Marriage of Dilsaver
CourtMontana Supreme Court
Date FiledNovember 4, 2026
DocketDA 25-0807
JudgeGustafson
StatusUnpublished
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Full Opinion
11/04/2026
DA 25-0807
Case Number: DA 25-0807
IN THE SUPREME COURT OF THE STATE OF MONTANA
2026 MT 267N
IN RE THE MARRIAGE OF:
MICHELLE L. DILSAVER,
Petitioner and Appellee,
and
GREGORY C. DILSAVER,
Respondent and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and For the County of Lake, Cause No. DR-25-74
Honorable John A. Mercer, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Gregory C. Dilsaver, Self-Represented, St. Marys, Kansas
For Appellee:
Casey L. Emerson, Clinton J. Fischer Law Office, P.C., Polson,
Montana
Submitted on Briefs: September 9, 2026
Decided: November 4, 2026
Filed:
__________________________________________
Clerk
Justice Ingrid Gustafson 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 Gregory C. Dilsaver (Gregory) appeals from the Findings of Fact, Conclusions of
Law, and Decree of Legal Separation (DLS) entered by the Twentieth Judicial District
Court, Lake County, on October 16, 2025. The District Court granted Petitioner Michelle
L. Dilsaver (Michelle) a decree of legal separation, adopted her proposed Final Parenting
Plan, and equitably apportioned the parties’ property and debts. Gregory contends the
District Court erred in two respects: first, by failing to consider his answer to the Petition
for Legal Separation; and second, by failing to provide him with notice of the hearing,
thereby denying him a meaningful opportunity to present his case. We affirm.
¶3 Michelle filed a Petition for Legal Separation on June 6, 2025. She attempted
personal service on Gregory at the physical address Gregory provided to her counsel, but
those attempts were unsuccessful because Gregory did not reside at that address. Petitioner
then served Gregory by publication, and an Affidavit of Publication was filed in the District
Court. Gregory did not file any responsive pleading within the time allowed by the
Montana Rules of Civil Procedure. On September 29, 2025, upon proof that Gregory had
failed to plead or otherwise defend, the Clerk of District Court entered Gregory’s default
for his failure to respond to the Petition or otherwise appear.
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¶4 The District Court thereafter conducted a hearing on October 16, 2025.1 Michelle
appeared via Zoom and her counsel, Casey L. Emerson, appeared in person. Michelle was
sworn and testified. The District Court took judicial notice of a Permanent Order of
Protection entered in Cause No. DR-24-94, in favor of Michelle against Gregory. Michelle
testified to serious marital discord adversely affecting the parties’ attitudes toward the
marriage, and to her domicile in Montana for more than ninety days preceding the filing of
the Petition. The court found that the parties were married on December 12, 1998, in
Buffalo, New York, and that they have eight minor children.
¶5 Michelle submitted a proposed Final Parenting Plan, attached to the DLS as Exhibit
A. The Plan provides that “[i]t is in the best interests of the minor children to reside solely
with Mother. Any contact between Father and the children shall be supervised, and shall
be by agreement between Mother and Father.” The District Court expressly found
Michelle’s proposed Final Parenting Plan “to be in the best interests of the parties’ minor
children.”
¶6 The DLS further details the parties’ real property at 45663 Big Meadows Road,
Proctor, Montana, and sets forth Petitioner’s proposed distribution which was adopted by
the District Court. The court also adopted Petitioner’s proposed division of personal
property and allocation of debts.
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The DLS states the hearing occurred on October 16, 2024. Because the Petition was filed June 6,
2025, and the Notice of Entry of Judgment reflects issuance of the Decree on October 16, 2025,
the 2024 date appears to be a clerical error. We treat the hearing date as October 16, 2025.
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¶7 Critically, the DLS addresses Gregory’s post-default attempt to answer in Finding
of Fact No. 2:
That the Respondent attempted to file, after his Default was entered, an
Answer to the Petition for Legal Separation; however, said document was
not filed. First, Respondent’s Default had already been entered.
Additionally, Respondent failed to provide the filing fee of $70.00.
Respondent also failed to provide the Clerk of Court and the parties with
any contact information with the exception of a physical address at which
Respondent does not reside.
¶8 On October 16, 2025, the District Court entered its DLS, granting legal separation,
approving the property division, and adopting Michelle’s Final Parenting Plan. Notice of
Entry of Judgment was served on Gregory by U.S. mail on October 17, 2025, at his
St. Marys, Kansas address.
