MARRIAGE OF CARLSON
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No. 85-402 IN THE SUPREME COURT O F THE STATE OF MONTANA 1986 IN RE THE MARRIAGE OF KENNETH RAY CARLSON, Petitioner and Respondent, and VICKIE LYNN CARLSON, Respondent and Appellant. APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable William J. Speare, Judge presiding. COUNSEL OF RECORD: For Appellant: Steven J. Shapiro, Helena, Montana For Respondent: Kenneth Ray Carlson, pro se, Placentia, California Submitted on Brief: Nov. 21, 1985 Decided: February 13, 1986 Filed: Clerk Mr. Justice John C. Court. Sheehy delivered the Opinion of the Appeal by Vickie Lynn Carlson from an order entered by the District Court, Thirteenth Judicial District, Yellowstone County on June 24, 1985. For the reasons hereafter stated, the cause is remanded. These parties were before us in an earlier case, Carlson v. Carlson (Mont. 1984), 693 P.2d 496, 41 St.Rep. 2419. Kenneth and Vickie had married in 1 9 7 0 and divorced on July 5, 1979. They have three children, twjns now 12 years old and another child now 9 years old. In the original decree of marital dissolution, in 1979, the District Court had provided that Kenneth pay to the wife as custodian of the minor children, the sum of $ 1 5 0 . 0 0 for each child per month for their support and maintenance. The decree incorporated a contractual agreement to that effect. On April 6, 1984, the District Court, on application of Kenneth, by order amending the marital dissolution decree, reduced the payments to be made by Kenneth to Vickie to the sum of $ 7 5 . 0 0 per month per child. That order was appealed to this Court, and was the subject of our opinion in Carlson v. Carlson, supra. The effect of our opinion in the earlier case was to reverse the District Court's reduction of Kenneth's obligation for child support payments on the grounds that the District Court had no evidence before it to prove that the husband's change in earning circumstances were continuous, that his unemployment was permanent, or that his earning capacity had been substantially reduced. We remanded the cause for further evidence to be produced before the District Court as to the father's present earning capacity. at 501, 41 St.Rep. at 2425. 693 P.2d Carlson, We also stated that as to the claimed attorney fees, such an award on behalf of Vickie was not mandatory upon the District Court but was open for further proceedings before the District Court. After our remand to the District Court, counsel who until then had represented Kenneth obtained an order from the District Court permitting their withdrawal. Since April 11, 1985, Kenneth has not been represented by counsel in this cause. The proceedings that followed in the District Court did not track. exactly our order on remand. Vickie Instead counsel for (Vickie has remarried, and her present husband, an attorney, is also her counsel in all of these proceedings) filed three motions in the District Court: (1) A motior, to modify the decree of marital dissolution so as to permit Vickie to claim her support of the three minor children a-s tax exemptions and deductions for federal and state income tax purposes. (2) A motion for leave to file proposed findings and judgment (none of which proposed findings and judgment are in the record). (3) A motion for summary judgment in favor of Vickie and against Kenneth, which summary judgment would provide (a) that Kenneth's petition for modification of the child support payments was d.enied; (b) that Kenneth's obligation to pay $150 per month per child for the support of the three minor children shall continue until their respective ages of majority; (c) that Kenneth provide coverage for the minor children; (dl medical insurance that Vickie be given judgment aga.inst petitioner for past due child support in the sum of $6,765.83 as of May 31, 1985; (el that Vickie be that Vickie be given judgment for costs of $512.80; and (f) given judgment for attorney fees in the sum of $7,050.00. Hearing on these motions was scheduled by the District Court for June 19, 1985 and notice of the hearing on the motions was served by mail upon Kenneth at his address in Placentia, California. Kenneth did not appear hearing, nor was he represented by counsel. speculate as to what happened at the for the We can only hearing for no transcript of those proceedings has been provided on this appeal. Following the hearing the District Court issued. two orders. The first, on June 24, 1985, is the order which is the subject of this appeal. In that order, the District Court vacated its mod.ification of judgment earlier made on April 6, 1984, and. reinstated the duty of Kenneth to pay child support in the sum of $150.00 per month per child. On June 26, 1985, the District Court entered a second order, in which it provided that Vickie should he granted the right to claim the tax exemptions for the minor children. Vickie's counsel was apparently dissatisfied with the ord.er of June 24, 1985. 