05/18/2021
DA 21-0153
Case Number: DA 21-0153
IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 128
IN RE THE MARRIAGE OF:
CHRISTOPHER J. WEIGAND,
Petitioner and Appellee,
and
BRYTANY ANNE CATTANEO,
Respondent and Appellant.
APPEAL FROM: District Court of the Sixth Judicial District,
In and For the County of Park, Cause No. DR-18-60
Honorable Brenda R. Gilbert, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Caitlin Pabst, Kristofer Baughman, Element Law Group, PLLC, Bozeman,
Montana
For Appellee:
Anna M. Williams, Anna Williams Law, PLLC, Bozeman, Montana
Decided: May 18, 2021
Filed:
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__________________________________________
Clerk
Justice Laurie McKinnon delivered the Opinion and Order of the Court.
¶1 Petitioner and Appellee Christopher J. Weigand moves this Court to dismiss the
appeal of Respondent and Appellant Brytany Anne Cattaneo in this matter. Weigand
argues that this case is not properly before the Court because it is an appeal from an
interlocutory order. Cattaneo opposes Weigand’s motion to dismiss, arguing that the
pertinent order is appealable pursuant to M. R. App. P. 6(3)(j). Both parties further move
for their attorney fees and costs incurred regarding this motion to dismiss.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Weigand and Cattaneo were married in May 2014. At that time, Cattaneo had a
child, L.C.M., from a previous marriage. Weigand and Cattaneo also had three children
together during their relationship.
¶3 Weigand petitioned for dissolution of the marriage in 2018, in the Montana
Sixth Judicial District Court, Park County. In June 2018, the parties voluntarily entered a
Stipulated Final Parenting Plan that was adopted by the District Court and incorporated
into the final decree of dissolution. Pertinent to the issues on appeal, the parenting plan
provided that L.C.M. would be included in the parties’ stipulated parenting agreement.
¶4 In September 2020, Cattaneo discontinued Weigand’s contact with L.C.M.
Weigand subsequently filed a motion for contempt and for sanctions against Cattaneo.
Cattaneo moved to strike the provisions from the parenting plan that pertained to L.C.M.
The District Court held a hearing on the motions on February 18, 2021.
¶5 On March 30, 2021, the District Court issued Findings of Fact, Conclusions of Law
and Order in which it granted Weigand’s motion for contempt and for sanctions and found
Cattaneo in contempt for failing to follow the parenting plan. The court also ordered
Cattaneo to pay Weigand’s attorney fees and costs associated with the motion for contempt.
The court denied Cattaneo’s motion to strike the provisions from the parenting plan that
pertained to L.C.M. and it ordered L.C.M.’s visitation with Weigand to resume.
¶6 On April 1, 2021, Cattaneo filed a Notice of Appeal in this Court. Weigand’s
Motion to Dismiss Appeal and brief in support and Cattaneo’s Response to Appellee’s
Motion to Dismiss Appeal followed.
DISCUSSION
¶7 Under M. R. App. P. 6(3), an aggrieved party in a civil case may appeal from certain
enumerated orders, provided that the order is the court’s final decision on the referenced
matter. Rule 6(3)(j) specifies that an aggrieved party may appeal “[f]rom a contempt
judgment or order in a family law proceeding when, and only when the judgment or order
appealed from includes an ancillary order entered as a result of the contemptuous conduct
which affects the substantial rights of the parties involved[.]”
¶8 In moving to dismiss this appeal, Weigand argues that the District Court’s March 30,
2021 Findings of Fact, Conclusions of Law and Order is not appealable under Rule 6(3)
because it is not the court’s final decision on the referenced matter as the District Court has
not issued a determination of attorney fees and costs. Weigand further references M. R.
App. P. 4(1)(a), which provides, “A final judgment conclusively determines the rights of
the parties and settles all claims in controversy in an action or proceeding, including any
necessary determination of the amount of costs and attorney fees awarded or sanction
imposed.” Weigand also relies on In re Brockington, 2017 MT 92, ¶ 35, 387 Mont. 260,
400 P.3d 205, in which we dismissed without prejudice an appeal from a contempt order
after concluding that it was not a final judgment because it did not include a decision
regarding the amount of attorney fees and costs awarded.
