court Rule 2 does not require the
District Court to dismiss Mark's unsupported motions. The District
Court retains the discretion to grant or deny unsupported motions
as it sees fit.        Furthermore, the parties were invited by the
District Court to propose a briefing schedule and/or          evidentiary
hearing date to present supplemental arguments on the issue of
maintenance; yet the parties never did.
      We hold that the District Court did not err when it granted
Mark's   motion   to   alter     or   amend   the   judgment and    reduced
Catharine's award of maintenance from a lifetime duration to 10
years or until Catharine remarries, whichever shall occur first.
The   District    Court   made    its    decision    based   upon   further
consideration of the record and determined that the original
findings of fact and conclusions of law warranted modification. We
conclude that there was no abuse of discretion and affirm the
District Court's modification of the maintenance award.




We concur:
