Marriage of Bengala ( 1995 )

No. 94-349
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
IN RE THE MARRIAGE OF
SHARON WALTON, f/k/a SHARON BENGALA,
Petitioner and Respondent,
and
MICHAEL C. BENGALA,
Respondent and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Ed P. McLean Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Michael Bengala, Canfield, Ohio (pro se)
For Respondent:
Dennis E. Lind, Datsopoulos, MacDonald & Lind,
Missoula, Montana
Submitted on Briefs: March 2, 1995
Decided: March 16, 1995
I
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
Michael C. Bengala (Michael), pro se, appeals from the May 16,
1994 order of the Fourth Judicial District Court, Missoula County,
denying his motion for a new trial. We affirm.
The issue on appeal is whether the District Court abused its
discretion in denying Michael's motion for new trial.
The underlying proceedings involved a dissolution action
initiated by Michael's wife Sharon in March of 1990. A decree of
dissolution and judgment was entered by the District Court in June
1991, following a trial before a court-appointed special master.
Michael appealed from the court's judgment, but the appeal was
subsequently dismissed by this Court because of his failure to
prosecute his appeal.
In March 1994, Michael filed his motion for new trial,
alleging denial of due process. The presiding district judge,
Judge John Henson, subsequently recused himself and District Judge
Ed McLean assumed jurisdiction. In May 1994, Judge McLean entered
an order denying Michael's motion for new trial and this appeal
followed. Subsequently, Michael filed motions to disqualify Judge
McLean and, we note by the record, those motions were ruled upon by
District Judge Jeffrey H: Langton in January 1995. Proceedings
subsequent to Michael's notice of appeal from Judge McLean's order
denying his motion for new trial are not at issue here, however,
and will not be discussed.
In his March 16, 1994 motion, Michael contends that he is
entitled to a new trial because of "rumors' that the judge who
2
presided in the underlying dissolution action, Judge Henson, had a
relationship with the law firm of Datsopoulos, MacDonald & Lind,
P.C., Sharon's legal counsel in the dissolution action. While it
appears that prior to the filing of the dissolution proceedings by
Sharon, her legal counsel did represent a member of Judge Henson's
family in a civil action and did represent Judge Henson himself in
a court proceeding, both of those proceedings were concluded long
before the Bengala dissolution action was filed in his court.
In his order denying Michael's motion for new trial, Judge
McLean concluded that the motion was without merit for the
following reasons:
(1) Respondent's motion is not timely as
approximately three years has transpired since the trial
in this matter;
(2) respondent chose not to be present during the
trial;
(3) respondent failed to prosecute his appeal
following the trial;
(4) a special master independently presided over the
trial;
(5) Judge Henson accepted the special master's
recommendations without amendment;
(6) no judicial conflict existed as there were no
contractual relationships between Judge Henson and
petitioner's [Sharon's] legal counsel at the time of
these proceedings.
The decision to grant or deny a motion for new trial is within
the sound discretion of the trial judge and will not be disturbed
absent a showing of manifest abuse of that discretion. Jim's
Excavating Service v. HKM Assoc. (1994), 265 Mont. 494, 512, 878
P.2d 248, 259, quoting Nelson v. Flathead Valley Transit (1992),
251 Mont. 269, 274, 824 P.2d 263, 266
3
Aside from the other grounds for denying Michael's motion for
new trial as set forth by Judge McLean in his order, one reason is
dispositive. Michael's motion for new trial was not timely filed.
Rule 59(b), M.R.Civ.P., requires that "[al motion for a new trial
shall be served not later than 10 days after service of notice of
the entry of the judgment." In this case, Judge Henson entered his
order, judgment and decree dissolving the parties' marriage and
adopting the recommended findings of fact, conclusions of law and
final decree of the special master on June 14, 1991. The record
reflects that notice of entry of the District Court's judgment and
order was filed and served upon Michael by Sharon on June 24, 1991.
Clearly, Michael's motion for new trial served some two years
and nine months after service of notice of the entry of the
judgment, is untimely under the Rule. In Ring v. Hoselton (1982),
197 Mont. 414, 643 P.2d 1165, we determined that "[blecause the
motion for new trial was not served within the ten day period
required by Rule 59(b), the motion was therefore deemed denied
under the provisions of the last paragraph of Rule 59(d) .'I Rinq,
643 P.2d at 1170. In Matter of Estate of Gordon (1981), 192 Mont.
499, 628 P.2d 1117, noting the ten day requirement of Rule 59(b),
we emphasized that the filing requirements under the Rule were not
to be disregarded but were, instead, to be strictly enforced.
Gordon, 628 P.2d at 1119.
Michael did not cite the District Court nor does he cite this
Court to any authority that would exempt his motion for new trial
from the time requirements of Rule 59(b). Under the circumstances,
4
we hold that the District Court did not manifestly abuse its
discretion in denying Michael's motion for new trial as being not
timely filed.
Affirmed.
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 this Court and by a report of its result to the
West Publishing Company.
We Concur:
5
March 16, 1995
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
Michael Bengala
238 S. Broad St.
Canfield, OH 44406
Dennis E. Lind, Esq.
Datsopoulos, MacDonald & Lind
201 W. Main, Ste. 201
Missoula, MT 59802
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA