author: JUSTICE GRAY

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. VINCENT MARTINEZ, Defendant and Appellant.
    No. 97-332.
    Submitted on Briefs July 2, 1998.
    Decided November 5, 1998.
    1998 MT 265.
    55 St.Rep. 1093.
    291 Mont. 306.
    968 P.2d 705.

      For Appellant: William A. D’Alton, Deputy Public Defender, Billings.
    For Respondent: Joseph P. Mazurek, Attorney General, Pam Collins, Assistant Attorney General, Helena; Dennis Paxinos, Yellowstone County Attorney, Billings.
   JUSTICE GRAY

delivered the Opinion of the Court.

¶1 Vincent Martinez (Martinez) appeals from the judgment entered by the Thirteenth Judicial District Court, Yellowstone County, on a jury verdict finding him guilty of felony assault and criminal endangerment. We affirm.

¶2 We address the following issues:

¶3 1. Did the District Court err in refusing Martinez’s proposed jury instruction on misdemeanor assault as a lesser included offense of felony assault?

¶4 2. Did the District Court err in refusing Martinez’s proposed jury instruction on negligent endangerment as a lesser included offense of criminal endangerment?

¶5 3. Did the District Court abuse its discretion when it denied Martinez’s motion for a continuance on the day of trial?

BACKGROUND

¶6 On the evening of December 30,1995, Jason Gillespie (Gillespie) and three of his friends were out driving around in Billings, Montana. Gillespie eventually decided to go home and had his friends return him to the house where he had left his car. When they pulled up to the house, they observed Martinez and Chad Peak (Peak) fighting in the front yard. While his friends went into the house, Gillespie stood next to his parked car and watched the fight. Peak eventually disengaged from the fight, left the yard and started running down the street. Gillespie then observed Martinez pull a .22 caliber handgun out from underneath his clothing, aim the gun toward Peak and fire a shot.

¶7 After firing at Peak, Martinez turned, pointed the gun at Gillespie and told him to get into Martinez’s nearby truck. Gillespie did so and Martinez drove off with Gillespie toward Laurel, Montana, at a high rate of speed. Upon reaching Laurel, Martinez stopped in the Pelican Truck Stop parking lot for a short time, then drove to a trailer park where Dan Sisk (Sisk) lived. Martinez got out of the truck, told Gillespie to stay where he was and went into Sisk’s garage. While Martinez was in the garage talking to Sisk, Gillespie climbed out the truck’s passenger-side window, ran to a neighboring trailer and called 911. Officers from the Laurel police department and the Yellowstone County sheriff’s department arrived shortly thereafter and, after a brief high-speed chase, arrested Martinez in the Pelican Truck Stop parking lot.

¶8 Martinez was charged by amended information in the District Court with the offenses of kidnaping, a felony, in violation of § 45-5-302, MCA; felony assault, in violation of § 45-5-202, MCA; criminal possession of dangerous drugs, a felony, in violation of § 45-9-102, MCA; and criminal endangerment, a felony, in violation of § 45-5-207, MCA. The criminal possession of dangerous drugs charge subsequently was dismissed and a jury trial was held on the remaining three counts. The jury found Martinez not guilty of kidnaping and guilty of both felony assault and criminal endangerment. The District Court sentenced Martinez and entered judgment and Martinez appeals.

DISCUSSION

¶9 1. Did the District Court err in refusing Martinez’s proposed jury instruction on misdemeanor assault as a lesser included offense of felony assault?

¶ 10 A criminal defendant is entitled to an instruction on a lesser included offense if the jury, in light of the evidence presented, could be warranted in finding the defendant guilty of the lesser, rather than the greater, offense. Section 46-16-607(2), MCA; State v. Fisch (1994), 266 Mont. 520, 522, 881 P.2d 626, 628. Two criteria must be met before a defendant is entitled to a lesser included offense instruction. First, the offense must actually constitute a lesser included offense of the offense charged, and, second, there must be sufficient evidence to support the included offense instruction. Fisch, 266 Mont. at 522, 881 P.2d at 628. Furthermore, although a defendant is entitled to jury instructions on every issue or theory having support in the evidence, a lesser included offense instruction is not supported by the evidence where the defendant’s evidence or theory, if believed, would require an acquittal. State v. Schmalz, 1998 MT 210, ¶23, [290 Mont. 420], 964 P.2d 763, ¶23. In this case, because we conclude that the evidence did not support Martinez’s proposed instruction, we need not address whether misdemeanor assault is a lesser included offense of felony assault.

¶11 Martinez was charged with felony assault under § 45-5-202(2)(b), MCA, for purposely or knowingly causing reasonable apprehension of serious bodily injury by use of a weapon when he pointed the handgun at Gillespie. At trial, Gillespie was the prosecution’s only witness on the felony assault charge. Gillespie testified that, when Peak began running down the street, Martinez turned to him, jabbed him in the chest with the gun, called him a bastard for not having helped Martinez in the fight with Peak and told him that Martinez would “get him next.” According to Gillespie, Martinez then fired the gun at Peak, turned back to Gillespie, pointed the gun at his head or chest and told him to get into Martinez’s truck. Gillespie further testified that, when Martinez pointed the gun at him, he was in fear for his life because he thought Martinez would shoot him. Martinez did not testify on his own behalf to controvert Gillespie’s version of what happened. Consequently, Gillespie’s testimony was the only evidence supporting the felony assault charge.

¶12 Martinez’s theory at trial was that Gillespie was not a credible witness. On cross- examination of Gillespie, Martinez’s counsel established a number of inconsistencies between Gillespie’s trial testimony and his previous statements to law enforcement officers regarding the events of December 30,1995. For example, Gillespie gave differing descriptions of the manner in which Martinez pulled out the gun and from what part of his clothing Martinez withdrew the gun. Further, Gillespie was unclear as to whether Martinez pointed the gun at his head, his chest or some other part of his body. Defense counsel also elicited admissions from Gillespie that he had lied to law enforcement in various aspects of his prior statements, previously had been addicted to methamphetamine and had smoked marijuana on the night in question.

¶13 During settlement of jury instructions, Martinez’s counsel offered a proposed jury instruction that misdemeanor assault as defined in § 45-5-20 l(l)(d), MCA, is a lesser included offense of the felony assault with which Martinez was charged. Section 45-5-201(l)(d), MCA, provides that a person commits the offense of misdemeanor assault if he or she “purposely or knowingly causes reasonable apprehension of bodily injury in another.” The District Court refused to give the proposed misdemeanor assault instruction and Martinez contends that the court erred.

¶14 Martinez argues that there was sufficient evidence before the jury to warrant an instruction on misdemeanor assault. His argument is premised on his contention that Gillespie was not a credible witness and, therefore, that the jury reasonably could have discounted Gillespie’s testimony as to the manner in which Martinez used the gun and found that the gun was not a factor in the assault. Accordingly, urges Martinez, the jury could have determined that the “with a weapon” element of felony assault under § 45-5-202(2)(b), MCA, had not been established and that Martinez committed only misdemeanor assault by putting Gillespie in reasonable apprehension of bodily injury.

¶ 15 As discussed above, Gillespie provided the only testimony at trial regarding the specific events underlying the felony assault charge. The only other eyewitness to the events was Martinez, and he did not testify. As a result, if the jury had discounted Gillespie’s testimony — as Martinez asserts it should have — there would have been no evidence at all in support of an assault charge. The absence of evidence establishing the elements of a criminal charge supports a verdict of acquittal. See State v. Mergenthaler (1994), 263 Mont. 198, 203, 868 P.2d 560, 562-63. Moreover, a lesser included offense instruction is not supported by the evidence where the defendant’s evidence or theory, if believed, would require an acquittal. Schmalz, ¶23. As a result, we conclude that, under Martinez’s theory, the evidence before the jury did not support an instruction on misdemeanor assault. Therefore, we hold that the District Court did not err in refusing Martinez’s proposed jury instruction on misdemeanor assault.

¶16 2. Did the District Court err in refusing Martinez’s proposed jury instruction on negligent endangerment as a lesser included offense of criminal endangerment?

¶17 Martinez also was charged with criminal endangerment, a felony, in violation of § 45- 5-207, MCA, for knowingly engaging in conduct which created a substantial risk of death or serious bodily injury to another by firing a shot at Peak. Gillespie’s testimony was the prosecution’s primary evidence in support of this charge and he testified that he observed Martinez pull the handgun out from under his clothing, aim the gun at Peak and fire a shot at Peak’s back. Peak testified that, although he saw Martinez reaching for something and heard the report of a gunshot, he did not actually see Martinez with a gun in his hand. Moreover, because he was running away from Martinez, Peak did not observe Martinez shoot the gun. Thus, Peak could not testify whether Martinez aimed the gun at him or anywhere in his general direction. As stated above, Martinez did not testify on his own behalf to controvert Gillespie’s testimony.

¶18 Martinez offered a proposed jury instruction on negligent endangerment as a lesser included offense of criminal endangerment. Negligent endangerment is defined as negligently engaging in conduct that creates a substantial risk of death or serious bodily injury to another. Section 45-5-208, MCA. The District Court refused the instruction and Martinez asserts error.