52 (b), M.R.Civ.P. He did not however file a Rule motion to amend or alter the judgment but instead wrote a letter to the court. He pointed out in the letter that "there still remain the issues of the arrearage of support, costs, attorneys fees, and. the tax deduction for the children." The letter stated: After the discussion with you at the hearing, we are willing to forego our request for the tax deductions for the children for the 1983 and 84 tax years if you will modify and sign the order I submitted to allow the Respondent to claim these If you will deductions for 1985 and thereafter. also sign the Summary Judgment I submitted with this change noted regarding the tax deductions, then I feel the ma.tter will. he closed. The order of June 26, 1985 is apparently the response of the District Court to this letter. On July 19, Vickie's counsel filed a notice of appeal to this Court from the order of June 2 4 , that "it fails to give her 1.985 on the grounds judgment for past due child support, attorney fees and costs." On July 30, 1985, the District Court entered a judgment, docketed August 8, 1985, which made the following provisions: (1) The original decree of dissolution was again "reinstated"; (2) Vickie was given judgment against Kenneth for past due child support in the sum of $6,765.83, including interest from May 31, 1985; (3) costs were awarded in the sum of $512.80; and (4) attorney fees were awarded in the sum of $3,000.00. Notice of entry of judgment has been given to Kenneth as to the judgment of July 30, 1985. No such notice has been given to Kenneth of the order of Jun.e 2 4 , of June 26, 1985. 1985, or the order Rule 77 (d) , M.R.Civ.P. This case is a legal hodgepodge, and reminds us of the gentleman who was so cross-purposed that he could mess up a one car funeral. The legal effect of what has occurred is this: (A) The iudgment - July - of 30, 1985. invalid. This judgment is It was entered after Vickie's notice of appeal had been filed which had the effect of depriving the District Court of further jurisdiction. McCormick v. McCormick (1975), 168 Mont. 136, 541 P.2d 765. (R) The order - - - 26, of June 1985. been appealed by Viclcie. This order has not It will become final as to Kenneth, if n o t i c e o f i t s e n t r y i s s e r v e d upon him p r o p e r l y and h e t a k e s no a p p e a l t h e r e f r o m . 668 P.2d Morrison v. 1029, 40 St.Rep. The - order (C) from o n l y a Higbee 1031. of Ju e 1985. - -n- 24, - portion ( ~ o n t .1 9 & 3 ) , of the Vickie has appealed judgment here. t o Vickie As t h e r e f o r e t h e judgment o f t h e D i s t r i c t C o u r t r e i n s t a t i n g t h e o b l i g a t i o n o f Kenneth t o pay t h e sum o f $150.00 p e r month p e r I t w i l l become f i n a l upon Kenneth, c h i l d h a s become f i n a l . if a f t e r he h a s been p r o p e r l y served w i t h a n o t i c e o f entry, he does not appeal M o r r i s o n v. therefrom. its Higbee, supra. V i c k i e ' s n o t i c e o f p a r t i a l a p p e s l from t h e o r d e r o f J u n e 1985 r e l a t e s 24, judgment for past due child support, attorney fees, and C u r i o u s l y , t h e s e a r e t h e f a c t o r s t h a t w e r e h a n d l e d by costs. in its t h e D i s t r i c t Court must f a i l u r e of t h e order t o include a t o the be declared void judgment hecause of July Vickie filed 30, 1985 which the notice of appeal. W e d o n o t have a t r a n s c r i p t o f t h e h e a r i n g t h a t o c c u r r e d on J u n e 1 9 , 1985. There i s i n t h e a p p e a l r e c o r d an a f f i d a v i t showing t h e amount o f t h e a r r e a r a g e . attorney fees District Court. is a matter Carlson, within 6 9 3 P.2d The o t h e r q u e s t i o n o f the at discretion 501, 41 of the St..Rep. at 2425. On t h e r e c o r d , Vickie is not e n t i t l e d t o costs, either f o r h e r f i r s t appeal o r t h i s appeal, because such c o s t s w e r e not claimed. i n a manner p r o v i d e d h i l l of late now claimed. un6er S c o s t s prepared for costs Because o f on the the i n 5 25-10-503, 25-10-501, first s t a t e of appeal the MCA by It MCA. to record, be we a is too properly further determine that Vickie is not entitled to costs on this appeal. Accordingly, this matter is remanded to the District Court with the following instructions: (1) The order of June 24, 1985, reinstating child support to be paid by Kenneth in the sum of $150.00 per month per child is affirmed as to Vickie. (2) The order of June 26, 1985, providing that the tax exemptions shall be claimed by Vickie, is affirmed as to Vickie. (3) The District Court shall enter judgment in favor of Vickie and against Kenneth for arrearages in child support in the sum of $6,765.83 which includes interest to Flay 31, 1985, and further interest on the principal balance of $6,709.94 at 10% per annum until paid.. (4) Vickie is not entitled to recover costs on this appeal nor to costs on the first appeal because of failure to claim the same under ยง 25-10-503, MCA; Vickie may claim such other costs in future proceedings to which the District Court may find she is entitled. (5) The District Court shall. determine the amount of attorney fees, if any, to which Vickie may be entitled, but no attorney fees may be awarded for this appeal. Reversed and remanded, with i ~ u c t i o n s . Justice We Concur:
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