In Re the Marriage of Orcutt

2011 MT 107, 253 P.3d 884, 360 Mont. 353, 2011 Mont. LEXIS 135
CourtMontana Supreme Court
DecidedMay 17, 2011
DocketDA 10-0372
StatusPublished
Cited by18 cases

This text of 2011 MT 107 (In Re the Marriage of Orcutt) 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 Orcutt, 2011 MT 107, 253 P.3d 884, 360 Mont. 353, 2011 Mont. LEXIS 135 (Mo. 2011).

Opinions

JUSTICE WHEAT

delivered the Opinion of the Court.

¶1 Charlene Orcutt (Charlene) appeals from an order of the Seventh Judicial District Court, Dawson County, denying her Amended M. R. Civ. P. 60(b)(6) Motion to Set Aside and Amend Findings of Fact, Conclusions of Law, and Decree of Dissolution. We reverse.

¶2 Charlene married Kelly Orcutt (Kelly) on July 3, 1984, in Dawson County, Montana. Charlene hired an attorney, Sheila Newman (Ms. Newman), who filed a Petition for Dissolution on May 6, 2009. Kelly also hired an attorney, and responded. A hearing on Charlene’s petition was held January 11,2010, at which both Charlene and Kelly personally appeared with their counsel. Essentially, the only contested issue at the hearing was the valuation and division of Charlene and Kelly’s home and surrounding acreage (“marital home’), which was purchased for $45,000 in the mid-1990s.

¶3 On August 4, 2009, Charlene obtained a letter from a realtor stating the marital home could be worth approximately $250,000-$275,000, if the home was in good condition and the “sea of junk vehicles” was removed. Ms. Newman did not disclose the realtor as an expert witness by the District Court’s deadline, September 12, 2009. The realtor was not allowed to testify at the hearing (and apparently was not even present), nor could Charlene submit any evidence about the realtor’s opinion. Neither party had the marital home appraised. The only evidence about the value of the marital home was the Dawson County Property Tax Notice, indicating a value of $22,423, submitted by Kelly. Ms. Newman did not ask Charlene what she thought the value of the marital home was, nor was any evidence about the value of the marital home introduced by Ms. Newman. The District Court issued its Findings of Fact, Conclusions of Law, and Decree on February 8, 2010, where it “reluctantly” valued the marital home at $22,423.

¶4 Charlene obtained new counsel and filed an Amended Motion to Set Aside Findings of Fact, Conclusions of Law, and Decree on March 16, 2010. Pursuant to M. R. Civ. P. 60(b)(6), Charlene argued that her first attorney, Ms. Newman, grossly neglected her case when she failed to identify the realtor as an expert, or any other qualified real estate [355]*355expert, and failed to prepare any evidence for trial to reflect Charlene’s estimated value of the marital home. A hearing was held on the motion on June 30, 2010, at which both Charlene and Kelly appeared with their counsel. The District Court denied Charlene’s motion, finding Charlene failed to 1) provide proof that the realtor would have been qualified to testify as an expert, 2) attempt to call the realtor to testify during trial, 3) present testimony of the cost of cleaning up the marital home, and 4) disclose information about the alleged expert realtor as required by order of the court. Ultimately, the only evidence about the value of the marital home was provided by Kelly, via his testimony and tax records. Charlene appeals from that order.

STANDARD OF REVIEW

¶5 Our review of a district court’s ruling on a motion pursuant to M. R. Civ. P. 60(b) depends on the nature of the final judgment, order, or proceeding from which relief is sought and the specific basis of the motion. Essex Ins. Co. v. Moose’s Saloon, Inc., 2007 MT 202, ¶ 16, 338 Mont. 423, 166 P.3d 451. Generally, we review the district court’s ruling for an abuse of discretion. Id. Exceptions to the general rule include motions made under Rule 60(b)(2), (b)(4), or where relief from a default judgment is sought. Id. at ¶¶ 16-17. Given the facts of this case, the abuse of discretion standard applies.

¶6 When the district court refuses to set aside the judgment, only a slight abuse of discretion need be shown. Skogen v. Murray, 2007 MT 104, ¶ 11, 337 Mont. 139, 157 P.3d 1143; Karlen v. Evans, 276 Mont. 181, 185, 915 P.2d 232, 235 (1996). A district court abuses its discretion when it acts arbitrarily without employment of conscientious judgment or exceeds the bounds of reason resulting in substantial injustice. Essex, ¶ 19.

DISCUSSION

¶7 Did the District Court abuse its discretion when it denied Charlene’s M. R. Civ. P. 60(b)(6) motion?

¶8 Charlene argues that Ms. Newman failed to prepare for trial by failing to list the realtor as an expert witness, thereby denying Charlene the ability to present evidence about the value of the marital home. Charlene seeks relief under Rule 60(b)(6).

¶9 M. R. Civ. P. 60(b) provides:

On 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: (1) mistake, [356]*356inadvertence, surprise, or excusable neglect; (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); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.

¶10 Charlene’s motion was based on subsection (6). Relief under this subsection is appropriate only in extraordinary circumstances which go beyond those covered by the first five subsections. Essex, ¶ 21. Before a final judgment can be modified under Rule 60(b)(6), it must first be shown that none of the other five subsections apply. Id.

¶11 Rule 60(b)(6) is not intended to be a substitute for appeal. Id. at ¶ 22. A motion under Rule 60(b)(6) must be more than a request for rehearing, or a request for the district court to change its mind; it must be shown that something prevented a full presentation of the cause or an accurate determination of the merits that for reasons of fairness and equity redress is justified. Id.

¶12 A successful Rule 60(b)(6) motion based upon alleged error by a movant’s attorney requires that the movant demonstrate each of these three elements: 1) extraordinary circumstances, such as gross neglect or actual misconduct by an attorney; 2) the movant acted to set aside the judgment within a reasonable period of time; and 3) the movant was blameless. Peak Development, LLP v. Juntunen, 2005 MT 82, ¶ 17, 326 Mont. 409, 110 P.3d 13 (overruled in part by Essex, ¶ 25 n. 4); Skogen, ¶ 13.

¶13 As an initial matter, we note that the District Court could have denied Charlene’s motion because she did not show that the first five subsections of Rule 60(b) did not apply. Essex, ¶ 23. However, the District Court did not address this issue, but instead addressed the merits of Charlene’s motion. It should be noted that “in cases of an attorney s mistake, inadvertence, misconduct or neglect in representation of a client, either subsection (1) or subsection (6) may be applicable, depending on the facts, the nature and the seriousness of the mistake, inadvertence, misconduct, or neglect involved.” Karlen, 276 Mont. at 190, 915 P.2d at 238. We find the facts here allow for relief under subsection (6).

[357]

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Cite This Page — Counsel Stack

Bluebook (online)
2011 MT 107, 253 P.3d 884, 360 Mont. 353, 2011 Mont. LEXIS 135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-orcutt-mont-2011.