¶9 Cattaneo argues that dismissal is not warranted in this case because
M. R. Civ. P. 58(e) provides “a carveout exception . . . that applies in this exact
circumstance.” M. R. Civ. P. 58(e) states:
A judgment, even though entered, is not considered final for purposes of
appeal under Rule 4(1)(a), M. R. App. P., until any necessary determination
of the amount of costs and attorney fees awarded, or sanctions imposed, is
made. The district court is not deprived of jurisdiction to enter its order on a
timely motion for attorney fees, costs, or sanctions by the premature filing of
a notice of appeal. A notice of appeal filed before the disposition of any such
motions shall be treated as filed on the date of such entry.
¶10 In urging dismissal, Weigand argues that if this Court allows Cattaneo’s appeal to
proceed, this matter could be subject to piecemeal appeals: If the District Court’s ruling is
upheld, the District Court will then determine the amount of attorney fees and costs owed,
which could then result in Cattaneo appealing from that determination. However, under
M. R. Civ. P. 58(e), the District Court retains jurisdiction to enter its order on the
attorney fees and costs; it need not wait for this Court to decide Cattaneo’s appeal, and
Cattaneo’s appeal will not proceed until such determination is made by the District Court.
Therefore, dismissal of this appeal is not necessary as this Court can treat it as filed on the
date of entry of the District Court’s determination of attorney fees and costs.
¶11 Weigand is correct that in In re Brockington, we dismissed an appeal under similar
circumstances as exist in the present case. In that case, the appellant had been held
in contempt by the District Court for failure to abide by a parenting plan, and she appealed
that ruling prior to the District Court’s determination of attorney fees and costs.
In re Brockington, ¶ 33. This Court concluded that the appellant had the right to appeal
from the order of contempt under M. R. App. P. 6(3)(j), however, we dismissed her appeal
of the contempt order without prejudice because we further concluded the contempt order
was not a final judgment since it did not include a determination of attorney fees and costs.
In re Brockington, ¶ 35. We conclude that our dismissal of the appeal of the contempt
order in In re Brockington, while not incorrect, was unnecessary as M. R. Civ. P. 58(e)
provides an alternate method of managing appeals that are premature because attorney fees
and costs have not been determined. We note that, unlike the present case, neither party in
In re Brockington relied on M. R. Civ. P. 58(e); there, the appellee argued in his response
brief that the appeal of the contempt order was improper as the District Court’s order was
not a final order pursuant to M. R. App. P. 4(1)(a), and the appellant did not file a reply
brief. Thus, as the contempt order was not a final order as provided in
M. R. App. P. 4(1)(a), we dismissed the appeal without prejudice.
¶12 However, in this case, Cattaneo admits that her appeal may be considered premature
and thus should be treated as filed once the District Court issues its ruling on Weigand’s
attorney fees and costs, and Weigand offers no argument as to why dismissal should be the
preferable option. We have applied M. R. Civ. P. 58(e) in other cases,
e.g., Lincoln Props., LLC, v. Amer. Equity Exch., Inc., No. DA 20-0116, Order
(Mont. July 14, 2020). We believe it is appropriate to do so here.
¶13 Cattaneo has further asked this Court to impose sanctions against Weigand for filing
this motion to dismiss despite the existence of M. R. Civ. P. 58(e). Under
M. R. App. P. 19(5), this Court may award sanctions to the prevailing party on a motion to
dismiss if the motion is determined to be frivolous, vexatious, filed for purposes of
harassment or delay, or taken without substantial or reasonable grounds. We do not find
sanctions to be warranted in the present case. Although he has not prevailed, Weigand
reasonably relied on In re Brockington in moving to dismiss this appeal.
ORDER
¶14 Weigand’s Motion to Dismiss this appeal is DENIED.
¶15 Weigand’s Motion for Sanctions is DENIED.
¶16 Cattaneo’s Motion for Attorney Fees and Costs is DENIED.
¶17 Pursuant to M. R. Civ. P. 58(e), the District Court retains jurisdiction to determine
Weigand’s attorney fees and costs associated with his Motion for Contempt and for
Sanctions.
¶18 Cattaneo’s Notice of Appeal will be treated as filed on the date on which the
District Court enters its order determining the amount of attorney fees and costs awarded.
¶19 Cattaneo shall notify this Court within 10 days of the District Court’s entry of its
order determining attorney fees and costs. Failure to provide such notification may result
in dismissal of this appeal.
¶20 The Clerk of this Court is directed to provide copies of this Order to all counsel of
record, to the Clerk of Court for Park County, and to the Honorable Brenda R. Gilbert,
Presiding.
DATED this 18th day of May, 2021.
/S/ LAURIE McKINNON
We Concur:
/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR
/S/ INGRID GUSTAFSON