In Re the Marriage of Markegard

2006 MT 111, 136 P.3d 532, 332 Mont. 187, 2006 Mont. LEXIS 202
CourtMontana Supreme Court
DecidedMay 23, 2006
Docket05-109
StatusPublished
Cited by15 cases

This text of 2006 MT 111 (In Re the Marriage of Markegard) 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 Markegard, 2006 MT 111, 136 P.3d 532, 332 Mont. 187, 2006 Mont. LEXIS 202 (Mo. 2006).

Opinions

CHIEF JUSTICE GRAY

delivered the Opinion of the Court.

¶1 Jane L. Markegard (Jane) appeals from the order entered by the Thirteenth Judicial District Court, Yellowstone County, denying her motion for relief from judgment and from the underlying judgment in this dissolution proceeding. We affirm.

¶2 The restated issues on appeal are:

¶3 1. Did the District Court abuse its discretion by denying Jane’s second post-trial motion, in which Jane first requested recusal or disqualification of the presiding judge due to Jane’s pre-petition meeting with the judge in her prior capacity as an attorney?

¶4 2. Did the District Court abuse its discretion in distributing the marital estate?

[189]*189BACKGROUND

¶5 In August of 2003, Rodney Pierce Markegard (Rod) petitioned for dissolution of his marriage to Jane. Judge Diane G. Barz originally presided over the case, and Judge Ingrid Gustafson took her place in January of 2004. The case proceeded to trial on November 10, 2004, and the District Court entered a decree of dissolution on November 16, 2004. The court characterized a business as Rod’s premarital asset and traced all but $23,179 of the proceeds from the sale of the home in which Rod and Jane lived to Rod’s premarital assets and Rod’s inheritance. In distributing the marital assets and debts, the court awarded Rod the real property where the business was located, along with certain associated debts.

¶6 Pursuant to Rules 59(a) and 60(b)(3), M.R.Civ.P., Jane moved to reopen the hearing so she could submit additional evidence on a matter relating to the property distribution. The District Court denied the motion on December 10, 2004, and Rod served Jane with notice of entry of judgment.

¶7 On January 26, 2005, Jane moved for reconsideration of the previously denied motion to reopen the hearing or, alternatively, for relief from judgment pursuant to Rules 60(b)(2) and 60(b)(6), M.R.Civ.P. She did not argue that the District Court had improperly denied her motion to reopen the hearing, but asked Judge Gustafson to vacate the judgment, grant a new trial and recuse herself based on “past representation and legal advise [sic] given to [Jane]” by Judge Gustafson before she became a judge.

¶8 In support of her Rule 60(b) motion, Jane filed her affidavit stating she had told her counsel on January 21, 2005, that, before Judge Gustafson assumed the bench, Jane had consulted with her for “somewhere between one and two hours,” obtained her “opinion as to the divorce expectations,” and paid for her services. Jane further averred that she and attorney Gustafson discussed “her marital situation, her marital strategy and other confidential information concerning her relationship with [Rod].” She stated she did not previously tell her counsel about the consultation-“even though [she] recognized the Judge at the time of the hearing on the dissolution proceedings” in November of 2004-because she “was intimidated by the proceedings, and did not know the appropriate information to pass on to her counsel.” She stated “third parties” encouraged her to'report the prior contact. She also stated she believed the knowledge gleaned during the consultation “may have influenced the Court, or at a minimum, your affiant’s confidence has been diminished that your [190]*190Honor could fairly rule on the marital issues due tho [sic] this past representation.”

¶9 The District Court denied Jane’s motion. In the order, Judge Gustafson stated she had contacted her former law firm and learned she had met for 1.3 hours with Jane on July 28, 2003, Jane had paid $108 for the consultation, and Jane did not retain Gustafson or the firm. Judge Gustafson further related that, to avoid the appearance of impropriety in other cases, she had recused herself immediately upon learning she had represented a party or met with a prospective litigant in her capacity as an attorney. In addition, Judge Gustafson stated that, other than her post-judgment review of the firm’s records, she had “no recollection, whatsoever, of ever consulting with [Jane],” she did not remember the subject matter of the consultation-although she presumed it likely was related to dissolution issues-and she had not recognized Jane or the circumstances of the case during the proceedings. The judge explained she “would not hesitate to set aside the Judgment entered herein if [she] believed that her encounter with [Jane] ... in any way influenced, biased or prejudiced the Court’s Findings of Fact, Conclusions of Law and Decree of Dissolution. Such is not the case.” Judge Gustafson suggested that, if the decree of dissolution had adopted Jane’s proposed property distribution, Jane likely would not have reported the consultation and “would have been content to, in essence, reap the benefit of any prior contact[.]” The judge opined Jane was “merely seeking another bite at the apple,” expressed concern about Jane’s “apparent game playing” and stated she was denying J ane’s motion “to protect the integrity of the Judiciary ... and to avoid the blatant manipulation of this Court[.]”

¶10 Jane appeals. We set forth additional facts in the discussion below.

STANDARD OF REVIEW

¶11 We review a district court’s denial of a Rule 60(b), M.R.Civ.P., motion for abuse of discretion. See In re P.D.L., 2004 MT 346, ¶ 8, 324 Mont. 327, ¶ 8, 102 P.3d 1225, ¶ 8 (citation omitted). We review a district court’s distribution of property in a marriage dissolution case to determine whether the findings of fact are clearly erroneous; if the findings are not clearly erroneous, we affirm unless the district court abused its discretion. See In re Marriage of Grende, 2004 MT 36, ¶ 18, 320 Mont. 38, ¶ 18, 85 P.3d 788, ¶ 18 (citations omitted).

[191]*191DISCUSSION

¶12 1. Did the District Court abuse its discretion by denying Jane’s second post-trial motion, in which Jane first requested recusal or disqualification of the presiding judge due to Jane’s pre-petition meeting with the judge in her prior capacity as an attorney ?

¶13 On appeal, Jane barely acknowledges that the procedural posture of this appeal involves her challenge to the District Court’s denial of her Rule 60(b), M.R.Civ.P., motion for relief from judgment. Jane’s argument is that Judge Gustafson was disqualified under

§ 3-1-803(3), MCA, or was required to recuse herself after judgment to avoid “the appearance of impropriety.” In this regard, Jane mistakenly sets forth the “correctness” standard of review-generally applicable to conclusions of law-rather than the “abuse of discretion” standard applicable to the denial of her motion for relief from judgment. We begin with Rule 60(b), M.R.Civ.P., because Jane submitted her post-judgment motion-and the District Court decided it-under that rule.

¶14 Rule 60(b), M.R.Civ.P., provides, in pertinent part, that

[o]n motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: ... (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);... or (6) any other reason justifying relief from the operation of the judgment.

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Cite This Page — Counsel Stack

Bluebook (online)
2006 MT 111, 136 P.3d 532, 332 Mont. 187, 2006 Mont. LEXIS 202, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-markegard-mont-2006.