IN RE THE MARRIAGE OF DEREK M. JONES, Petitioner and Appellee,
TAWNY FISHER-JONES, Respondent and Appellant.
Submitted on Briefs: September 26, 2013
District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DR 12-1064 Honorable Gregory R. Todd, Presiding Judge
For Appellant: Tawny Fisher-Jones (Self-Represented); Billings, Montana
For Appellee: Derek M. Jones (Self-Represented); Billings, Montana
Mike McGrath Chief Justice
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and 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 Tawny Fisher-Jones appeals from an order of the Thirteenth Judicial District Court, Yellowstone County, denying her motion to set aside decree. We affirm.
¶3 The issue presented on appeal is whether the District Court abused its discretion in denying Fisher-Jones's motion to set aside the decree.
¶4 Fisher-Jones and Derek Jones were married in 2004 and have four children. Fisher-Jones is currently incarcerated at the Montana Women's Prison. On September 18, 2012, Derek Jones petitioned for dissolution of the marriage. A sheriff's return of service indicates that on September 19, 2012, Civil Officer Curtis Gibbs personally delivered to Fisher-Jones at the Montana Women's Prison a "summons and temporary economic restraining order, petition for dissolution of marriage, petitioner's declaration of assets, debts, income and expenses and petitioner's proposed parenting plan." Fisher-Jones alleges that she was never personally served with any of these documents, and instead became aware of the dissolution proceeding only in "mid-October."
¶5 A default was entered October 12, 2012, and the final decree of dissolution was entered October 17, 2012. Fisher-Jones moved to set aside the decree. The District Court denied her motion on December 4, 2012, finding that her claim of lack of service was refuted by the sheriff's return. On January 4, 2013, Fisher-Jones moved again to set aside the decree, specifically citing M. R. Civ. P. 60(b). Her second motion restated her claim of lack of service, but added no new support. That motion was also denied.
¶6 This Court will reverse the denial of a motion to set aside a default judgment for only a slight abuse of discretion. Wittich Law Firm, P.C. v. O'Connell, 2013 MT 122, ¶ 14, 370 Mont. 103, 304 P.3d 375. The party seeking to set aside the default judgment bears the burden of persuasion. Wittich, ¶ 14.
¶7 A default judgment may be set aside due to surprise, if the judgment is void, or for any other reason that justifies relief. M. R. Civ. P. 55(c); M. R. Civ. P. 60(b). A judgment is void if the respondent is not properly served. Nikolaisen v. Adv. Transformer Co., 2007 MT 352, ¶ 16, 340 Mont. 332, 174 P.3d 940. A sheriff's return of service "is prima facie evidence of the proof of the process or notices having been served as stated." Section 25-3-302, MCA. The statements in the sheriff's return of service may be overcome by proof that is "clear, unequivocal and convincing." Sewell v. Beatrice Foods Co., 145 Mont. 337, 342, 400 P.2d 892, 894 (1965). Without more, the assertion of an individual that he or she was not served, no matter how confident, is not enough to meet this burden. Sewell, 145 Mont. at 342, 400 P.2d at 894.
¶8 Fisher-Jones alleges that she was not served with notice of the petition for dissolution. The sheriff's return clearly states that Fisher-Jones was personally served on September 19, 2012, by Officer Gibbs. Fisher-Jones has not presented anything other than her own assertions to rebut the statements contained in the sheriff's return. This is not enough to establish the "clear, unequivocal and convincing" proof needed to overcome the sheriff's return. Sewell, 145 Mont. at 342, 400 P.2d at 894. The District Court concluded that Fisher-Jones had not demonstrated any grounds for relief under M. R. Civ. P. 60(b). We hold that the District Court's decision to deny her motion was not an abuse of discretion.
¶9 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for memorandum opinions. The issues in this case are ones of judicial ...