Marriage of Mellito , 2016 MT 224N ( 2016 )

09/06/2016
DA 16-0065
Case Number: DA 16-0065
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 224N
IN RE THE MARRIAGE OF:
CAMI LU MELLITO,
Petitioner and Appellee,
v.
DARREN MELLITO,
Respondent and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DR 08-88B
Honorable Mike Salvagni, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Darren Mellito, Self-Represented, Bozeman, Montana
For Appellee:
Jennifer Wendt Bordy, Attorney at Law, Bozeman, Montana
Submitted on Briefs: July 20, 2016
Decided: September 6, 2016
Filed:
__________________________________________
Clerk
Justice Patricia Cotter delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), 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 Darren Mellito (Darren), appearing pro se, seeks relief from a final parenting plan
granting custody of his child, W.M., to Cami Mellito, W.M.’s mother and Darren’s
former wife. A Standing Master for the Eighteenth Judicial District Court issued the
parenting plan along with findings, conclusions, and a decree of dissolution on May 11,
2015. On June 10, 2015, Darren appealed the Standing Master’s conclusions to this
Court. We dismissed that appeal without prejudice because Darren had not filed timely
objections to the Standing Master’s findings and conclusions in the District Court,
pursuant to Beals v. Beals, 2013 MT 120, 370 Mont. 88, 300 P.3d 1158, and
§ 3-5-126(2), MCA.
¶3 On October 30, 2015, Darren moved for relief from judgment in the District Court,
apparently invoking M. R. Civ. P. 60. On January 4, 2016, the District Court issued an
order noting Darren’s motion was deemed denied after 60 days had passed without a
ruling on the motion. See M. R. Civ. P. 60(c)(1). Darren now appeals from that order,
which we affirm.
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¶4 We are willing to give pro se litigants some leeway regarding technical rule
requirements. In re Marriage of McMahon, 2002 MT 198, ¶ 7, 311 Mont. 175, 53 P.3d
1266. Generally, we review a district court’s ruling on a Rule 60(b) motion for abuse of
discretion. In re the Marriage of Orcutt, 2011 MT 107, ¶ 5, 360 Mont. 353, 253 P.3d
884. Some exceptions to this general standard exist, but Darren has not clearly invoked
any of those exceptions.
¶5 In his brief, Darren does not address his motion for relief or the District Court’s
denial of the motion. Instead, Darren argues the Standing Master’s findings and
conclusions are defective for two reasons: first, the conclusions are based on hearsay, and
second, the Standing Master failed to consider his affidavit as dispositive of the best
interests of the child, W.M.
¶6 Regarding the alleged hearsay, Darren has not provided a transcript of the
proceedings below, so we are unable to determine that the Standing Master erred in
admitting the testimony she considered in rendering her findings and conclusions.
¶7 Regarding the Standing Master’s treatment of Darren’s affidavit, the Standing
Master was not required give the affidavit more weight than any other evidence.
Darren’s reliance on M. R. Civ. P. 56 and case law concerning summary judgment is
misplaced because summary judgment is not at issue in this appeal.
¶8 For these reasons, we find no basis for granting Darren relief from the District
Court’s order. We therefore affirm the order.
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¶9 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. In the opinion
of the Court, the case presents a question controlled by settled law.
/S/ PATRICIA COTTER
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ MICHAEL E WHEAT
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