                                          No. 04-706

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                       2005 MT 185


RIANT POLSON, AUDRA MADISON and
PAULA SMITH, Personal Representatives of the
Estate of ANDREW LYNN POLSON,

              Petitioners and Respondents,

         v.

MARCIA ANN POLSON,

              Respondent and Appellant.



APPEAL FROM:         District Court of the Fourth Judicial District,
                     In and for the County of Missoula, Cause No. DR 98-86335,
                     The Honorable C.B. McNeil, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     Lon J. Dale and W. Adam Duerk, Milodragovich Dale Steinbrenner &
                     Binney, P.C., Missoula, Montana

              For Respondents:

                     Philip J. O’Connell, Attorney at Law, Missoula, Montana


                                              Submitted on Briefs: June 21, 2005

                                                        Decided: July 26, 2005
Filed:


                     __________________________________________
                                       Clerk
Justice Brian Morris delivered the Opinion of the Court.

¶1     Appellant Marcia Ann Polson (Marcia) appeals from an order entered by the Fourth

Judicial District Court, Missoula County, denying her request for discovery relating to a

motion to set aside the judgment of her decree of dissolution from her husband Andrew Lynn

Polson (Lynn), pursuant to § 40-4-253(5), MCA. Marcia bases her claim upon financial

statements contradicting Lynn’s declaration that he had no interest in real property at the

time of the parties’ dissolution. We affirm.

¶2     We must determine whether the District Court properly denied Marcia’s request to

set aside the judgment and re-open discovery after finding that Lynn had not committed

perjury in the final declaration of assets filed before the dissolution.

                  PROCEDURAL AND FACTUAL BACKGROUND

¶3     The dissolution of Marcia’s marriage provides the underlying facts upon which she

bases this appeal. Our decision in In re Marriage of Polson, 2000 MT 386N, 303 Mont.

540, 18 P.3d 1033, sets forth the details of the dissolution proceedings and subsequent

appeals.

¶4     To summarize, Marcia and Lynn married in 1975 and divorced in 1999. Both parties

provided sworn testimony on July 16, 1999, regarding the dissolution of marriage and their

marital estate during the course of a bench trial. Marcia attempted to introduce into evidence

at trial a financial statement purportedly containing Lynn’s signature that implicated his

ownership in three parcels of real property. The court ruled that Marcia had failed to lay

adequate foundation for the admittance of the financial statement and found that the parties



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did not own any interest in real property based on representations made to the court by Lynn

at trial and in disclosures provided. Marcia appealed the court’s division of marital property

on the grounds that the court failed to admit into evidence the financial statement and include

the three parcels of real property in the marital estate. We affirmed the court’s exclusion of

the financial statement and its division of marital property. Polson, ¶ 24.

¶5     Marcia filed a separate action against Lynn after the dissolution and appeal on

September 6, 2000. Marcia took a records deposition of First Security Bank on September

20, 2001, during which the bank produced financial statements that Lynn had submitted to

it for the years 1994, 1996, and 1997 in which he listed an ownership interest in three

separate parcels of property in Montana. Lynn’s counsel objected to the production of the

financial statements at the deposition on the grounds that the District Court had issued an

order limiting the deposition to issues regarding an Arizona corporation in which Lynn may

have controlled an ownership interest.

¶6     Marcia moved the District Court on June 29, 2004, to set aside its original findings

of fact and conclusions of law and order pursuant to § 40-4-253(5), MCA. This statute

allows a trial court to set aside a judgment if the court discovers within five years after the

date of entry that a party has committed perjury in the final declaration of disclosure. Marcia

based her motion to re-open the dissolution decree upon the newly discovered financial

statements and their implication that Lynn had intentionally failed to disclose his interest in

these real properties to the court during the course of the dissolution proceeding. Marcia has

never offered testimony regarding the authenticity or execution of the documents and the



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District Court has never ruled on their admissibility. Lynn died in 2003 and his children, as

personal representatives, continued in the litigation and objected to the motion.

¶7     The District Court held a hearing and found that Marcia had failed to present evidence

of any fraud or perjury committed by Lynn in the course of the dissolution proceeding. The

court noted that the financial statements may have contained false statements made by Lynn

to the bank, but that these false statements did not necessarily constitute perjury to the court.

The court thus concluded that Marcia had failed to present adequate evidence of fraud that

would justify re-opening the decree.

                                STANDARD OF REVIEW

¶8     At the outset, we note that Marcia argues that the interpretation of § 40-4-253(5),

MCA, represents a question of law which we should review de novo. Carbon County v.

Union Reserve Coal Co., Inc. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686. The District

Court found as a matter of fact, however, that Marcia had failed to present adequate evidence

that might provide a factual basis for it to discover Lynn’s alleged perjury in his final

declaration of disclosure. We review a district court’s findings of fact for clear error. In re

Marriage of Collins, 2004 MT 365, ¶ 16, 324 Mont. 500, ¶ 16, 104 P.3d 1059, ¶ 16.