¶19 Martinez advances the same argument here as he advanced regarding his proposed instruction on misdemeanor assault. He contends that, because Gillespie was not a credible witness, the jury could have discounted Gillespie’s testimony and, as a result, reasonably could have found that Martinez acted negligently, rather than knowingly, in shooting the gun. Under this scenario, Martinez posits that the jury could have found him guilty of the lesser charge of negligent endangerment. Here again, because we conclude that the evidence did not support Martinez’s proposed jury instruction, we need not address the threshold criterion of whether negligent endangerment is a lesser included offense of criminal endangerment.

¶20 Gillespie’s testimony was the only evidence admitted at trial that Martinez fired the gun at Peak. If the jury discounted Gillespie’s testimony as incredible, there would have been no evidence at all regarding Martinez’s actions and the absence of evidence would have required a verdict of acquittal. See Schmalz, ¶23. As a result, we conclude that, under Martinez’s theory here, the evidence before the jury did not support an instruction on negligent endangerment. We hold, therefore, that the District Court did not err in refusing Martinez’s proposed jury instruction on negligent endangerment.

¶21 3. Did the District Court abuse its discretion when it denied Martinez’s motion for a continuance on the day of trial?

¶22 Section 46-13-202, MCA, provides, in part, as follows:

(2) The court may upon the motion of either party or upon the court’s own motion order a continuance if the interests of justice so require.
(3) All motions for continuance are addressed to the discretion of the trial court and must be considered in the light of the diligence shown on the part of the movant. This section must be construed to the end that criminal cases are tried with due diligence consonant with the rights of the defendant and the prosecution to a speedy trial.

Thus, it is within a district court’s discretion to determine, in light of the interests of justice and the due diligence of the moving party, whether to grant a motion for a continuance. Consequently, we review a district court’s denial of a motion for continuance in a criminal case to determine whether the court abused its discretion. State v. Big Hair, 1998 MT 61, ¶9, [288 Mont. 135], 955 P.2d 1352, ¶9 (citation omitted).

¶23 The trial in this case initially was set for April 29,1996. After several continuances, trial was rescheduled for November 18, 1996. On that date, the prosecution requested another continuance as a result of its inability to locate its primary witness, Gillespie, and the District Court set trial for December 2,1996. During the interim, the prosecution located Gillespie in Wyoming and Martinez’s counsel requested an opportunity to interview Gillespie prior to trial. The interview did not occur until the day before the trial date and, during the interview, defense counsel learned that Gillespie had been addicted to methamphetamine before and at the time of the events on which the charges against Martinez were based. Further, defense counsel learned of a number of inconsistencies in Gillespie’s description of the events as compared to his previous statements.

¶24 On the morning of trial, Martinez requested the District Court to continue the trial date to allow him to interview witnesses regarding information that came to light during the Gillespie interview and to locate an expert witness to testify as to the effects of long-term use of methamphetamine on the ability of a witness to accurately recollect events. The court denied the request and proceeded with the trial. Martinez asserts that the District Court abused its discretion in denying his request for a continuance because the revelation of Gillespie’s inconsistent version of the events at issue and admission of drug addiction, on the eve of trial, hampered his defense.

¶25 Martinez’s first contention is that the prosecution should have made Gillespie available for an interview prior to the eve of trial and that its failure to do so prevented him from adequately preparing for trial and cross-examination. The record reflects, however, that an investigator for the defense interviewed Gillespie in March of 1996. Further, although Gillespie remained in the Billings area until September of 1996 and was available for further questioning during that period, Martinez’s counsel did not attempt to interview Gillespie again until after the November 18,1996 trial date was vacated due to the prosecution’s inability to locate Gillespie. In light of the fact that Martinez’s counsel could have interviewed Gillespie at any time between March and September of 1996, but did not do so, we conclude that the prosecution’s failure to make Gillespie available for an interview until the day before trial, after locating him in Wyoming sometime after November 18, did not prevent Martinez from adequately preparing for trial.

¶26 Martinez also argues that the District Court should have granted a continuance to further investigate Gillespie’s last-minute revelation that he had been addicted to methamphetamine at the time of the events in question and to consult with an expert regarding the effect of long-term drug use on the ability of a witness to recollect events. We disagree.

¶27 When the investigator for the defense interviewed Gillespie in March of 1996, Gillespie admitted to smoking marijuana on a recreational basis. The investigator apparently did not inquire as to whether Gillespie used other types of drugs and Gillespie did not offer the information. Martinez’s counsel requested — and received — records of Gillespie’s criminal history, however, including those pertaining to drug-related incidents. Furthermore, the record indicates that on June 24,1996, Martinez’s counsel filed notice of intent to present expert testimony at trial regarding the effects of drug use — specifically, hallucinogenic drugs — on a person’s “ability to perceive accurately events and circumstances around him and, further, the effects of long-term use of hallucinogenic substances on a witness’s mental state ....” Thus, it is clear that Martinez intended long before trial to make Gillespie’s drug use an issue at trial.

¶28 Additionally, although the District Court denied Martinez’s motion to continue, it granted his request to call a previously undisclosed expert witness to testify regarding the effects of methamphetamine use on the ability of a witness to perceive and recall events. Although Martinez eventually did not call this witness for fear that cross-examination of the expert would be detrimental to his defense, he was not prevented from presenting such evidence by Gillespie’s last-minute revelation of methamphetamine addiction.

¶29 Finally, Martinez relies on State v. Timblin (1992), 254 Mont. 48, 834 P.2d 927 and State v. Borchert (1997), 281 Mont. 320, 934 P.2d 170, for the proposition that the interests of justice required the District Court to grant his motion for continuance based on Gillespie’s contradictory statements discovered on the eve of trial. In Timblin, the victim’s testimony at trial differed in a number of respects from a previous statement she had given. The prosecution and the investigating officer were aware that the victim’s version of the events had changed prior to trial, but did not inform the defense. Timblin, 254 Mont. at 49-50, 834 P.2d at 928. Upon hearing the victim’s trial testimony, the defense attempted to subpoena two witnesses who could testify to the events at issue and impeach the victim’s credibility, but was unable to serve the subpoenas because the witnesses could not be located. Timblin, 254 Mont. at 50, 834 P.2d at 928. The defense then moved for a continuance until such time as the witnesses could be subpoenaed, but the district court denied the motion. Timblin, 254 Mont. at 50, 834 P.2d at 928. We concluded that the defense had shown due diligence in attempting to subpoena the witnesses as soon as it heard the victim’s unexpected testimony and that the testimony of the witnesses was highly important to the defendant’s ability to present a defense. On that basis, we held that the district court abused its discretion in denying the motion to continue. Timblin, 254 Mont. at 51, 834 P.2d at 929.

¶30 In the present case, there is no indication that the prosecution was aware of Gillespie’s methamphetamine addiction at any earlier point in the proceedings or that it knew, and failed to inform Martinez, that Gillespie’s version ofthe events had changed in anyway. Nor was Martinez unable to present evidence at trial impeaching Gillespie’s credibility. To the contrary, Martinez’s counsel cross-examined Gillespie at length on his inconsistent statements regarding what occurred on December 30, 1995, and even elicited admissions that Gillespie had lied to law enforcement officers about the events of that evening. Furthermore, Martinez had the opportunity to subpoena and present witnesses — namely, his expert witness on drug use — in support of his contention that Gillespie lacked credibility; Martinez simply chose not to present such testimony. Thus, Timblin is distinguishable and of no assistance to Martinez here.

¶31 In Borchert, the second case on which Martinez relies, the defendant discovered on the eve of trial that his co-defendant had entered into a plea agreement with the prosecution in which the co-defendant agreed to lead law enforcement to relevant evidence and to testify against the defendant. The prosecution did not inform the defendant of the plea agreement and defense counsel learned of it only by accident. Borchert, 281 Mont. at 323-24, 934 P.2d at 172-73. The defendant moved for a continuance in order to construct a new trial strategy and the district court denied the motion. Borchert, 281 Mont. at 324, 934 P.2d at 173. On appeal, we held that the district court had abused its discretion in denying the motion for continuance. Borchert, 281 Mont. at 327, 934 P.2d at 175. The defendant’s entire strategy leading into trial had been that both he and his co-defendant would deny involvement in the offense charged. His co-defendant’s last minute plea agreement effectively eviscerated the defendant’s trial strategy and the interests of justice required granting him a continuance to develop a new strategy. Borchert, 281 Mont. at 325, 934 P.2d at 173-74.

¶32 The circumstances of the present case bear no similarity to those in Borchert. Here, Gillespie’s differing versions ofthe events did not completely eviscerate Martinez’s trial strategy of discrediting Gillespie. Rather, Martinez’s counsel remained able to attack — and, in fact, effectively attacked — Gillespie’s credibility by impeaching him with his inconsistent statements and cross-examining him regarding his drug use. Borchert does not support Martinez’s argument that the interests of justice required the District Court to grant his motion to continue the trial in this case.

