Jonas v. Jonas, 2013 MT 202 (July 23, 2013) (5-0) (Wheat, J.)
Issue: (1) Whether the district court erred by denying Edwin’s motion to set aside the charging order and the appointment of the receiver; and (2) whether Linda is entitled to fees and costs under M.R. App. P. 19(5).
Short Answer: (1) No, and (2) yes.
Affirmed & remanded for attorneys’ fees and costs
Facts: Edwin’s third appeal to this Court follows years of litigation in several states. Linda and Edwin were married for 26 years and have three children. Linda filed for divorce in 1988, and their marriage was dissolved in 1990. In December 2009, Linda filed a notice of foreign judgment in Lake County, Montana, to domesticate a 2006 New Jersey state court judgment against Edwin ordering him to pay a total of $695,477: $243,000 in unpaid alimony, $18,000 in unpaid child support, $4,759 in medical insurance and expenses for the children, and $103,991 attorney’s fees and costs. He was also ordered to pay interest, which totaled $147,205 as of Dec. 31, 2005. The judgments were affirmed by the New Jersey intermediate appellate court, and Edwin did not appeal to the New Jersey Supreme Court.
In December 2009, Linda moved to satisfy the New Jersey judgment with Edwin’s interest in Blacktail Mountain Ranch Co, LLC, a Nevada LLC licensed to do business in Montana with assets, including real property, in Lake County. The motion stated that Edwin was the sole and managing member of BMR, and sought a charging order, the appointment of a receiver, the foreclosure of Edwin’s interest in BMW, and the judicial dissolution and winding up of BMR. Linda also filed a notice of lis pendens, noticing Edwin’s attorney and BMR of what she sought.
Edwin responded by arguing that Linda had received money and property that more than satisfied all obligations owing to her. The response did not raise specific issues with the requested charging order, appointment of a receiver, or dissolution and winding up of BMR, nor did it deny Linda’s contention that Edwin was the sole managing member of BMR.
A writ of execution issued against Edwin in the amount of $1,091,391.21 on Feb. 1, 2010. The district court thereafter issued a charging order, an order for the appointment of a receiver, foreclosure of the lien, and sale of BMR’s property on Feb. 3, 2010. The charging order was granted against Edwin’s distributional interest in BMR, and the resulting lien was ordered to be immediately foreclosed. The court also directed Linda to appoint a receiver to wind up BMR, receive Edwin’s share of the distributions, and transfer the distributions to Linda until the judgments against Edwin, plus interest and costs, were satisfied. The court noted that Edwin had not challenged Linda’s entitlement to a charging order or the Court’s authority to order the relief she requested.
Edwin moved for reconsideration on Feb. 12, 2010, but did not file a brief. The court appointed a receiver on Feb. 18, 2010, and Edwin renewed his motion for reconsideration on Feb. 23, 2010, again without a brief. The district court denied both motions. Edwin appealed and this Court affirmed. 2010 MT 240N.
Edwin filed a Rule 60 motion for relief from the 2006 New Jersey judgment in May 2011. His brief argued that the charging order should be set aside because the 2006 judgment had already been satisfied. The district court denied the Rule 60 motion on July 14, 2011. He appealed, and this Court affirmed. 2010 MT 109N.
Procedural Posture & Holding: Edwin moved for relief from the charging order, appointment of receiver, foreclosure of the lien and sale of BMR on Aug.. 1, 2010, after his second appeal was decided. The district court denied the motion on Aug. 27, 2012, holding that Edwin’s arguments were waived because he had not raised them previously. The court also found that Edwin’s motion was filed without good cause, and ordered Edwin and his attorney to pay for Linda’s costs, expenses, and attorney’s fees reasonably incurred in opposing the motion. The court later withdrew this holding based on a stipulation by the parties. Edwin appeals, and the Supreme Court affirms.
Reasoning: (1) The district court denied Edwin’s motion by applying the law of the case doctrine, a doctrine with deep jurisprudential roots. A legal decision that is not appealed when it could be becomes the law of the case for future litigation; the party who does not appeal is deemed to have waived the right to attack the decision later in the same litigation. The doctrine reflects principles of judicial economy and the finality of judgments. The district court properly upheld these principles by denying Edwin’s motion.
(2) Edwin has engaged in a course of drawn-out, vexatious litigation in New Jersey, Florida, and Montana. Rule 19(5) of the Montana Rules of Appellate Procedure allow the Court, upon request, to award sanctions to the prevailing party when the appeal is “determined to be frivolous, vexatious, filed for purposes of harassment or delay, or taken without substantial or reasonable grounds.” The Court concludes Edwin’s appeal is vexatious and was filed for the purposes of delay, and remands for a determination of costs and attorney’s fees reasonably incurred on appeal.