Opinion
DA 23-0713
10-22-2024
IN RE THE MARRIAGE OF: MATTHEW THOMAS BASQUE, Petitioner and Appellant, and GINA ALICIA BASQUE, Respondent and Appellee.
For Appellant: Larry D. Mansch, Snyder, Beaudry &Cook PC, Bigfork, Montana For Appellee: Jill LaRance, LaRance Law Firm, P.C., Billings, Montana
Submitted on Briefs: September 18, 2024
APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DR 22-1116 Honorable Donald Harris, Presiding Judge
COUNSEL OF RECORD:
For Appellant: Larry D. Mansch, Snyder, Beaudry &Cook PC, Bigfork, Montana
For Appellee: Jill LaRance, LaRance Law Firm, P.C., Billings, Montana
James Jeremiah Shea, Justice.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion, shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 Matthew Thomas Basque appeals from the Thirteenth Judicial District Court, Yellowstone County's November 17, 2023 order denying his motion for a new trial pursuant to M. R. Civ. P. 59, and for relief from judgment pursuant to M. R. Civ. P. 60(b)(1) and (6). We affirm.
In her response brief, Gina asserts that Matthew's appeal should be "summarily dismissed" because he did not appeal the fifteen-year order of protection issued by the District Court and only pursued an appeal on the post-trial motion's order. Other than making this assertion in her argument summary, Gina does not provide any authority or further support for this assertion. Therefore, we decline to consider this argument. We will not consider unsupported issues, locate authority, or formulate arguments for a party in support of positions taken on appeal. In re Marriage of McMahon, 2002 MT 198, ¶ 6, 311 Mont. 175, 53 P.3d 1266 (citations omitted).
¶3 Matthew and Gina married in 2010. On October 26, 2022, the Yellowstone County Justice Court issued a temporary order of protection against Matthew. The next day, Matthew filed dissolution proceedings in Yellowstone County District Court. The District Court accepted jurisdiction over the temporary order of protection after it was removed by order of the Justice Court. On December 15, 2022, the District Court adopted the parties' stipulated agreement removing the parties' children from the temporary order of protection and extending the terms pertaining to Gina until June 15, 2023.
¶4 On June 15, 2023, Gina filed an emergency motion and affidavit in support requesting that the District Court extend the expiring order of protection for an additional six months. The District Court extended the order through September 1, 2023, and set a hearing for August 28, 2023.
¶5 On August 17, 2023, the District Court granted Matthew's counsel's motion to withdraw and reset the order of protection hearing to September 27, 2023. A copy of the order was mailed to Matthew. Gina's attorney also mailed a notice advising Matthew of the September 27, 2023 hearing pursuant to Rule 10 of the Montana Uniform District Court Rules. The District Court held the hearing as scheduled. Matthew failed to appear. Gina testified and presented evidence. On September 28, 2023, the District Court issued an order of protection against Matthew for a period of fifteen years.
¶6 On October 20, 2023, Matthew, representing himself, moved for relief from the order pursuant to M. R. Civ. P. 59(a)(2), 60(b)(1), and 60(b)(6). His accompanying affidavit stated he mistakenly calendared the hearing date as September 28, and he requested a new hearing to present his defense. Gina opposed the motion, responding that Matthew had proper notice and an opportunity to be heard. Matthew's reply brief restated his desire to present his defense, but like the affidavit filed with his motion, did not identify the grounds for granting him relief other than his status as a pro se litigant and his own scheduling error.
¶7 The District Court denied Matthew's motion. The court found Matthew was not entitled to a new hearing pursuant to Rule 59 because he had proper notice of the September 27, 2023 hearing; he was not deprived of his substantive rights; and he had not alleged a proper basis for relief under the rule. The court denied Matthew's request under Rule 60(b)(1) because, following our precedent in In re Marriage of Castor, 249 Mont. 495, 499, 817 P.2d 665, 667 (1991), his failure to calendar the correct hearing date did not rise to the level of mistake required by the rule to set aside a judgment. Finally, the court denied Matthew's request under Rule 60(b)(6) because he failed to show that he was entitled to relief due to a situation other than those enumerated in the first five subsections of Rule 60(b), as demonstrated by his claiming mistake pursuant to Rule 60(b)(1).
¶8 We review a district court's ruling on post-trial motions for an abuse of discretion. In re Marriage of Schoenthal, 2005 MT 24, ¶ 9, 326 Mont. 15, 106 P.3d 1162 (applying abuse of discretion standard to denial of M. R. Civ. P. 59 motion); In re Marriage of Remitz, 2018 MT 298, ¶ 8, 393 Mont. 423, 431 P.3d 338 (applying abuse of discretion standard to denial of M. R. Civ. P. 60(b)(1) and (6) motion). 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 Ins. Co. v. Moose's Saloon, Inc., 2007 MT 202, ¶ 19, 338 Mont. 423, 166 P.3d 451 (internal quotations and citations omitted).