¶33 We hold that the District Court did not abuse its discretion when it denied Martinez’s motion for a continuance on the day of trial.

¶34 Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES LEAPHART, HUNT and TRIEWEILER concur.


source: Caselaw Access Project

author: JUSTICE HUNT JUSTICE NELSON

license: Public Domain

text:
    IN RE THE MARRIAGE OF CLIFFORD DAVID SHORTEN, Petitioner and Respondent, and MICHELE MARIE SHORTEN, Respondent and Appellant.
    No. 98-061.
    Submitted on Briefs June 11, 1998.
    Decided November 6, 1998.
    1998 MT 267.
    55 St.Rep. 1108.
    291 Mont. 317.
    967 P.2d 797.

      For Appellant: Stephen C. Mackey, Towe, Ball, Enright, Mackey & Sommerfeld, Billings
    For Respondent: J. Mayo Ashley, Helena
   JUSTICE HUNT

delivered the Opinion of the Court.

¶1 Michele Marie Shorten appeals from a judgment of the Thirteenth Judicial District Court, Yellowstone County, that the doctrine of equitable estoppel bars her from collecting delinquent child support from Clifford David Shorten. We affirm.

¶2 We restate the issues as follows:

¶3 1. Whether the District Court erred in ruling that equitable estoppel should be applied.

¶4 2. Whether the court erred by failing to permit the mother to examine and cross- examine witnesses relating to the issue of visitation and efforts made by the father to contact the minor child.

¶5 The marriage of Clifford David Shorten (the father) and Michele Marie Shorten (the mother) was dissolved in 1985. The parties are the parents of a daughter born in 1984. In the decree of dissolution, they were awarded joint custody of their daughter, with the mother as the primary residential custodian. The father was granted reasonable visitation and was ordered to pay $100 per month in child support and to maintain the child on his accident and health insurance policy.

¶6 When the marriage was dissolved, the mother and the child lived in Billings, Montana, and the father lived in Jefferson City, Montana. In early 1987, the mother remarried and informed the father that she, her new husband, and the child were moving to Arizona. The mother asked the father to consent to her new husband’s adoption of the child, but the father refused. He instead filed a motion to modify the terms of the custody arrangement to make him the primary physical custodian of his daughter. However, the mother relocated to Arizona before that motion was served on her, and the court never considered the motion.

¶7 The mother did not provide the father with her address or telephone number in Arizona. When the father contacted the mother’s family and asked for her address in Arizona, he was denied that information. The mother and child resided in Arizona for approximately four years, then returned to Billings for three to four months. After that, they moved to Las Vegas, Nevada, for three years. They then moved to Virginia for three months and then to North Carolina for a year. At no time during this period did the mother inform the father of her address or make any demand for child support.

¶8 In May 1995, the mother’s third marriage ended and she again moved back to Billings, Montana. In October of 1996, she contacted the father, who then visited his daughter and began paying child support. The father has maintained health insurance on the child since the parties’ marriage was dissolved.

¶9 In April 1997, the mother filed with the Clerk of the Thirteenth Judicial District Court an affidavit in support of writ of execution in which she asserted that the father owed her a total of $18,239.41 for unpaid child support and interest thereon. She executed upon the father’s bank account, obtaining $959. The parties subsequently stipulated to a modification of current and future child support.

¶10 The only issue at trial was whether the mother should be prevented, under the doctrine of equitable estoppel, from collecting back child support prior to April 1997. After a hearing, the District Court entered a written judgment finding that the elements of equitable estoppel were present and concluding that the mother’s conduct barred her from collecting any claimed arrearage in child support. The mother appeals.

ISSUE 1

¶11 Did the District Court err in ruling that equitable estoppel should be applied?

¶12 This issue combines two of the mother’s arguments, that the court did not consider the proper elements of equitable estoppel, and that the court’s findings are not supported by clear and convincing evidence. We first review the elements of equitable estoppel.

¶13 The mother contends that the elements of equitable estoppel in a child support arrearages context are: (1) substantial and continuing change in circumstances rendering enforcement of the original decree of child support inequitable; (2) mutual agreement made between the parties in good faith; and (3) conduct over a period of years consistent with the agreement, citing In re Marriage of Hooper (1991), 247 Mont. 322, 324, 806 P.2d 541, 543. The mother argues that because the court acknowledged that there was no agreement between the parties in this case, “it is impossible for the [c]ourt to have concluded by clear and convincing evidence that there was such an agreement, as required by Hooper and other cases from this Court.”

¶14 In Hooper, the mother sought to recover $23,250 in child support arrearages. The support obligor father testified that he did not know the mother’s feelings during the years in which he did not pay child support, but his impression was that if he stayed away she would not require him to pay it. We agreed with the district court that the father’s impression was not a mutual agreement and that the mother’s contradictory testimony that the father could have requested visitation at any time rendered the equitable estoppel exception to retroactive modification of child support inapplicable. Hooper, 247 Mont. at 325, 806 P.2d at 543.

¶15 The abbreviated statement of the elements of equitable estoppel in back-due child support cases as set forth in Hooper and upon which the mother relies was first articulated in In re Marriage of Jensen (1986), 223 Mont. 434, 439-40, 727 P.2d 512, 515-16. In Jensen, the mother and father reached an oral agreement to reduce the father’s child support obligation and followed that oral agreement for several years. This Court held that this was an enforceable oral agreement. Jensen, 223 Mont. at 440, 727 P.2d at 515.

¶16 One of the cases relied upon in Jensen was In re Marriage of Cook (1986), 223 Mont. 293, 725 P.2d 562. In Cook, the Court took a broad view of the “agreement” aspect of estoppel concerning past due child support, stating, “[t]he courts are generally reluctant to state any general rule as to when an estoppel arises, but generally the equitable principle arises when the mother has expressly or impliedly consented to an arrangement other than the payment of the judgment.” Cook, 223 Mont. at 299, 725 P.2d at 566 (emphasis added) (citing State of Washington ex rel. Blakeslee v. Horton (1986), 222 Mont. 351, 722 P.2d 1148 and Headley v. Headley (Ala. 1964), 172 So.2d 29, 33). This articulation was narrowed, without explanation, in Jensen. It was this narrower version which was later set forth in the list of elements of equitable estoppel in child support arrearages cases in Hooper.

¶17 We hold that the “agreement” element of equitable estoppel as set forth in Hooper and Jensen does not preclude the application of equitable estoppel to attempts to recover back child support payments where there is no written or oral agreement but the obligee parent has impliedly consented to an arrangement other than the payment of the judgment and the elements of equitable estoppel are otherwise present. To that extent, the elements of equitable estoppel in an action for back-due child support as set forth in Hooper and Jensen are not universally applicable.

¶18 In this case, instead of applying the elements of equitable estoppel as set forth in Hooper and Jensen, the District Court used the general statement of the elements of equitable estoppel set forth in In re Marriage of KEV (1994), 267 Mont. 323, 331-32, 883 P.2d 1246, 1252: (1) conduct, acts, language, or silence amounting to a representation or concealment of material facts; (2) these facts must be known to the party estopped at the time of his conduct, or at least the circumstances must be such that knowledge of them is necessarily imputed to him; (3) the truth concerning these facts must be unknown to the party claiming the benefit of estoppel at the time it was acted upon; (4) the conduct must be done with the intent, or at least with the expectation, that it will be acted upon by the other party or under circumstances that it is both natural and probable that it will beso acted upon; (5) the conduct must be relied upon by the other party and, thus relying, he must be led to act upon it; and (6) he must in fact act upon it so as to change his position for the worse. The District Court reasoned that equitable estoppel does not require both an agreement and conduct, and that in this case the conduct of the mother “speaks louder than any oral or written agreement.”

¶19 Findings of fact justifying the application of equitable estoppel must be supported by clear and convincing evidence. Hooper, 247 Mont. at 324, 806 P.2d at 543. The mother argues that the court’s findings were not supported by that quantum of evidence. Her argument, however, depends solely on her contention that an agreement between the parties is required for equitable estoppel to apply. We have rejected that contention. We therefore proceed to examine the record to determine whether it supports the District Court’s decision that the father established the six elements of equitable estoppel as set forth in Marriage of KEV.

¶20 The evidence showed that after the mother left the state of Montana with her daughter in 1987, she refused any communication with the father for over eight years; although she knew where he lived and where he worked, she did not tell him and would not allow her family to tell him where she and his daughter lived (silence amounting to a concealment of material fact, known to the mother at the time of her conduct, and unknown to the father). The mother did not seek any child support or medical insurance assistance during this time. Her position, as she stated in court, was that the husbands to whom she was then married provided very well for her and the child and that she did not see any need for support from the father (conduct done with the intent that it would be acted upon by the father). The father, not knowing where to send child support, did not send any child support (mother’s conduct was relied upon by the father so that he was led to act upon it, changing his position for the worse).

¶21 After reviewing the record, we are satisfied that the court’s findings of fact justifying the application of equitable estoppel are supported by clear and convincing evidence. We therefore hold that the District Court did not err in ruling that the mother is barred from collecting back child support for the time during which she secreted herself and the child from the child’s father.

