Fonk v. Ulsher ( 1992 )

No. 92-331
IN THE SUPREME COURT OF THE STATE OF MONTANA
MICKEY D. FONK,
Petitioner and Appellant,
MAVANEE J. ULSHER,
Respondent and Respondent,
and
J.C.F. and S.J.F.,
Minor Children,
and
MONTANA DEPARTMENT OF SOCIAL
AND REHABILITATION SERVICES,
child Support Enforcement ~ivision,
Real Party in Interest.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Jeffrey Sherlock, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Michael V. Sinclair: Coil & Sinclair, Bozeman,
Montana
For Respondent:
Robert T. Cummins, Attorney at Law, Helena, Montana
Peggy Probasco, Legal Counsel, Department of Social
and Rehabilitation Services, Child Support
Enforcement, Butte, Montana
Justice Karla M. Gray delivered the Opinion of the Court.
Mickey D. Fonk appeals an order of the First Judicial District
Court, Lewis and Clark County, determining that he had been served
personally with process in an earlier default dissolution action.
Because the order is not a final judgment and is not otherwise
appealable, we dismiss this appeal without prejudice.
On April 2, 1987, the District Court entered a default decree
of dissolution dissolving the prior marriage of appellant Mickey
Fonk and respondent Mavanee Ulsher. Among otherthings, the decree
ordered Fonk to pay $75 per month per child as support for J.C.F.
and S.J.F.
On June 14, 1991, Fonk filed a Petition to Determine the
Nonexistence of the Father and Child Relationships. He requested
blood tests pursuant to $j 40-6-112, MCA, for Ulsher, the children,
and himself, a declaration that the father/child relationships are
void, and an order requiring Ulsher and the Department of Social
and Rehabilitation Services to reimburse him for all past child
support paid. He asserted that he had never been served personally
in the original divorce action, and that Ulsher had committed fraud
upon the court by representing that he had fathered the two
children.
On July 18, 1991, Ulsher filed her response to the paternity
action and included a cross-petition for increased child support.
She moved for dismissal of Fonkls petition, arguing that the
paternity issue was res judicata and that his petition was a
collateral attack on the default judgment entered in the
2
dissolution action. On December 13, 1991, the District Court
issued an order setting a hearing to determine whether service was
made on Fonk in the dissolution. In this order, the District Court
stated:
If service was in fact made upon him [Fonk], then
he may not maintain this present action to dispute
the paternity of the children. In such case he
will be barred by the doctrine of res judicata
and/or collateral estoppel from raising the
question.
the hearing April the District Court restricted
testimony to the narrow issue of whether Fonk had been served
personally with process in the dissolution action. On June 4,
1992, t h e District Court filed its order ruling only that Fonk w a s
sewed personally with the petition and summons in the dissolution
proceeding. Fonk appeals from that order.
The right of appeal exists only by statute or rule. Stevens
v. Abbott (1986), 220 Mont. 61, 62, 712 P.2d 1347, 1348. Rule 1 of
the Montana Rules of Appellate Procedure specifies those judgments
and orders that may be appealed to this Court. An order
determining that a party was personally served in a prior action is
not among those contained in the rule. Nor did the parties obtain
certification of the order from the ~istrictCourt pursuant to Rule
In this case, the parties1 rights have not been finally
adjudicated. Ulsher's claim for increased child support and Fonkfs
claims regarding blood tests, paternity, and reimbursement of past
paid child support all remain to be determined by the District
Court. While the ~istrictCourttsDecember order setting a hearing
on the question of service of process implies that Ulsher's motion
to dismiss will be granted if service was made, implication is not
sufficient. The District Court's Order Concerning Service of
Process does not constitute a final judgment against Fonk; nor does
it decide Ulsher's cross-petition. Unless a judgment is final,
this Court is without jurisdiction to hear the appeal and make a
determination. In re Marriage of Adams (1979), 183 Mont. 26, 28,
598 P.2d 197, 198; State ex rel. Raw v. City of Helena (1961), 139
Mont. 343, 350, 363 P.2d 720, 723. We hold that the District
Court's order of June 4, 1992, is not appealable. Therefore, we
dismiss this appeal without prejudice.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to Montana Law Week, State Reporter and West Publishing Company.
C
,
Chief Justice