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In re Marriage of Remitz

Supreme Court of Montana

December 11, 2018

IN RE THE MARRIAGE OF: HEATHER M. REMITZ, Petitioner and Appellant, and RICK S. REMITZ, Respondent and Appellee.

          Submitted on Briefs: October 24, 2018

          APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DR-11-147C Honorable John C. Brown, Presiding Judge

          For Appellant: Christopher J. Gillette, The Law Office of Christopher J. Gillette, PC, Bozeman, Montana

          For Appellee: Penni L. Chisholm, Chisholm & Chisholm P.C., Columbia Falls, Montana

          OPINION

          Ingrid Gustafson Justice

         ¶1 Petitioner Heather M. Remitz (Heather) appeals from a M. R. Civ. P. 60 Motion for Relief from Judgment (Rule 60 Motion) deemed denied by the passage of time in the Eighteenth Judicial District Court, Gallatin County. We vacate the District Court's denial of Heather's Rule 60 Motion and remand to the District Court (not the Standing Master) to conduct limited discovery, hold a hearing on the Rule 60 Motion, and issue a ruling thereon.

         ¶2 We restate the issue on appeal as:

         Whether the District Court erred in denying Heather's M. R. Civ. P. 60 Motion for Relief from Judgment?

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 Heather and Respondent Rick S. Remitz (Rick) were married in 1994, separated in 2009, and have two children now over the age of majority. Heather filed for divorce in April 2011, which included the standard economic restraining order preventing either party from "in any way disposing of any property." The parties' primary asset was their 51% interest in a medical equipment business (Business) valued by Rick's expert at $2, 248, 000 in August 2013. Trial was held in March 2014 before the district's Standing Master. During trial Rick's valuation expert testified to his valuation created seven months prior. Heather did not submit evidence from her own Business valuation expert.

         ¶4 In May 2017-more than three years after trial-the Standing Master issued her Findings of Fact, Conclusions of Law and Final Decree of Dissolution (Decree). In the Decree, the Standing Master accepted the $2, 248, 000 valuation and awarded the parties' ownership in the business to Rick. The Decree listed and equally divided the parties' interest in all marital assets and debts including the Business, awarding each party exactly half of the marital estate (each receiving $817, 074).

         ¶5 In June 2017, Rick filed Specific Objections to the Decree which argued, amongst other things, the Business should have been excluded as a marital asset and some of Heather's premarital and gifted assets should have counted as marital.

         ¶6 On August 28, 2017, Rick's counsel advised Heather's counsel the Business was being sold, but provided no details such as price. On September 8, 2017, Rick withdrew his objections. On September 12, 2017, the Decree was adopted as a final order of the court which lifted the economic restraining order in place since the case was filed in 2011. Less than a month later, on October 9, 2017, the business sold for between $20 million and $32 million, [1] ten times the valuation in the Decree. Heather discovered the sale in November 2017, and promptly filed her Rule 60 Motion on December 4, 2017.

         ¶7 In her Rule 60 Motion Heather alleges she should be granted relief from judgment based on subsections (b)(1) mistake, inadvertence, surprise, or excusable neglect; and (b)(2) newly discovered evidence; or (b)(6) the catchall provision ("any other reason that justifies relief"). Specifically, the motion requests the following relief: 1) vacating the property terms of the Decree, 2) allowing additional discovery as requested in the motion, 3) requiring Rick to preserve any proceeds of sale of the Business in his possession or control, 4) requiring Rick to account for proceeds of the sale of the Business, and 5) setting a hearing to address the division of sales proceeds of the Business. The motion ...


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