ISSUE 2

¶22 Did the court err by failing to permit the mother to examine and cross-examine witnesses relating to the issue of visitation and efforts made to contact the minor child?

¶23 This Court’s standard of review of a trial court’s evidentiary ruling is whether the trial court abused its discretion; absent an abuse of discretion, this Court will not overturn the trial court’s ruling. State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263.

¶24 The mother complains that she was not allowed to cross-examine the father as to his testimony concerning his efforts to pay support or to see his daughter. In cutting off cross-examination of the father on this point, the District Court reasoned as follows:

It’s simple. The child and the child’s mother left the state of Montana, he remained in Montana, did she have contact with him, give him the child’s address, her address, her telephone number? He’s testified that she hasn’t. I believe her testimony is substantially the same. But let’s hear on that point. That seems to be the significant issue here, not whether or not he could have gotten more than one telephone book from Phoenix, Arizona.

The mother also complains that the court cut off her attorney’s examination of her concerning whether the father attempted to visit his daughter after the dissolution. In so doing the court stated:

All right. Let’s don’t discuss it [visitation]. Let’s discuss the issues that are before this Court, that is, whether or not something occurred between these parties that would preclude in equity your client collecting the unpaid child support. And I don’t think visitation has anything to do with that, so let’s proceed on.

The mother argues that in a case in which the court ruled in equity, it was unfair to disallow evidence that the father did not make adequate efforts to visit or contact his daughter.

¶25 We agree with the District Court. Whether the father made efforts to see the daughter was irrelevant to the elements of equitable estoppel, specifically as to whether the mother’s conduct established an arrangement that the father would not pay child support. We conclude that the District Court did not abuse its discretion in failing to permit the mother to examine and cross-examine witnesses relating to the father’s efforts to visit and contact the minor child.

¶26 Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES REGNIER, TRIEWEILER and GRAY concur.

JUSTICE NELSON

dissents.

¶27 I dissent from the Court’s opinion as to Issue 1, and I would reverse. Accordingly, I would not address Issue 2.

¶28 At the outset, I note that § 40-4-208(1), MCA, allows only for the prospective modification of child support payments. In re Marriage of Hooper (1991), 247 Mont. 322, 324, 806 P.2d 541, 543. We have also held that each child support payment “becomes a judgment debt similar to any other judgment for money.” Willoughby v. Loomis (1994), 264 Mont. 44, 49, 869 P.2d 271, 274 (quoting In re Marriage of Sabo (1986), 224 Mont. 252, 254, 730 P.2d 1112, 1113).

¶29 Notwithstanding our case law which holds that this statutory provision should be strictly construed, In re Marriage of Petranek (1992), 255 Mont. 458, 460, 843 P.2d 784, 786, the trial court, and now this Court, have effectively modified Clifford’s past-due child support obligation to zero and have, thereby, retroactively deprived Michele of her judgment. We justify this result on the basis of equitable estoppel. I disagree.

¶30 Ordinarily, and even though the child’s custodian fails promptly to seek compliance with a support order, equitable doctrines of laches and estoppel will not be applied to relieve a parent-obligor of past-due child support obligations. The theory behind this rule is that such payments are for the child’s benefit and that inaction by the custodian should not inure to the benefit of the person choosing not to make such payments and, thus, allow him or her to profit thereby. See Fitzgerald v. Fitzgerald (1980), 190 Mont. 66, 618 P.2d 867.

¶31 Nonetheless, this Court has carved out a narrow equitable exception to the statutory rule in cases where the parties have orally agreed to modify an existing child support order, and have relied on that oral modification. In re Marriage of Widhalm (1996), 279 Mont. 97, 101, 926 P.2d 748, 751 (citing In re Marriage of Jensen (1986), 223 Mont. 434, 727 P.2d 512). However, this exception applies only when there are extraordinary or exceptional circumstances that include: (1) a substantial and continuing change in circumstances rendering enforcement of the original decree of child support inequitable; (2) mutual agreement between the parties made in good faith; and (3) conduct over a period of years consistent with the agreement. These elements must be established by clear and convincing evidence and apply only to payments due subsequent to the mutual agreement. Hooper, 247 Mont. at 324, 806 P.2d at 543 (citing Jensen, 223 Mont. at 438-40, 727 P.2d at 515-16). See also In re Marriage of Guckeen (1989), 240 Mont. 136, 782 P.2d 1284; State ex rel. Blakeslee v. Horton (1986), 222 Mont. 351, 722 P.2d 1148.

¶32 In the case sub judice, it is undisputed that these elements were not fulfilled. There is no evidence of any agreement between the parties — either express or implied — relieving Clifford of his child support obligations. In fact, both parties testified that there was no agreement between them.

¶33 Rather than simply applying § 40-4-208(1), MCA, and our clearly articulated case law to the facts of this case, the majority summarily does away with the “agreement” element of our judicially created narrow exception. We justify this decision on the basis of In re Marriage of KEV (1994), 267 Mont. 323, 883 P.2d 1246, a case that had absolutely nothing to do with allowing retroactive modifications of child support orders on the basis of equitable theories. {KEV utilized classic six element equitable estoppel analysis to create parentage by estoppel. KEV, 267 Mont. at 331-34, 883 P.2d at 1252-53).

¶34 While this approach certainly achieves the result which the Court apparently finds more palatable under the facts of this case, I believe that, in ignoring the law, we have done grave damage to the finality and the sanctity of child support judgments in general; we have summarily and unconstitutionally deprived Michele of an important, vested property right to collect an accrued judgment; and we have established a precedent that will make it immeasurably easier for deadbeat parents to avoid their child support obligations. I cannot agree with this approach.

¶35 I would reverse the trial court’s decision and reinstate Michele’s judgment. I dissent from our failure to do so.

JUSTICE LEAPHART concurs in the foregoing dissent.


author: Justice REGNIER JUSTICE LEAPHART, JUSTICE TRIEWEILER

text:
    PATRICIA M. CARR, Plaintiff and Respondent, v. IAN M. BETT, Defendant and Appellant.
    Nos. 97-310 and 311.
    Heard March 19, 1998.
    Submitted April 14, 1998.
    Decided November 5, 1998.
    1998 MT 266.
    55 St.Rep. 1098.
    291 Mont. 326.
    970 P.2d 1017.

      For Appellant: James D. McKenna (argued); Walsh & McKenna, P.C., Bozeman
    For Respondent: William Francis Koeppen, Gallatin Gateway
    For Amicus Curiae: Hon. Joseph P. Mazurek, Attorney General; Chris Tweeten (argued), Assistant Attorney General; Helena
   Justice REGNIER

delivered the opinion of the Court.

¶1 On March 17,1995, Ian M. Bett filed a petition for dissolution of marriage in the Eighteenth Judicial District Court, Gallatin County. On June 28, 1996, Ian’s wife, Patricia M. Carr, filed a divorce complaint in a Wyoming district court. On October 30,1996, the Wyoming court issued a decree of divorce and judgment to Patricia by default. On January 21,1997, Patricia filed the Wyoming judgment with the Gallatin County District Court. She then moved for summary judgment in Ian’s Montana dissolution proceeding. Subsequently, Ian moved to set aside the Wyoming judgment filed by Patricia in the Gallatin County District Court. On April 11,1997, the District Court issued two orders, one granting Patricia’s motion for summary judgment in the dissolution proceeding, and another denying Ian’s motion to set aside the Wyoming judgment. Ian now appeals from both the order granting Patricia summary judgment in the dissolution proceeding and the order denying his motion to set aside the Wyoming judgment in the case where the Wyoming judgment was transcribed. We affirm.

¶2 We address the following issues on appeal:

¶3 1. Did Ian Bett file his notices of appeal in a timely manner?

¶4 2. Did Ian Bett file the proper motion under the Montana Rules of Civil Procedure to set aside the foreign judgment filed in the District Court?

¶5 3. Did the District Court err when it denied Ian Bett’s motion to set aside the Wyoming judgment filed in the Eighteenth Judicial District Court, Gallatin County?

FACTUAL AND PROCEDURAL BACKGROUND

¶6 Patricia M. Carr and Ian M. Bett were married in Driggs, Idaho, on November 18,1991. They lived a rather bohemian lifestyle, traveling throughout the West in a camper while Ian worked as a sales representative for a company. They also lived apart at times. Sometime in 1993, they separated but maintained contact. In August, 1993, Patricia moved to Jackson, Wyoming and Ian moved to Bozeman, Montana.

¶7 On March 17,1995, Ian filed a petition for dissolution of marriage in the Eighteenth Judicial District Court, Gallatin County (Cause No. 95-120, Gallatin). More then a year later, on July 9,1996, Patricia was served in Jackson, Wyoming, with a summons and petition of Ian’s cause of action filed in Montana. She filed an answer to this petition on August 2,1996.

