                                      No. DA 06-0071

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                      2006 MT 269N



IN RE THE MARRIAGE OF

MARTIN BOTWINICK,

              Petitioner and Respondent,

         v.

JOEY ENGLISH SCHAEFER,

              Respondent and Appellant.




APPEAL FROM:         The District Court of the Eleventh Judicial District,
                     In and For the County of Flathead, Cause No. DR 04-660(B),
                     Honorable Katherine R. Curtis, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Kelton D. Olney, Alterowitz, Strauch & Olney, PC, Missoula, Montana

              For Respondent:

                     Katherine P. Maxwell, Law Office of Katherine P. Maxwell, PLLC,
                     Kalispell, Montana


                                                   Submitted on Briefs: September 27, 2006

                                                              Decided: October 24, 2006

Filed:


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

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

Operating Rules, as amended in 2003, 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    Joey English Schaefer appeals the denial of her motion to set aside the District

Court’s default judgment on the petition for dissolution filed by her husband, Martin

Botwinick. We affirm.

¶3    The petition for dissolution was personally served upon Schaefer, a resident of

Palm Springs, California, on February 11, 2005. Along with the petition, Schaefer

received a letter from Botwinick’s attorney containing a proposed property settlement

agreement, and advising her to retain counsel. On February 16, 2005, at Botwinick’s

request, his attorney sent Schaefer another letter explaining that her default would not be

entered, in order to give the parties time to further discuss matters, and informing

Schaefer that, should Botwinick later wish to proceed, his attorney would write to

Schaefer and give her a further twenty days to file her response. On July 14, 2005,

Botwinick’s attorney did, in fact, send notice to Schaefer that she was being given twenty

days to respond to the petition as Botwinick was ready to proceed with the divorce. In

addition, a revised property settlement agreement was faxed to Schaefer on July 21, 2005.

                                         2
Unfortunately, Schaefer threw away the second set of divorce papers sent to her on July

14 and 21.

¶4    Schaefer then visited Botwinick in Montana, for the first time in many months.

Apparently they went out to dinner and were intimate at least once during this visit.

According to Schaefer, Botwinick acted as though “nothing was wrong.” Botwinick,

however, claims he told her “we don’t have a marriage.” In any event, Schaefer failed to

respond in any manner to the petition and on August 5, 2005, twenty-two days after being

given notice that her default would be entered if she failed to respond and almost six

months after being notified that Botwinick was seeking dissolution, Botwinick entered

the default. On August 10, 2005, a hearing was held at which Botwinick testified, after

which the District Court entered a decree of dissolution. Notice of entry of decree

together with a copy of the decree was mailed to Schaefer on that day.

¶5    Respondent contends that she did not actually receive the notice and decree until

August 15, 2005 (upon her return from a trip to Cape Cod). At this time, according to

Schaefer, she realized that Botwinick had “lied and misled [her] hundreds of times and

[she] felt betrayed.” Schaefer then contacted her California attorney who referred her to

Montana counsel on September 1, 2005. Nonetheless, two days later she again traveled

to Montana to meet with Botwinick, but failed to meet with Montana counsel. Schaefer

contends she was securing the funds needed to attain counsel during this time. Her

motion to set aside the default judgment, consequently, was not filed until October 7,

2005, almost two months after she received notice of the default judgment.

                                        3
¶6    On appeal, Schaefer argues that the District Court committed an abuse of

discretion in refusing to overturn the default judgment. In order to set aside a default

judgment, the moving party must show that the “good cause criteria” of M. R. Civ. P.

55(c) has been met: (1) the defaulting party proceeded with diligence; (2) the defaulting

party’s neglect was excusable; (3) the defaulting party has a meritorious defense to the

claim; and (4) the judgment, if permitted to stand, will affect the defaulting party

injuriously. Essex Ins. Co. v. Jaycie, Inc., 2004 MT 278, ¶¶ 11-12, 323 Mont. 231, ¶¶ 11-

12, 99 P.3d 651, ¶¶ 11-12. The moving party must then satisfy the more stringent criteria

of M. R. Civ. P. 60(b). Additionally, to overturn a district court’s decision not to set

aside a default judgment, the moving party must prove that the district court committed a

slight abuse of discretion in assessing these standards. Peak Dev., LLP v. Juntunen, 2005

MT 82, ¶ 8, 326 Mont. 409, ¶ 8, 110 P.3d 13, ¶ 8.

¶7    Here, the District Court did not abuse its discretion, even slightly, in finding that

Schaefer failed to meet the “good cause criteria” of Rule 55(c). Schaefer neglected to

hire an attorney or respond in any meaningful way to Botwinick’s petition until well after

she was notified of the default judgment, some eight months after receiving Botwinick’s

petition. While Schaefer argued that Botwinick misled her and she needed to raise funds,

the fact, as noted by the District Court, that she is an accomplished business-woman who

earns over $200,000 a year discredited these excuses. Schaefer also argued that the

property division was inequitable because she was denied an opportunity to contest the

division, but failed to present the court with any specific evidence showing how the

                                        4
division was inequitable.     Given these facts, the District Court was well within its

discretion in finding that Schaefer failed to meet any, much less all four, of the Rule 55(c)

“good cause criteria.”

¶8       It is appropriate to decide this case pursuant to our Order of February 11, 2003,

amending Section 1.3 of our 1996 Internal Operating Rules and providing 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 Montana law which the District

Court correctly interpreted, and there was clearly no abuse of discretion by the District

Court.

¶9       We affirm the judgment of the District Court.



                                                  /S/ W. WILLIAM LEAPHART



We concur:

/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS




                                          5
