In Re the Marriage of Castor

817 P.2d 665, 249 Mont. 495, 48 State Rptr. 807, 1991 Mont. LEXIS 226
CourtMontana Supreme Court
DecidedAugust 29, 1991
Docket91-200
StatusPublished
Cited by30 cases

This text of 817 P.2d 665 (In Re the Marriage of Castor) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re the Marriage of Castor, 817 P.2d 665, 249 Mont. 495, 48 State Rptr. 807, 1991 Mont. LEXIS 226 (Mo. 1991).

Opinions

JUSTICE HARRISON

delivered the Opinion of the Court.

Gavin Castor appeals from a February 20, 1990, order of the District Court of the Eighth Judicial District, Cascade County, Montana, denying his motion for modification of spousal maintenance payments and ordering him to pay Shirley Castor $6,066 in past-due maintenance payments, $4,000 representing Mrs. Castor’s remaining share of his civil service retirement fund, $300 per month spousal support, and $250 in attorney’s fees. We affirm.

We frame the issues as follows:

1. Should the District Court have set aside the February 20,1991, order under Rule 60(b), M.R.Civ.P. because of mistake, inadvertence, excusable neglect, or any other reason justifying relief?

2. Does a State District Court have the authority in a dissolution action to order the United States Office of Personnel Management to pay directly to a former spouse a share of a civil servant’s monthly disabihty retirement annuity payments?

3. Did the District Court abuse its discretion by ordering Mrs. Castor to deliver all personal property in her possession awarded to Mr. Castor by the dissolution decree, after she had received in full her share of retirement benefits, past-due maintenance payments, and attorney’s fees?

4. Did the District Court abuse its discretion by awarding $250 in attorney’s fees to Mrs. Castor?

After 28 years of marriage, on April 1, 1988, Gavin D. Castor and Shirley M. Castor were granted a dissolution of marriage. Mr. Castor was required to pay $675 per month spousal maintenance until the couple’s home in Utah was sold. Maintenance would then be reduced to $300 per month until Mrs. Castor became eligible for Social Security retirement benefits. Mr. Castor was ordered to pay $4,000 [498]*498to Mrs. Castor as her share of his civil service retirement pension. The parties were allowed to keep certain personal property then in their possession, and Mrs. Castor was ordered to turn over certain personal property to Mr. Castor.

On October 15, 1990, Mr. Castor moved to modify the dissolution decree by reducing the amount of spousal maintenance payments and moved to require Mrs. Castor to turn over titles to vehicles and other personal property awarded to Mr. Castor.

On December 6, 1990, Mrs. Castor requested a continuance of the hearing on the motion for modification of the dissolution decree because notice of the hearing scheduled for that date was not received until November 30, 1990. The motion was granted, and the hearing was reset for January 23, 1991.

On January 22, 1991, the District Court ordered the January 23 date for the hearing to be vacated because of a conflict in the court’s calendar and rescheduled the hearing for February 14, 1991. Both parties received written notice of the continuance. Although Mr. Castor’s counsel received the notice, he failed to see the new date of the hearing. As a consequence, neither Mr. Castor nor his attorney appeared at the hearing on February 14. After waiting for forty minutes, the District Court heard testimony from Mrs. Castor and entered judgment in her favor.

In its February 20, 1991 order, the District Court required the United States Office of Personnel Management to continue to pay Mrs. Castor $582 per month from Mr. Castor’s monthly retirement benefits until March 1991. At that time, the Office of Personnel Management was ordered to withhold $500 per month for Mrs. Castor. Of the $500 withheld, $300 was for spousal maintenance and $200 was to be applied to the balance of Mrs. Castor’s $4,000 share of retirement benefits, $6,066 in past-due spousal maintenance, and $250 in attorney’s fees. In approximately three years when these obligations to Mrs. Castor had been paid in full, the Office of Personnel Management was ordered to withhold $300 per month for spousal maintenance.

In addition, after Mrs. Castor’s share of retirement benefits, past-due maintenance, and attorney’s fees were paid in full, Mrs. Castor was required to deliver to Mr. Castor the personal property and title to vehicles awarded to him by the dissolution decree.

On March 13,1991, the District Court denied Mr. Castor’s motion to set aside the order modifying the dissolution decree. From these judgments, Mr. Castor appeals.

[499]*499I.

Should the District Court have set aside the February 20, 1991, order under Rule 60(b), M.R.Civ.R for mistake, inadvertence, excusable neglect, or other reason justifying relief?

Sections (1) and (6) of Rule 60(b), M.R.CivR. provide that the court may relieve a party from a final judgment for “mistake, inadvertence, surprise, or excusable neglect” or “any other reason justifying relief from the operation of the judgment.”

Mr. Castor’s counsel argues that he is “only human” and that his mistake in failing to notice the rescheduled date of the hearing on Mr. Castor’s motion should not have been imputed to his client. Mr. Castor’s counsel maintains that medical evidence of his client’s disability would have changed the outcome of the court’s ruling.

If the district court exercises its discretion in appraising or weighing facts of a particular case, on review this Court determines whether the district court, in varying degrees, has abused or misused its discretion. See Steer, Inc. v. Department of Revenue (Mont. 1990), [245 Mont. 470,] 803 P.2d 601, 603-04, 47 St.Rep. 2199, 2200. If the district court’s decision does not involve the public policy that cases should be tried and decided on their merits, then the scope of review is the standard abuse of discretion test.

When the district court sets aside a default judgment pursuant to Rule 60(b), allowing the case to be tried on its merits, a showing of great abuse of discretion is necessary to reverse the district court’s decision. Graham v. Mack (1985), 216 Mont. 165, 172, 699 P.2d 590, 594. But when the district court has refused to set aside a default judgment, “no great abuse of discretion need be shown to warrant reversal.” Lords v. Newman (1984), 212 Mont. 359, 364, 688 P.2d 290, 293.

Generally, “mistake,” “inadvertence,” and “excusable neglect” require some justification for an error beyond mere carelessness or ignorance of the law on the part of the litigant or his attorney. Lomas and Nettleton Co. v. Wiseley (7th Cir. 1989), 884 F.2d 965, 967. Mr. Castor’s counsel has not offered an explanation other than his failure to note the rescheduled date of the hearing. Such a mistake is not enough to require setting aside a judgment under Rule 60(b), M.R.Civ.P. See Watson v. Fultz (1989), 239 Mont. 364, 369, 782 P.2d 361, 364 (no relief from judgment when attorney failed to notice hearing date in opponent’s motion to amend findings); Griffin v. Scott [500]*500(1985), 218 Mont. 410, 710 P.2d 1337 (no relief from judgment when attorney failed to read mail for five weeks because of work accumulated during his absence).

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Bluebook (online)
817 P.2d 665, 249 Mont. 495, 48 State Rptr. 807, 1991 Mont. LEXIS 226, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-castor-mont-1991.