¶8 On June 28, 1996, before being served with process of Ian’s Montana action, Patricia filed a complaint seeking a decree of divorce in the District Court of Teton County, Ninth Judicial District, in Jackson, Wyoming. Ian was served in Bozeman, Montana, with a copy of the summons and complaint of the Wyoming action on August 21, 1996. Ian did not respond to the summons and complaint, and on October 30,1996, a decree of divorce and judgment against Ian and in favor of Patricia was entered in the Wyoming action. The Wyoming divorce decree dissolved Ian and Patricia’s marriage in Wyoming and awarded Patricia $95,000 as her share of the marital assets.

¶9 On January 21,1997, Patricia filed an authenticated copy of the Wyoming decree and judgment with the Gallatin County Clerk of Court pursuant to the Uniform Enforcement of Foreign Judgments Act, §§ 25-9-501 through -508, MCA, (Cause No. 97-22, Gallatin). On January 22, 1997, Patricia filed a motion for summary judgment seeking to dismiss Ian’s petition for dissolution of marriage. On February 10,1997, Ian filed a motion to set aside the Wyoming judgment. This motion, however, was not filed in the case where the Wyoming judgment was transcribed (Cause No. 97-22, Gallatin), but in the case where he filed his petition for dissolution (Cause No. 95-120, Gallatin).

¶10 The District Court heard oral argument on Patricia’s motion for summary judgment on February 27,1997. During the oral argument, Patricia questioned whether Ian properly filed his motion to set aside the Wyoming decree and judgment in the same cause of action as his petition for dissolution of marriage. Thereafter, on February 28,1997, Ian filed a motion to set aside the Wyoming decree and judgment in the cause of action wherein it had been transcribed in Montana by Patricia (Cause No. 97-22, Gallatin).

¶11 On April 11,1997, the District Court ruled in favor of Patricia’s motion for summary judgment in Ian’s Montana action, resulting in its dismissal. On the same day, the court entered an order denying Ian’s motion to have the Wyoming judgment set aside. In both cases, notice of entry of judgment was filed on April 15, 1997. On April 29, 1997, Ian filed motions to alter or amend judgment pursuant to Rule 59(g), M.R.Civ.P., in each case. Both motions were denied by the District Court on May 19, 1997.

¶12 On May 30,1997, Ian filed notices of appeal. In Case No. 97-311 (Cause No. 95-120, Gallatin), Ian appeals the order of the District Court granting Patricia’s motion for summary judgment and dismissing Ian’s petition for dissolution of marriage. In Case No. 97-310 (Cause No. 97-22, Gallatin), Ian appeals the order of the District Court denying his motion to set aside the Wyoming decree and judgment. ¶13 On June 11,1997, Patricia filed motions with this Court to dismiss both appeals, Case Nos. 97-310 and 97-311. On June 25, 1997, Ian filed a motion to consolidate Case Nos. 97-310 and 97-311. On July 2, 1997, we issued two separate orders. First, we granted Ian’s motion to consolidate, and Case No. 97-310 was consolidated with Case No. 97-311 for purposes of this appeal. In the second July 2, 1997, order, we reserved ruling on Patricia’s motions to dismiss and took her motions under advisement. We ordered both parties to include arguments and authority on their respective positions regarding Patricia’s motions to dismiss the appeals in their briefs.

¶14 On November 6,1997, after initial briefing of the appeal by the parties, this Court raised the issue of whether § 25-9-503, MCA, was constitutional in light of the Full Faith and Credit Clause, Article IV, Section 1, of the United States Constitution. We ordered supplemental briefing by both parties on this issue and stated that an oral argument would be scheduled at a later date. Also, because a decision in this case may implicate the constitutionality of § 25-9-503, MCA, we named the Montana Attorney General a party to this proceeding and invited the State to file a brief and present a separate oral argument. ¶15 On December 4,1997, Ian moved this Court for a suspension of proceedings. In the Wyoming District Court, Ian had filed a motion to set aside the Wyoming judgment. On December 9,1997, we granted the motion on the grounds that further proceedings regarding this case were being held in Wyoming.

¶16 On December 30, 1997, the District Court of Teton County, Ninth Judicial District, in Jackson, Wyoming, denied Ian’s request to set aside the default judgment obtained by Patricia on October 30, 1996. Ian did not appeal this decision of the Wyoming court and the default judgment is now final.

ISSUE 1

¶17 Did Ian Bett file his notices of appeal in a timely manner?

¶18 At the time Ian filed his motions to alter or amend and his subsequent notices of appeal, Rule 5(a), M.R.App.R, provided in pertinent part:

(1) In civil cases the notice of appeal required by Rule 4 shall be filed with the clerk of the district court within 30 days from the date of the entry of the judgment or order appealed from, except that in cases where service of notice of entry of judgment is required by Rule 77(d) of the Montana Rules of Civil Procedure the time shall be 30 days from the service of notice of entry of judgment
(4) If a timely motion under the Montana Rules of Civil Procedure is filed in the district court by any party: (i) for judgment under Rule 50(b); (ii) under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (iii) under Rule 59 to alter or amend the judgment; or (iv) under Rule 59 for a new trial, the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion....

¶19 In her motions to dismiss Ian’s appeals, Patricia makes two different arguments. First, Patricia contends that both of Ian’s motions to alter and amend judgment were, in substance, motions for reconsideration. If, as Patricia claims, Ian’s motions are, in fact, motions for reconsideration, the motions would not toll the time for filing of an appeal under Rule 5(a)(4), M.R.App.P. Therefore, Patricia argues that Ian’s notices of appeals were not timely filed since they were filed more than thirty days after the notice of entry of judgment.

¶20 Patricia relies on Miller v. Herbert (1995), 272 Mont. 132, 900 P.2d 273, to argue that Ian’s motions to alter or amend judgment should be considered motions for reconsideration that do not extend the time allowed for filing an appeal. First, she contends that Ian offers no new facts, and no new evidence or new law in support of his motions. The arguments that Ian presents, Patricia claims, are the same arguments previously submitted to the District Court. Second, Patricia argues that Ian’s motions are not Rule 59(g) motions because they ask the District Court to completely reverse its earlier orders rather than request the court to alter or amend its decision.

¶21 Ian counters that both his motions were legitimate Rule 59(g) motions to alter or amend judgment. Ian states that in both his motions and briefs, he pointed out to the District Court that it had completely ignored one of his main arguments. Ian claims that rather than asking the court to reconsider its decision, he was requesting that the court consider the merits of his argument regarding the propriety of the default judgment issued by the Wyoming court. Ian argues that his Rule 59(g) motions are not motions for reconsideration as defined in Miller. Finally, Ian states that in the context of altering or amending the District Court’s decision, the only possible option available to the court was a complete reversal.

¶22 In Miller, this Court was faced with whether a motion that was entitled “motion for reconsideration” was, in fact, a Rule 59(g) motion to alter or amend judgment that tolled the time for the filing of a notice of appeal. We stated that “[w]e shall look to the substance of a motion, not just its title, to identify what motion has been presented.” Miller, 272 Mont. at 136, 900 P.2d at 275. We held that a motion for reconsideration may be equated to a motion to alter or amend a judgment in limited circumstances where the motion “contain[s] statements or allegations demonstrating that such motion is the equivalent to a motion to amend or a motion to alter a judgment.” Miller, 272 Mont, at 136, 900 P.2d at 275. This Court further elaborated on when a motion for reconsideration would be construed substantively as a motion to alter or amend pursuant to Rule 59(g) in Nelson v. Driscoll (1997), 285 Mont. 355, 948 P.2d 256.

¶23 Patricia’s reliance on Miller to argue that this Court should look at the substance of Ian’s motions to determine whether they properly are Rule 59(g) motions is misplaced. Neither Miller nor Nelson held that when a Rule 59(g) motion is titled “motion to alter or amend judgment,” a court may look beyond the title of the motion to determine whether it is in substance a motion to alter or amend. In both Miller and Nelson, the pleadings had been incorrectly labeled motions for reconsideration and we held that they would be construed as motions to alter or amend judgment in order to save this Court’s jurisdiction over the appeals. We have never denied jurisdiction in any case based on a post-trial motion that had been properly labeled but did not include substantive language in support of its label.

¶24 [2] We reject Patricia’s argument that this Court should look beyond the title of a Rule 59(g) motion and analyze the substance of the motion in order to determine whether the motion is, in fact, a proper Rule 59(g) motion. To do so would mean that a party who has filed a Rule 59(g) motion with a district court would never be confident that it fell within the framework of Rule 59. There would always be a looming possibility that the subsequent appeal could be dismissed by this Court when asked to examine the substance of the motion under our judicial microscope. We, therefore, hold that when a party has identified and titled a motion as one to alter or amend pursuant to Rule 59(g), this Court is not going to analyze the substance of the motion to see if it comes under the definition of a motion to alter or amend.

¶25 As stated above, on April 11, 1997, the District Court entered one order granting Patricia’s motion for summary judgment and another order denying Ian’s motion to set aside the foreign judgment. In both cases, a notice of entry of judgment was filed on April 15,1997. On April 29,1997, Ian filed a Rule 59(g) motion in each case. Both were labeled “motion to alter or amend judgment.” On May 19 1997, the District Court denied both motions to alter or amend judgment. On May 30,1997, Ian filed his notices of appeal.