¶9 Regarding the District Court's Order as it pertained to Rule 59(a)(2), Matthew argues the District Court erred because the Order did not "discuss or analyze the merits of the motion," and by refusing to reopen the hearing, the District Court deprived Matthew of the opportunity to be heard. Gina responds that the District Court properly found Matthew failed to put forth a proper basis for relief under Rule 59(a)(2), and Matthew was not deprived of an opportunity to be heard because he concedes he had notice of the hearing but did not appear due to his own error.
¶10 Upon a party's motion after a non-jury trial, Rule 59(a)(2) gives a court the authority to open an entered judgment, take additional testimony, amend or add findings of fact and conclusions of law, and enter a new judgment. M. R. Civ. P. 59(a)(2). A new trial will only be granted if the movant shows his substantial rights were materially affected by at least one of the following causes: (1) irregularity in the proceedings that prevented the movant from receiving a fair trial; (2) accident or surprise that ordinary prudence could not have prevented; or (3) newly discovered evidence that the movant could not, with reasonable diligence, have discovered and produced at the trial. Section 25-11-103, MCA. A Rule 59 motion may not be used to raise arguments that the movant could, and should, have brought before entry of judgment or to "give litigants a second bite at the apple." Nelson v. Driscoll, 285 Mont. 355, 361, 948 P.2d 256, 259 (1997) (internal quotations and citations omitted).
¶11 Matthew's contentions regarding the lack of rationale underlying the District Court's Order are unavailing. Matthew did not provide the District Court with any basis upon which to grant his motion under Rule 59. He did not identify an irregularity with the proceeding. He did not contend he had newly discovered evidence; he only asked for an opportunity to present his defense. He had that opportunity at the originally scheduled hearing at which he failed to appear. Matthew's "own inattention or negligence" in failing to appear after misplacing the date on his calendar is the type of accident ordinary prudence could have prevented. Ewing v. Esterholt, 210 Mont. 367, 373, 684 P.2d 1053, 1057 (1984).
¶12 Similarly, we are unconvinced that Matthew's substantive rights were violated. "Due process is accorded where a party is given sufficient notice of a trial and the trial is held, regardless of whether the party actually avails himself of the opportunity to be heard." In re Marriage of Fishbaugh, 2002 MT 175, ¶ 15, 310 Mont. 519, 52 P.3d 395 (citing In re Marriage of Robbins, 219 Mont. 130, 138, 711 P.2d 1347, 1352 (1985)). In Marriage of Fishbaugh, the father failed to appear at a dissolution hearing after the court denied his request for a continuance. Marriage of Fishbaugh, ¶ 12. We concluded the father's due process rights were not violated because the father received notice and an opportunity to be heard. Marriage of Fishbaugh, ¶ 15. Matthew attempts to distinguish Marriage of Fishbaugh on the ground it was about a motion to continue, and not a post-trial motion. The due process analysis in this case is the same as in Marriage of Fishbaugh-we must consider whether Matthew had notice and an opportunity to be heard. Matthew's argument that the District Court denied him an opportunity to be heard mischaracterizes the District Court's actions. Matthew does not dispute that he had proper notice of the September 27, 2023 hearing. After Matthew's counsel withdrew, the District Court rescheduled the hearing for one month later, allowing sufficient time for Matthew to hire a new attorney or prepare his defense. Matthew also received notice from Gina's attorney. The District Court held the hearing and Matthew had an opportunity to be heard at the set time and place. The essential elements of due process were satisfied and the District Court properly precluded Matthew from raising arguments he could, and should, have brought at the September 27, 2023 hearing. Nelson, 285 Mont. at 361, 948 P.2d at 259.
On appeal, Matthew discusses at length the restrictions placed by the order of protection on his ability to possess firearms. This argument was not raised in his post-trial motion to the District Court. We decline to consider it because we will not "address an issue raised for the first time on appeal. A party may not raise new arguments or change its legal theory on appeal." State v. Martinez, 2003 MT 65, ¶ 17, 314 Mont. 434, 67 P.3d 207 (internal citations omitted).
¶13 The District Court did not abuse its discretion in denying Matthew's motion pursuant to Rule 59.
¶14 Regarding the District Court's denial of Matthew's motion pursuant to Rule 60(b)(1) and (6), Matthew argues the District Court should have recognized his calendaring error as excusable neglect because, even though it was "inadvertent and careless," he intended to appear at the hearing. Gina responds that, beyond his own carelessness, Matthew did not provide the District Court with the additional justification required to set aside a judgment for mistake or excusable neglect.