                                        DISCUSSION

¶9     Marcia argues that § 40-4-253(5), MCA, fails to provide any procedural mechanism

for a district court or a party to determine independently whether perjury occurred or what

remedies the aggrieved party may be awarded. She contends that although no explicit

procedures exist to uncover the basis of a perjury claim, as a matter of equity, she remains



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entitled to engage in further discovery regarding Lynn’s alleged fraudulent activity. Marcia

maintains that following further discovery the court should hold a hearing and determine the

proper remedy. We disagree.

¶10    We conclude that the District Court correctly determined that Marcia had failed to

present adequate evidence that Lynn committed perjury in his final declaration of assets filed

prior to the dissolution. Under § 40-4-253(5), MCA, a court may set aside the judgment or

part of the judgment if it discovers within five years from the date of entry of judgment that

a party has committed perjury in the final declaration of disclosure. Marcia failed to present

to the court any documentary or testimonial evidence proving that Lynn owned real property

that he intentionally excluded in the final declaration of disclosure. Marcia’s motion to re-

open the 1999 decree of dissolution remains based solely on financial statements whose

authorship and execution she has never proven and the court has never admitted into

evidence. Moreover, Marcia had ample opportunity to depose Lynn while he remained alive

about the authenticity of the financial statements and his alleged ownership of the real

property identified in those financial statements. A personal financial statement to a bank

does not establish an ownership interest in real property. First Sec. Bank of Bozeman v.

Tholkes (1976), 169 Mont. 422, 427, 547 P.2d 1328, 1330 (a financing statement cannot

claim an interest in real property). The financial statements offered here merely recite the

same information presented to and rejected by the District Court in the original dissolution

action and disregarded by this Court on appeal.

¶11    Therefore, substantial credible evidence supports the District Court’s findings that



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Marcia did not establish any admissible facts upon which the court might discover that Lynn

committed perjury in court. We cannot deem the court’s findings clearly erroneous under

these circumstances. Accordingly, we affirm the District Court’s denial of Marcia’s motion

to set aside judgment.


                                                       /S/ BRIAN MORRIS

We Concur:


/S/ KARLA M. GRAY
/S/ PATRICIA O. COTTER
/S/ JOHN WARNER




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Justice James C. Nelson dissents.

¶12    I dissent from our decision.

¶13    At issue is § 40-4-253(5), MCA, which provides:

              In addition to any other civil or criminal remedy available under law for
       the commission of perjury, the court may set aside the judgment, or part of the
       judgment, if the court discovers, within 5 years from the date of entry of
       judgment, that a party has committed perjury in the final declaration of
       disclosure.

The sole issue on appeal is whether the trial court erred in not allowing Marcia to conduct

discovery concerning Lynn’s non-disclosure of assets in the original dissolution proceeding.

¶14     In Kunst v. Pass, 1998 MT 71, ¶ 35, 288 Mont. 264, ¶ 35, 957 P.2d 1, ¶ 35, we set

out the general rule regarding notice pleading:

       [I]t is well settled that Montana’s rules of civil procedure, including Rule 8(a),
       M.R.Civ.P., are notice pleading statutes. Mysse v. Martens (1996), 279 Mont.
       253, 266, 926 P.2d 765, 773; Butte Country Club v. Metropolitan Sanitary &
       Storm Sewer Dist. (1974), 164 Mont. 74, 77, 519 P.2d 408, 409. Pursuant to
       Rule 8(a), M.R.Civ.P., a complaint must put a defendant on notice of the facts
       the plaintiff intends to prove; the facts must disclose the elements necessary
       to make the claim; and the complaint must demand judgment for the relief the
       plaintiff seeks. Mysse, 279 Mont. at 266, 926 P.2d at 773; Rule 8(a),
       M.R.Civ.P.

¶15    Marcia’s Motion to Set Aside Judgment is in the nature of a complaint for relief and

fulfills the foregoing requirements. It puts the defendants on notice of the facts the she

intends to prove; these facts disclose the elements necessary to make the claim; and the

motion demands the relief which Marcia seeks. Nothing more is required.

¶16    Obviously, if Marcia’s statutory remedy under § 40-4-253(5), MCA, is to have any

viability, however, she must be permitted to develop her claim through discovery as in any

other civil action.
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¶17    The trial court and now this Court have short-circuited Marcia’s statutory remedy.

On the one hand, she is criticized for not presenting evidence of a prima facie case, and on

the other, she is denied the ability to gather, through discovery, the evidence necessary to do

so. I would give her that opportunity; I would allow Marcia to engage in discovery.

¶18    I dissent.


                                                                     /S/ JAMES C. NELSON




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