¶26 Under Rule 59(g), Ian was required to file his motions to alter or amend judgment within ten days after service of the notice of the entry of the judgment. We determine that Ian’s motions to alter or amend judgment were timely filed. Under Rule 5(a)(4), M.R.App.P., Ian had thirty days after the denial of his motions to alter or amend judgment to file his notices of appeal. In this case, the court denied both motions on May 19,1997, and Ian filed his notices of appeal on May 30, 1997. Thus, we conclude that Ian’s notices of appeal were timely filed in both cases.

¶27 Furthermore, we conclude that Ian’s Rule 59(g) motions were appropriate in seeking a complete reversal of the District Court’s decisions. In this case, Ian asked the court to alter or amend the judgment by setting aside the Wyoming judgment. If the District Court granted Ian’s request, the judgment would have been set aside and summary judgment would not have been granted in the dissolution proceeding. There were no other options available to the District Court to partially alter or amend the judgment pursuant to Rule 59(g) and the relief requested. Therefore, we determine that Ian’s Rule 59(g) motions were appropriate in seeking a reversal of the court’s earlier decisions.

ISSUE 2

¶28 Did Ian Bett file the proper motion under the Montana Rules of Civil Procedure to set aside the foreign judgment filed in the District Court?

¶29 Whereas above we addressed Patricia’s argument about the substance of Ian’s Rule 59(g) motions, we now discuss Patricia’s argument regarding the timing of Ian’s Rule 59(g) motion filed in Cause 97-22 (Case 97-310), the Wyoming judgment transcribed in Montana. Patricia again argues that Ian’s motion to alter or amend judgment was not timely and, therefore, the time for filing a notice of appeal was not extended. Patricia states that in order for Ian’s Rule 59(g) motion to be considered timely filed, it must have been filed within ten days of any judgment, or notice of entry of judgment. However, it is unclear whether Patricia is arguing that the ten day period for filing a Rule 59(g) motion begins to run on October 30, 1996, the day judgment was entered by the Wyoming District Court, or on January 21, 1997, when the Wyoming judgment was transcribed in the Montana District Court.

¶30 In either case, Patricia asserts that Ian’s Rule 59(g) motion is untimely because it is not related to the District Court’s April 11, 1997, order denying his Rule 60(b) motion to set aside the Wyoming judgment. Rather, Patricia states that Ian’s Rule 59(g) motion refers directly to the Wyoming judgment itself. Thus, Patricia argues that Ian’s Rule 59(g) motion was untimely because it was not filed within ten days after the judgment was entered by the Wyoming District Court or when the Wyoming judgment was transcribed in the Montana District Court.

¶31 We determine that Patricia’s argument does not clearly represent Ian’s Rule 59(g) motion in Cause 97-22/Case 97-310 or the proceedings below in the District Court. Ian’s motion to alter or amend judgment filed on April 29,1997, clearly states that he seeks to alter or amend the order and memorandum issued by the District Court on April 11,1997. He goes on to state that his reasons for his motion are the court failed to consider all the issues presented by the parties, and the court’s memorandum and order are erroneous as a matter of law. Ian’s motion was supported by a brief filed on May 6,1997. Although, in essence, Ian is seeking to alter or amend the Wyoming judgment, we conclude that Ian’s Rule 59(g) motion is related to the District Court’s April 11,1997, order and thus was timely made. Furthermore, Patricia’s argument ignores the fact that a Rule 60(b) motion is the appropriate motion to file to seek review of a foreign judgment filed in a Montana district court.

¶32 Moreover, we conclude that a Rule 59(g) motion would not be the appropriate motion to make in challenging a foreign judgment filed in Montana. In Montana, Rule 59(g) motions are commonly made after the entry of a judgment by a Montana district court by either one or both of the parties that appeared before the court. On the other hand, Rule 60(b) sets forth numerous circumstances in which a district court may relieve a party from a final judgment, order, or proceeding. We agree with Ian and the practice in other states that a Rule 60(b) motion is the appropriate motion to file in order to seek review of or relief from a foreign judgment. See, e.g., Marworth, Inc. v. McGuire (Colo. 1991), 810 P.2d 653; Data Management Systems, Inc. v. EDP Corp. (Utah 1985), 709 P.2d 377.

¶33 Therefore, we hold that Ian’s Rule 60(b) motion and his Rule 59(g) motion, as they relate to the proceeding involving the Wyoming judgment filed in Montana, were both appropriate and timely filed. Under Rule 60(b)(1), M.R.Civ.P., a party that asserts excusable neglect as a reason for relief from a final judgment has sixty days after the judgment was entered to file a Rule 60(b) motion. As discussed above, Ian filed a Rule 60(b) motion to set aside the foreign judgment filed in Montana within sixty days after Patricia recorded the Wyoming judgment. After briefing by both parties and a hearing, the District Court ruled against him on April 11, 1997. Notice of entry of judgment was filed on April 15,1997. Ian then filed a motion to alter or amend that judgment within the ten-day period prescribed by Rule 59(g). We conclude that this motion was related to the District Court’s April 15, 1997, order. After the District Court denied the motion on May 19, 1997, Ian filed bis notice of appeal on May 30, 1997, well within the thirty-day time period prescribed by Rule 5, M.R.App.P. Thus, we conclude that Ian’s Rule 59(g) motion was timely filed.

ISSUE 3

¶34 Did the District Court err when it denied Ian’s motion to set aside the Wyoming judgment filed in the Eighteenth Judicial District Court?

¶35 At first, we note that the District Court entered summary judgment against Ian as a matter of law. The District Court’s decision was based on its conclusion that the Wyoming court had personal jurisdiction over Ian and on the court’s related April 11,1997, order denying Ian’s motion to set aside the Wyoming judgment in Montana. On appeal, Ian challenges the District Court’s failure to set aside the Wyoming judgment filed in Montana. Our standard of review relating to conclusions of law is whether the trial judge’s interpretation of the law is correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686; Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.

¶36 Ian contends that Montana’s version of the Uniform Enforcement of Foreign Judgments Act (UEFJA), §§ 25-9-501 through -508, MCA, and Rule 60(b), M.R.Civ.R, permit a district court to set aside the default judgment obtained against him in Wyoming because of his inadvertence, mistake, or neglect there. Specifically, Ian argues that under § 25-9-503, MCA, anytime a foreign judgment is filed in a Montana district court, it is to be treated, in all respects, as a judgment of this state. Accordingly, he contends that once a foreign judgment is filed in Montana, it is subject to the same defenses or procedures, such as relief from a judgment under Rule 60(b), as any other Montana judgment. Therefore, because the Wyoming judgment against him was obtained by default and Montana law generally holds default in disfavor, Ian argues that the judgment should be set aside as invalid under Montana law.

¶37 Patricia counters that a Montana district court may not set aside a valid judgment of a sister state. Patricia contends that the Full Faith and Credit Clause of the United States Constitution does not permit a district court to set aside a valid foreign judgment under § 25-9-503, MCA, and Rule 60(b), M.R.Civ.P. Therefore, Patricia argues that the District Court did not err when it denied Ian’s motion to set aside the Wyoming judgment.

¶38 The United States Constitution’s Full Faith and Credit Clause provides, “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof.” U.S. Const, art. IV, § 1.

¶39 The U.S. Supreme Court has held that the full faith and credit obligation owed to final judgments is exacting. A final judgment rendered by a state court is entitled to full faith and credit in the courts of its sister states. Underwriters National Assur. Co. v. North Carolina Life and Accident and Health Insurance Guaranty Ass’n (1982), 455 U.S. 691, 102 S. Ct. 1357, 71 L. Ed. 2d 558. The U.S. Supreme Court has stated that full faith and credit “generally requires every State to give to a judgment at least the res judicata effect which the judgment would be accorded in the State which rendered it.” Durfee v. Duke (1963), 375 U.S. 106, 109, 84 S. Ct. 242, 244, 11 L. Ed. 2d 186-90. Moreover, “the judgment of a state court should have the same credit, validity, and effect, in every other court of the United States, which it had in the state where it was pronounced.” Under writers National Assur. Co., 455 U.S. at 704, 102 S. Ct. at 1365, 71 L. Ed. 2d at 570 (citations omitted).

¶40 Ian claims that Montana’s UEFJA allows Montana district courts to reopen, vacate, or set aside foreign judgments under Rule 60(b), M.R.Civ.R Section 25-9-503, MCA, Montana’s version of the UEFJA, provides:

Filing and status of foreign judgments. A copy of any foreign judgment authenticated in accordance with an act of congress or the statutes of this state may be filed in the office of the clerk of any district court of this state. The clerk shall treat the foreign judgment in the same manner as a judgment of a district court of this state. A judgment so filed has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, or staying as a judgment of a district court of this state and may be enforced or satisfied in like manner.

(Emphasis added.) Ian argues that the statute’s language allows Montana district courts to provide Rule 60(b), M.R.Civ.R, relief to foreign judgments, and a plain reading of the statute indicates that the procedures, defenses, and proceedings for reopening or vacating a domestic judgment also apply to a registered foreign judgment.

