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Connell v. State12/18/2003
district court "acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice." Shilhanek v. D-2 Trucking, Inc. , 2000 MT 16, 24, 298 Mont. 101, 24, 994 P.2d 1105, 24.
DISCUSSION
1. Did the District Court err in denying the State of North Dakota's motion to intervene as a matter of right under Rule 24(a)(2) of the Montana Rules of Civil Procedure?
The State of North Dakota argues that the District Court did not have subject matter jurisdiction in 1998 to dismiss or to modify a North Dakota child support order. As such, the State of North Dakota maintains that its motion to intervene satisfies the criteria necessary for intervention of right under Rule 24(a)(2) of the Montana Rules of Civil Procedure.
Specifically, the State of North Dakota contends that its intervention is timely, given that no time limit exists on when to bring a motion to vacate. Second, the State of North Dakota contends that it has a legally protectable interest in the subject matter of this case, namely child support arrearages. Third, the State of North Dakota argues that the District Court's 1998 opinion and order impaired its ability to protect its interest by, in effect, prohibiting it from commencing a child support enforcement action against Connell in the State of Montana. Fourth, the State of North Dakota maintains that its interest was not adequately protected by CSED, because CSED did not appeal the District Court's 1998 opinion and order. Finally, the State of North Dakota contends that its purpose in moving for intervention is not to relitigate the issues of child support. Rather, its purpose is to establish that the District Court lacked subject matter jurisdiction in dismissing with prejudice CSED's claim against Connell for child support.
Connell argues that intervention is not appropriate, as the State of North Dakota's motion for intervention was untimely and because the State of North Dakota's interests were adequately represented. Specifically, Connell maintains that the State of North Dakota did nothing to attempt to intervene while the District Court entered three separate orders regarding this case, the last of which was entered approximately three years prior to the State of North Dakota's first attempt at intervention. In addition, Connell contends that the State of North Dakota's rights were, indeed, represented since CSED acted as an agent of the State of North Dakota. Finally, Connell argues that the doctrine of res judicata bars any further proceedings in this case, as the State of North Dakota could have appealed the issues it now raises after the District Court first issued its February 5, 1998 order, but it did not.
We agree that the State of North Dakota's motion for intervention is untimely.
A motion for intervention shall be permitted when the applicant claims that an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.
Rule 24(a)(2), M.R.Civ.P.
In Estate of Schwenke v. Becktold (1992), 252 Mont. 127, 827 P.2d 808, we set out the four criteria which a petitioner must meet in moving for intervention as a matter of right. These criteria include: (1) the motion must be timely; (2) the intervenor must have an interest in the subject matter at issue; (3) the intervenor must have an interest which may be impaired by the disposition of the case; a
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