¶9 On appeal, Gregory asserts he “filed a timely and legally served Answer to the
Petition” and that the District Court “did not acknowledge” his Answer or afford him an
opportunity to attend the hearing. He further argues that the resulting decree is “tantamount
to a unilateral decree of legal separation” and that he was deprived of property without due
process of law.
¶10 We review questions of law de novo to determine whether the court’s interpretation
of the law is correct. In re Marriage of O’Moore, 2002 MT 31, ¶ 8, 308 Mont. 258, 42 P.3d
767.
¶11 Gregory’s first claim—that he filed a timely and legally served answer—cannot be
reconciled with the record or the governing procedural rules. The DLS establishes that
Gregory was served by publication and that he “fail[ed] to respond to the Petition or
otherwise appear in this matter within the time allowed by the Montana Rules of Civil
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Procedure.” M. R. Civ. P. 12(a)(1)(A) requires a defendant to serve an answer within
21 days after service. Gregory did not do so.
¶12 M. R. Civ. P. 55(a) then mandates that “the clerk must enter the party’s default”
when a party fails to plead or otherwise defend. The Clerk entered Gregory’s default on
September 29, 2025. Once default is entered, the defaulted party may not file further
pleadings unless the default is set aside under Rule 55(c) or 60(b). Gregory never moved
to set aside the default and the default was never set aside.
¶13 The DLS explains that Gregory attempted to file an answer only after default had
been entered, and that the document “was not filed” because default had already occurred,
the filing fee was not paid, and Gregory failed to provide valid contact information. These
deficiencies are not trivial. Filing fees are mandatory, and accurate contact information is
essential to the administration of justice. M. R. Civ. P. 5(d)(2) provides that a document is
filed by delivering it to the clerk or to a judge who agrees to accept it for filing, and
M. R. Civ. P. 5(d)(1) requires a certificate of service. Gregory failed to meet the
requirements of M. R. Civ. P. 5(d)(1) or (2).
¶14 To require a district court to consider an untimely, unfiled, fee-deficient document
tendered after default would undermine the structure and purpose of the Montana Rules of
Civil Procedure. The rules establish a clear sequence—service, time to respond, entry of
default, and limited participation thereafter. Gregory’s failure to comply with these rules
does not obligate the District Court to disregard them. “While pro se litigants may be given
a certain amount of latitude, that latitude cannot be so wide as to prejudice the other party,
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and it is reasonable to expect all litigants, including those acting pro se, to adhere to
procedural rules.” Greenup v. Russell, 2000 MT 154, ¶ 15, 300 Mont. 136, 3 P.3d 124.
¶15 The District Court correctly recognized that Gregory had been defaulted, that his
attempted answer was procedurally defective, and that it could not be treated as a valid
responsive pleading. We find no error.
¶16 Gregory next argues that he was denied notice of the October 16, 2025 hearing.
This argument is foreclosed by the explicit language of M. R. Civ. P. 5(a)(2), which
provides: “No service is required on a party who is in default for failing to appear.”
Gregory was defaulted on September 29, 2025, and had not appeared personally or through
counsel. M. R. Civ. P. 55(b)(2) further provides that notice of the application for default
judgment is required only when the defaulted party “has appeared personally or by a
representative.” Gregory did not appear personally or through counsel before default was
entered and was therefore not entitled to notice of the hearing.
¶17 Gregory’s due process argument rests on the mistaken premise that he was entitled
to notice of every significant step in the proceedings regardless of his default status.
Due process requires notice and an opportunity to be heard within the framework of the
rules. Gregory received notice by publication, was afforded the time prescribed by
M. R. Civ. P. 12(a) to answer, and was defaulted only after he failed to timely respond or
appear. Once default was entered, the rules no longer required that he be served with notice
of subsequent proceedings.
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¶18 The District Court acted consistently with M. R. Civ. P. 5(a)(2) and 55(b)(2). It was
not required to provide notice of the hearing to a party who had been properly defaulted
and who had never appeared. We find no error.
¶19 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 or by the clear application of
applicable standards of review.
¶20 Affirmed.
/S/ INGRID GUSTAFSON
We Concur:
/S/ CORY J. SWANSON
/S/ LAURIE McKINNON
/S/ KATHERINE M. BIDEGARAY
/S/ JIM RICE
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