¶41 Ian’s interpretation of § 25-9-503, MCA, is contrary to the purpose and intent of the UEFJA. The UEFJA was enacted to implement the Full Faith and Credit Clause of the United States Constitution. The UEFJA provides the procedural framework for enforcing foreign judgments in the states that have enacted it. The UEFJA’s purpose is to “facilitate interstate enforcements of judgments by providing a summary procedure by which a judgment creditor may enforce the judgment in an expeditious manner in any jurisdiction in which the judgment debtor is found.” Matson v. Matson (Minn. 1983), 333 N.W.2d 862, 867. The UEFJAis to be “interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it.” Section 25-9-508, MCA. Considering these guideposts, this Court is required to construe the UEFJA in order to obtain uniformity with the rulings of sister state courts.

¶42 We disagree with Ian’s interpretation that, under § 25-9-503, MCA, a foreign judgment duly filed in Montana can be subjected to the same defenses and proceedings for reopening or vacating as a domestic judgment, and remain consistent with full faith and credit. Rather, we hold that the only defenses that may be raised to destroy the full faith and credit obligation owed to a final judgment are those defenses directed at the validity of the foreign judgment. See Durfee, 375 U.S. at 110, 84 S. Ct. at 244, 11 L. Ed. 2d at 190 (“a judgment of a court in one State is conclusive upon the merits in a court in another State only if the court in the first State had power to pass on the merits — had jurisdiction, that is to render the judgment.”) Therefore, we determine that under § 25-9-503, MCA, certain defenses such as lack of personal or subject matter jurisdiction of the rendering court, fraud in the procurement of the judgment, lack of due process, satisfaction, or other grounds that make the judgment invalid or unenforceable may be raised by a party seeking to reopen or vacate a foreign judgment filed in Montana. These defenses have been recognized by other states that have held that the language similar to that found in § 25-9-503, MCA, does not allow the merits of a foreign judgment to be reopened or reexamined by the state where it is recorded. Marworth, 810 P.2d 653; Matson, 333 N.W.2d 862; Rosenstein v. Steele (Nev. 1987), 747 P.2d 230; Morris Lapidus Associates v. Airportels, Inc., (Penn. 1976), 361 A.2d 660; Wooster v. Wooster (S.D. 1987), 399 N.W.2d 330; Data Management Systems, 709 P.2d 377.

¶43 Foreign judgments are properly accorded this deference to avoid offending the Full Faith and Credit Clause of the United States Constitution. In fact, Montana’s version of the UEF JA recognizes this deference by defining a foreign judgment as “a judgment, decree, or order of a court of the United States or any other court which is entitled to full faith and credit in this state.” Section 25-9-502, MCA.

¶44 Ian does not challenge the validity of the foreign judgment based upon lack of personal or subject matter jurisdiction of the Wyoming court, fraud in the procurement of the judgment, lack of due process, satisfaction or any other grounds that would make the Wyoming judgment invalid or unenforceable. Instead, Ian argues that the Wyoming judgment, obtained by default, should be set aside based on his excusable neglect in tending to the judicial proceedings there. He contends that his failure to file an answer to Patricia’s complaint in Wyoming was excusable because he was engaged in negotiations to resolve the case and had filed a dissolution proceeding in the Montana District Court.

¶45 However, Ian’s argument is based on the premise that a foreign judgment obtained by default and duly filed in Montana should be set aside because Montana law disfavors judgments obtained by default. See, e.g., Waldher v. Federal Deposit Insurance Corp. (1997), 282 Mont. 59, 62, 935 P.2d 1101, 1103 (In setting aside a default judgment obtained in a Montana district court, we stated “[t]he policy of law is to favor a trial on the merits.”); § 25-9-101, MCA. Although excusable neglect might entitle a party to have a Montana default judgment set aside under Rule 60(b), M.R.Civ.P., it has no application here, since the judgment was rendered in Wyoming. During oral argument, Ian’s counsel argued that there is a difference in public policy between the states of Montana and Wyoming regarding the status and deference accorded to default judgments. As the United States Supreme Court has recently held, there is no public policy exception to the full faith and credit accorded to final judgments. Baker by Thomas v. General Motors Corp. (1998), 522 U.S. 222, 118 S. Ct. 657, 1390 L. Ed. 2d 580. Under the Full Faith and Credit Clause, we are obligated to give effect to the Wyoming judgment, even assuming the law underlying the judgment contravenes the public policy of Montana.

¶46 In this case, the default judgment was obtained in Wyoming. Tan, believing that his neglect and inadvertence were grounds to set aside the Wyoming judgment, must make his argument before the rendering court in Wyoming. See Blair v. Blair (1962), 140 Mont. 278, 287-88, 370 P.2d 873, 878 (“[T]his case is a collateral attack upon a foreign decree. Therefore jurisdiction for such attack is with the court wherein the judgment was rendered.”).

¶47 In fact, during the appeal proceedings before this Court, Ian went back to the rendering court in Wyoming and attempted to set aside the default judgment based, in part, upon excusable neglect. The Wyoming court denied Ian’s request, finding that he had failed to make the necessary showing to set aside the default judgment. Having lost before the Wyoming court, Ian cannot continue to litigate the same issues in Montana.

¶48 We conclude that the District Court did not err in denying Ian’s motion to set aside the foreign judgment filed in Montana. The foreign judgment is entitled to full faith and credit in Montana. This Court recognizes that the foreign judgment is a final judgment, granting Patricia a valid divorce from Ian and an enforceable property division. Accordingly, we also conclude that the District Court did not err in granting Patricia’s motion for summary judgment in Ian’s dissolution proceeding.

¶49 Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICE GRAY concur. JUSTICES NELSON, LEAPHART, TRIEWEILER and HUNT specially concur and filed opinions.

¶50 I concur in our discussion of Issues 2 and 3.1 concur in the result of Issue 1; I disagree with our rationale, however.

¶51 In our discussion of Issue 1 we hold that when a party has identified and titled a motion as one to alter or amend pursuant to Rule 59(g), M.R.Civ.P, this Court is not going to analyze the substance of the motion to see if it comes under the definition of a motion to alter or amend. I disagree with this rule.

¶52 In Miller v. Herbert (1995), 272 Mont. 132, 135-36, 900 P.2d 273, 275, we held that it is the substance of a document that controls, not its caption. Specifically, we stated: “We shall look to the substance of a motion, not just its title, to identify what motion has been presented.” Miller, 272 Mont. at 136, 900 P.2d at 275. Our decision in Miller was in line with Association of Unit Owners v. Big Sky (1986), 224 Mont. 142, 148, 729 P.2d 469, 472, wherein we stated that “[w]e disregard that terminology in the title of the summons.” More recently, in discussing Association of Unit Owners, we noted that “in [.Association of Unit Owners] the content of the summons was more important than its title.” Yarborough v. Glacier County (1997), 285 Mont. 494, 498, 948 P.2d 1181, 1183.

¶53 Notwithstanding this precedent, in Moody v. Northland Royalty Co. (1997), 286 Mont. 89, 951 P.2d 18, 22, we carved out an exception to the substance-controls-title rule for “documents which have procedural significance beyond the merits of their content.” In those cases the title controls the substance of the document. The theory underlying this exception is that busy attorneys accord different amounts of “urgency” to documents depending upon how the document is labeled, Moody, 951 P.2d at 22, with the presumed consequence that mislabeled documents will not be timely read or responded to. My disagreement with this decision will not be reiterated here. See Moody, 951 P.2d at 23 (Nelson, J., dissenting).

¶54 In the case at bar, we carve out yet another exception to the substance-controls-title rule. This exception might be denominated as the “Rule 59” exception. Under this exception, no matter what the practitioner puts in the motion, as long as it is properly labeled, we are not going to further analyze it as to content. The rationale for this latest exception is to assure movants that their motion will, if it is properly labeled, fall within the framework of Rule 59 — apparently even when the motion actually does not.

¶55 Thus, the substance-controls-title rule now seems to be: The substance of a document controls over its title unless the document has a procedural significance beyond the merits of its content or unless the document happens to be labeled as a Rule 59 motion in which case we don’t care what the substance is. Hopefully this result-oriented approach will inspire the sort of confidence and certainty in the practice of law that its proponents suggest. Frankly, I doubt that it will. No amount of finessing the rules is going to save lawyers who habitually fail to read their mail; who fail to calendar mandatory response dates; who fail to timely answer discovery requests or obtain extensions; who conduct their practice in the eleventh hour; who ignore the requirements of the rules of civil and appellate procedure; and who take on more work and clients than they can responsibly and competently handle.

¶56 Rather, I respectfully suggest that in attempting to judicially craft these various exceptions, we are, to quote Oliver Wendell Holmes, Jr., “spending] a great deal of ... time shoveling smoke.” Black-letter Montana law, § 1-3-219, MCA, requires that we respect form less than substance. Our decisions — majority and dissenting opinions and special concurrences alike — favorably espousing this principle are legion.1 submit that our precedent and Montana practitioners would be better served if we simply followed this law instead of re-creating the wheel to obtain the perceived preferred result in each case.

