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In Re the Marriage of: Lori Lynn Eslick

March 5, 2013

IN RE THE MARRIAGE OF: LORI LYNN ESLICK, PETITIONER AND APPELLEE, AND DAVID MICHAEL ESLICK, RESPONDENT AND APPELLANT.


APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DR-11-691 Honorable Robert L. Deschamps, III, Presiding Judge

The opinion of the court was delivered by: Patricia Cotter

March 5 2013

Submitted on Briefs: January 9, 2013

Filed:

Clerk

Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 David Michael Eslick (David) appeals from a default final decree of dissolution entered by Montana's Fourth Judicial District Court, Missoula County, after David failed to appear at the final pretrial conference. The District Court entered a default in David's absence after refusing to grant his motion for a continuance of the dissolution proceedings due to an unexpected hospitalization. David alleges that the District Court erred by not granting his motion for a continuance. We reverse the District Court's entry of a default decree and remand to allow David to appear at a final pretrial conference and trial.

ISSUE

¶2 David raises the following issue on appeal:

¶3 Did the District Court err in denying David's motion for a continuance?

FACTUAL AND PROCEDURAL BACKGROUND

¶4 The parties were married on August 15, 2005. David has been incarcerated in the Montana State Prison (MSP) since December 2010. Lori Lynn Eslick (Lori) petitioned the District Court for dissolution on October 4, 2011. Lori originally appeared as a self-represented litigant, but retained counsel in March 2012. The District Court allowed David to appear telephonically at all hearings. David proceeded at all times as a self-represented litigant.

¶5 On January 24, 2012, the District Court adopted the scheduling order submitted by David that called for discovery to close on February 29, 2012. The District Court held a status conference on April 10, 2012, at which time it set a June 1, 2012 deadline for the exchange of all witness lists and exhibits. The District Court scheduled the trial for June 25, 2012, with a final pretrial conference to be held on June 12, 2012. When the final pretrial conference was held on June 12, 2012, David did not appear telephonically. Lori's counsel advised the District Court that the clerk of court's office had informed her that an order was returned in the mail from the MSP showing that David was not there. The District Court directed Lori and the clerk to attempt to locate David. Due to David's absence, the District Court rescheduled the final pretrial conference for June 19, 2012.

ΒΆ6 Unbeknownst to the District Court, David was experiencing medical problems that required surgery and hospitalization. On May 5, 2012, David went to the MSP infirmary for an examination of his foot, which had been adversely affected by diabetes and was symptomatic. The MSP infirmary determined that David required immediate transportation to St. Patrick Hospital in Missoula, Montana, because his foot had become septic. David was transported to St. Patrick Hospital, and underwent surgery on May 6, 2012, for the amputation of one-and-a-half toes and a portion of the bottom of his foot. David experienced other complications and remained at St. Patrick Hospital until June 11, 2012. Even after David was transported back to the ...


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