¶15 In relevant part, Rule 60(b) allows a court to relieve a party from a final judgment, order, or proceeding if the party can show "mistake, inadvertence, surprise, or excusable neglect" or "any other reason that justifies relief." M. R. Civ. P. 60(b)(1), (6). An error is considered a mistake, inadvertence, surprise, or excusable neglect when there is "some justification . . . beyond mere carelessness or ignorance of the law on the part of the litigant." Marriage of Castor, 249 Mont. at 499, 817 P.2d at 667. There is no excusable neglect when "a party, aware of the contents of the documents served, ignores the command of the summons." Whitefish Credit Union v. Sherman, 2012 MT 267, ¶ 20, 367 Mont. 103, 289 P.3d 174. Rule 60(b)(6) is reserved for the "extraordinary situations when circumstances go beyond those covered" in the other subsections of Rule 60(b). Marriage of Castor, 249 Mont. at 500, 817 P.2d at 668.
¶16 Applying Marriage of Castor, the District Court concluded Matthew did not provide a justification beyond mere carelessness. In Marriage of Castor, we held that failing to note a rescheduled hearing date, absent additional explanation, was not enough to require setting aside a judgment under Rule 60(b). Marriage of Castor, 249 Mont. at 499, 817 P.2d at 667. Matthew does not dispute he was properly served with the District Court's order rescheduling the hearing and Gina's Rule 10 notice, both of which advised him of the correct date and time of the hearing. Calendaring the incorrect date was nothing more than Matthew's own carelessness. Citing Marriage of Castor, the District Court correctly noted, "[this] type of neglect does not rise to a level that warrants relief from an order under Rule 60(b)(1)." Matthew provides us with no authority to support his contention that we should recognize an "innocent" mistake as excusable neglect and deviate from the general rule requiring more than carelessness or ignorance.
¶17 Matthew does not explicitly address the application of Rule 60(b)(6) in his brief to this Court. Nevertheless, we see nothing in the record that would lead us to conclude the District Court abused its discretion when it denied Matthew's request for relief under Rule 60(b)(6). We have repeatedly held that relief under Rule 60(b)(6) is only available when the other subsections of the rule do not apply. Detienne v. Sandrock, 2017 MT 181, ¶ 41, 388 Mont. 179, 400 P.3d 682 (citations omitted). Matthew sought relief under Rule 60(b)(1), and by doing so the District Court correctly concluded he was barred from seeking relief under Rule 60(b)(6). Detienne, ¶ 41.
¶18 The District Court did not abuse its discretion when it denied Matthew's requests for relief under Rule 60(b).
¶19 Finally, we note Matthew's status as a pro se litigant during the order of protection proceeding does not entitle him to unlimited latitude, as he seems to suggest. Matthew compares his conduct to that of the pro se litigant in First Bank of Billings v. Heidemas, where we affirmed entry of judgment against Heidemas because he acted willfully and in bad faith by refusing to participate in discovery. First Bank of Billings v. Heidemas, 219 Mont. 373, 375, 711 P.2d 1384, 1386 (1986). But Heidemas only offers an example of when a pro se litigant will not be afforded lenity; it does not change the general rule that any special consideration given to a pro se party cannot prejudice the other party. Heidemas, 219 Mont. at 376, 711 P.2d at 1386.
¶20 More to the point, Matthew was granted considerable latitude in these proceedings. When Matthew's third attorney withdrew ten days before the hearing, it is not as if the District Court forced Matthew to represent himself or move forward with counsel that had inadequate time to prepare. On its own initiative, the District Court continued the protection hearing for a month, providing Matthew enough time to hire new counsel or prepare for the hearing himself. Matthew had notice of the hearing, both from the District Court and Gina's counsel. He did not seek a continuance of the hearing or seek any other accommodations from the District Court in advance of the hearing. He just failed to appear for reasons that do not satisfy the criteria of either Rule 59 or Rule 60. Matthew's pro se status does not provide an additional basis that is not otherwise covered by those rules to afford him another "bite at the apple" due to his scheduling error. Nelson, 285 Mont. at 361, 948 P.2d at 259. The District Court afforded Matthew an appropriate amount of latitude given his pro se status at the time of the hearing.
¶21 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the case presents a question controlled by settled law or by the clear application of applicable standards of review. The District Court did not abuse its discretion in denying Matthew's post-trial motion. The District Court's order is affirmed.
Nothing in this Opinion precludes Matthew from filing a future motion to terminate the Order of Protection, supported by affidavit setting forth the basis for seeking termination of the order and providing evidence as to why the Order of Protection is no longer necessary. Section 40-15-204(5), MCA. See also Anderson v. Larson, 2018 MT 155, 392 Mont. 29, 420 P.3d 1018.
We Concur: LAURIE McKINNON, BETH BAKER, INGRID GUSTAFSON, JIM RICE A