¶57 Using this approach, i.e., analyzing the substance of Ian’s motion to alter or amend, I conclude that it was, in fact, what he labeled it. As the Court’s opinion points out, in Nelson v. Driscoll (1997), 285 Mont. 355,948 P.2d 256, we adopted established criteria under which a motion for reconsideration would be construed substantively as a motion to alter or amend pursuant to Rule 59(g), M.R.Civ.R In so doing we cited to various authorities which have defined, substantively, what a motion to alter or amend is and is not. It is anomalous that we look to those criteria in determining the substance of a motion to reconsider, yet purposely ignore those same criteria where the issue is whether a motion labeled motion to alter or amend actually is what it purports to be.

¶58 In any event, contrary to the Court’s head-in-the-sand approach, I conclude that Ian’s motion was, in fact, a motion to alter or amend under the Nelson criteria. Specifically, his motion sought to correct what he believed was a manifest error of law, occasioned by the trial court failing to address and determine one of his three independent legal arguments for setting aside the Wyoming judgment. See Nelson, 285 Mont, at 360, 948 P.2d at 259 (a motion to alter or amend is properly filed to, among other things, “correct manifest errors of law or fact upon which the judgment was based”).

¶59 Accordingly, I agree with the result which the Court reaches in its discussion of Issue 1, but on the basis that Ian’s Rule 59 motion was, in substance, a motion to alter or amend.

JUSTICE LEAPHART,

specially concurring.

¶60 I specially concur with the Court’s conclusion affirming the District Court’s granting of Patricia’s motion for summary judgment. I do not, however, agree with the Court’s rationale in reaching that conclusion.

¶61 Montana’s version of the Uniform Enforcement of Foreign Judgments Act (UEFJA), § 25-9-503, MCA, provides as follows:

Filing and status of foreign judgments. A copy of any foreign judgment authenticated in accordance with an act of congress or the statutes of this state may be filed in the office of the clerk of any district court of this state. The clerk shall treat the foreign judgment in the same manner as a judgment of a district court of this state. A judgment so filed has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, or staying as a judgment of a district court of this state and may be enforced or satisfied in like manner.

¶62 The language of the Act very clearly provides that a foreign judgment is subject to reopening or vacating on the same grounds as a judgment of the State of Montana. This language directly conflicts with the dictates of the Full Faith and Credit Clause of the United States Constitution which, as the Court recognizes, requires that “the judgment of a state court should have the same credit, validity, and effect, in every other court of the United States, which it had in the state where it was pronounced.” Underwriters Assur. Co., 455 U.S. at 704, 102 S.Ct. at 1365 (citations omitted). It goes without saying that we cannot give the judgment in question the same credit and validity that it would have in Wyoming (its state of origin) and, at the same time, subj ect that judgment to reopening and vacating under the laws of Montana, including Rule 60(b), M.R.Civ.P.

¶63 The Court purports to resolve this conundrum by interpreting § 25-9-503, MCA, in such a manner that the only defenses allowed under the UEFJA are those directed at the validity of the foreign judgment (e.g., lack of personal or subject mater jurisdiction, fraud in the procurement, lack of due process, satisfaction or other grounds that make the judgment invalid or unenforceable). In the interests of interpreting our UEFJA consistently with its purpose and with rulings from sister states, the Court holds that the language of § 25-9-503, MCA, “does not allow the merits of a foreign judgment to be reopened or reexamined by the state where it is recorded.”

¶64 The consistency that has been achieved by the Court’s interpretation is nothing short of legerdemain. No matter how harmonious our sister states may be in saying that the UEFJA does not allow vacating or reopening a foreign judgment, they cannot change the fact that the UEFJA provides that a foreign judgment shall be treated in the “same manner as a judgment of a district court of this state [Montana].” In the event more clarity is called for, the Act goes on to elaborate: “A judgment so filed has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, or staying as a judgment of a district court of this state ...” (Emphasis added.) With all due respect to the majority and the Uniform Code Commissioners, this language is only subject to one interpretation: that is, that a judgment from Wyoming, filed in Montana, is subject to reopening or vacating under the laws of Montana, including the excusable neglect provisions of Rule 60(b), M.R.Civ.P. In the words of Ralph Waldo Emerson: “A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.” In creating a consistency where none exists, we have fallen prey to the hobgoblin and have joined the ranks of the little statesmen, philosophers and divines.

¶65 I would hold that § 25-9-503, MCA, is unconstitutional to the extent that it is inconsistent with the Full Faith and Credit Clause. That is, to the extent that it allows a foreign judgment to be reopened or vacated under the laws of another state.

JUSTICE TRIEWEILER

specially concurring.

¶66 I concur with the maj ority’s conclusions that the appellant’s notices of appeal were filed in a timely manner, that the appellant filed the correct motions in the District Court to invoke relief from the Wyoming judgment, and that those motions were timely.

¶67 I concur with the majority’s decision to affirm the District Court’s denial of the plaintiff’s motion to set aside the Wyoming judgment; however, I would affirm the District Court for reasons other than those offered in the majority opinion.

¶68 I disagree with the majority’s conclusion, based on extraneous means of interpretation, that § 25-9-503, MCA, does not allow the appellant to attack a foreign judgment pursuant to Rule 60(b), M.R.Civ.P., on the same basis that he could attack a domestic judgment. The language of § 25-9-503, MCA, is plain on its face and provides, in relevant part, that a foreign judgment filed in this state, “has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, or staying as a judgment of a district court of this state and may be enforced or satisfied in like manner.” When a statute is plain on its face, our obligation is to apply it as it has been written, and not to resort to extraneous sources for purposes of construing what was intended by the authors of the statute. State ex rel. Cobbs v. Montana Dep’t of Social and Rehab. Servs. (1995), 274 Mont. 157, 162, 906 P.2d 204, 207. Section 25-9-503, MCA, clearly provides that foreign judgments filed in this state can be attacked by the same procedures and for the same reasons as domestic judgments. The majority’s reliance on what it concludes was the drafter’s intent, to hold otherwise is contrary to our normal rules of statutory construction and application.

¶69 Having said that, however, I do not believe that the appellant has the right to challenge the Wyoming judgment repeatedly, and where he has already filed and lost the equivalent of a Rule 60(b) motion directly in the court where the judgment was entered, I would conclude that he is precluded by principles of res judicata from repeating that same challenge in a Montana court. The appellant did not appeal from denial of his post-judgment motion in Wyoming and, therefore, that judgment is as final as if it had been unsuccessfully challenged in Montana pursuant to § 25-9-503, MCA.

¶70 Because, as the majority recognizes, the appellant has already been unsuccessful in having his default judgment set aside in the Wyoming court based upon excusable neglect, I do not believe it was necessary for this Court to interpret § 25-9-503, MCA, as it has in order to affirm the District Court.

¶71 Furthermore, even though the plain language of § 25-9-503, MCA, authorizes the appellant’s action in the Montana District Court to set aside the Wyoming judgment pursuant to Rule 60(b), M.R.Civ.R, I would conclude that the authority to authorize such a challenge is preempted by 28 U.S.C. § 1738 which requires that foreign judgments be given the same effect they would be given in the state from which they originated. In other words, the federal standard for attacking a foreign judgment requires that its validity be considered based on the law of the state where it originated. Montana law provides that foreign judgments are subject to attack for the same reasons that domestic judgments would be subject to attack. The two standards are inconsistent and the. federal law has preemptive effect.

¶72 The supremacy clause of the United States Constitution provides that “[t]his constitution, and the laws of the United States which shall be made in pursuance thereof... shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” U.S. Const, art. VI, cl. 2. Interpretation of the supremacy clause has created the doctrine of federal preemption, pursuant to which state laws that conflict with federal law are preempted and “without effect.” See Maryland v. Louisiana (1981), 451 U.S. 725, 746, 101 S. Ct. 2114, 2128-29, 68 L. Ed. 2d 576, 595.

¶73 Neither do I agree with the concurring opinion of Justice Leaphart that § 25-9-503, MCA, is unconstitutional in violation of the full faith and credit clause found in Article IV, Section 1, of the United States Constitution. I believe that the fiill faith and credit clause simply requires that Montana give the same effect to foreign judgments that it would give to domestic judgments and that is what the plain language of § 25-9-503, MCA, does. See, e.g., Phares v. Nutter (Ariz. 1980), 609 P.2d 561. However, the full faith and credit clause also authorizes Congress to expand on the effect to be given to foreign judgments and that is what it did when it enacted 28 U.S.C. § 1738.

¶74 For these reasons, I concur with the result arrived at by the majority, althoughl do not agree with all that is said in the majority opinion.

JUSTICE HUNT joins in the foregoing concurring opinion.

      . A lengthy string-cite to the cases would serve no particular purpose except to take up space. I suggest that if the reader performs an electronic search of Montana case law using the query “form over substance” he or she will locate over six dozen opinions of one sort or another citing this maxim.