                                                                                         December 31 2008


                                          DA 08-0008

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2008 MT 461



DANIEL SMITH,

              Petitioner and Appellant,

         v.

PAMELA SMITH, n/k/a PAMELA BRISTOL,

              Respondent and Appellee.


APPEAL FROM:          District Court of the Tenth Judicial District,
                      In and For the County of Fergus, Cause No. DR 2006-51
                      Honorable E. Wayne Phillips, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Daniel Gregory Gillispie; Jeffrey A. Simkovic; Billings Legal, PLLC;
                      Billings, Montana

               For Appellee:

                      Jon A. Oldenburg, Attorney at Law; Lewistown, Montana



                                                   Submitted on Briefs: December 17, 2008

                                                              Decided: December 31, 2008


Filed:

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

¶1    Appellant Daniel Smith (“Smith”) appeals from the judgment of the Tenth Judicial

District Court ordering him to pay his ex-spouse Pamela Bristol (“Bristol”) damages and

fees resulting from his alleged failure to pay debts pursuant to their Divorce Settlement

Agreement entered into in the State of Georgia. Smith contends that the court erred in

not granting his motion to dismiss for lack of personal jurisdiction over him. We affirm.

¶2    Smith has raised three issues on appeal:

¶3    1.     Do Montana courts possess personal jurisdiction of Mr. Smith?

¶4    2.     Did Mr. Smith waive his objection to personal jurisdiction?

¶5    3.     Did the District Court abuse its discretion by acting in disregard for Mr.

Smith’s rights to due process under the Fourteenth Amendment?

¶6    For the reasons set forth below, we determine that issue two is dispositive of this

appeal.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶7    The Smiths were married in Roundup, Montana in 1981. Their three children

were born in Montana. In 1991 they moved to Georgia. They were divorced in Georgia

in 2003 at which time Bristol returned to Montana with the two younger children. In the

Settlement Agreement entered in the Georgia court, Smith agreed to “pay, be solely

responsible for, and hold [Bristol] harmless from:        all debts incurred during the

marriage.”




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¶8     In April 2006, Bristol filed a Petition for Contempt in the Montana Tenth Judicial

District Court, Fergus County. She alleged Smith failed to pay marital debts as agreed.

Smith’s counsel appeared and indicated to the court that he might file a motion objecting

to personal jurisdiction. The District Court, orally and by subsequent written order of

January 18, 2007, ordered that Smith submit his motion and brief by February 9, 2007.

The court also set a hearing for March 13, 2007. The court’s order specifically stated:

       [i]n the event the Petitioner [Smith] does not file a motion to challenge the
       jurisdiction of this Court, the hearing on the Verified Petition for Contempt
       is set for March 13, 2007 at 2:30 p.m.

¶9     Smith did not submit a motion or brief in the time frame required by the court nor

did he request an extension of time to file a motion and brief.

¶10    At the March 13, 2007 hearing, Smith’s counsel, despite not having filed a motion

and brief, raised the question of personal jurisdiction over Smith. The court responded by

requiring briefing on the question of whether Smith’s failure to file a motion and brief as

ordered by the court “trumped [Smith’s] right to object to jurisdiction and on the

underlying jurisdiction objection.” The brief was to be filed by March 23, 2007. Smith

filed a timely brief but only addressed the question of personal jurisdiction. Contrary to

the court’s specific direction, he did not address the question of whether his failure to file

the motion and brief by the initial February 9th deadline amounted to a waiver of the

issue of personal jurisdiction.

¶11    Noting that Smith had failed to timely challenge personal jurisdiction and then

failed to brief the question of whether that failure constituted a waiver of the

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jurisdictional argument, the court overruled Smith’s objection to its exercise of personal

jurisdiction, simultaneously denying his Motion to Dismiss.

¶12    At the subsequent trial of the matter, Smith failed to appear by phone, video or in

person. On appeal he challenges the District Court’s denial of his Motion to Dismiss.

                                      DISCUSSION

¶13    Whether a district court properly ruled on a motion to dismiss is a conclusion of

law which we review to determine if the court’s interpretation of the law is correct. Filip

v. Jordan, 2008 MT 234, ¶ 7, 344 Mont. 402, ¶ 7, 188 P.3d 1039, ¶ 7.

¶14    Smith relies on our decision in Heinle v. Fourth Jud. Dist. Ct., 260 Mont. 489, 861

P.2d 171 (1993) in support of his argument that the question of waiver is immaterial

because the “controlling consideration is whether the Montana court had a constitutional

basis to exercise personal jurisdiction over [Smith]. . . .” Heinle, 260 Mont. at 493, 861

P.2d at 173. Smith points out that, although the out-of-state father in Heinle did not make

a timely objection to the exercise of personal jurisdiction, this Court nonetheless

concluded the judgment with respect to child support was void for lack of jurisdiction.

The Heinle case, however, is distinguishable from the present situation because Heinle

involved a default judgment entered against the father when he failed to appear. We

reasoned that:

       the dispositive question is whether the court had a constitutional basis to exercise
       personal jurisdiction over Howard and enter a money judgment against him. It is
       well established that if a court does not properly acquire personal jurisdiction over
       a defendant, a default judgment entered against that defendant is void.


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Heinle, 260 Mont. at 492, 861 P.2d at 173. Unlike Heinle, the judgment against Smith

was not a default judgment. Rather, Smith, through counsel, filed an appearance on

September 11, 2006. Smith’s counsel then appeared at status conferences on November

21, 2006, and January 16, 2007, without filing any challenges to the District Court’s

exercise of personal jurisdiction. As a result of counsel’s comment at the January 16th

conference that he was going to challenge personal jurisdiction, the District Court set a

briefing schedule to address that issue. As set fourth above, Smith failed to comply with

that briefing schedule.

¶15    Rule 12(b) M. R. Civ. P. provides that at the option of the pleader, the defense of

lack of personal jurisdiction can be raised by way of motion. Smith’s counsel indicated

to the court that he wished to raise the defense by way of a motion. Accordingly, the

court set a time frame within which to brief and address the issue. Smith did not comply

with that schedule.

¶16    Lack of personal jurisdiction is a waivable defense. Rule 12(h)(1)(B) M. R. Civ.

P. provides as follows:

              [a] defense of lack of jurisdiction over the person . . . is waived . . . if it is
       neither made by motion under this rule nor included in a responsive pleading or an
       amendment thereof permitted by Rule 15(a) to be made as a matter of course.

¶17    Further, Rule 2(b) of the Uniform District Court Rules provides:

              [f]ailure to file briefs may subject the motion to summary ruling.
       Failure to file a brief within five days by the moving party shall be deemed
       an admission that the motion is without merit.




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¶18    We conclude that where a defendant who has been served with process files an

appearance, indicates that he anticipates filing a motion challenging personal jurisdiction

and then fails to file such a motion or supporting brief within the time frame established

by the court’s scheduling order, the defendant has waived that defense.

¶19    Since we have concluded that the District Court correctly denied Smith’s motion

to dismiss, we need not address Issues 1 and 3.

¶20    Affirmed.

                                                  /S/ W. WILLIAM LEAPHART


We concur:


/S/ JIM RICE
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ BRIAN MORRIS




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