10/18/2022
DA 22-0078
Case Number: DA 22-0078
IN THE SUPREME COURT OF THE STATE OF MONTANA
2022 MT 210N
IN RE THE MARRIAGE OF:
KELDAH ELIZABETH HEDSTROM,
Petitioner and Appellee,
v.
CODY CLAY PETERS,
Respondent and Appellant.
APPEAL FROM: District Court of the Sixth Judicial District,
In and For the County of Park, Cause No. DR-19-100
Honorable Brenda R. Gilbert, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jami Rebsom, Jami Rebsom Law Firm P.L.L.C., Livingston, Montana
For Appellee:
Rebecca R. Swandal, Swandal Law, PLLC, Livingston, Montana
Submitted on Briefs: August 3, 2022
Decided: October 18, 2022
Filed:
' 4,--6%--‘f
__________________________________________
Clerk
Justice Laurie McKinnon 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 Cody Clay Peters (Cody) appeals the Order Denying Motion to Suspend Child
Support entered January 28, 2022, in the Sixth Judicial District, Park County.
¶3 Cody and Keldah Elizabeth Hedstrom (Keldah) were married on August 28, 2016.
They have one child together, D.O.P. Their marriage was dissolved in 2021 and Cody was
ordered to pay child support beginning in July of 2021.
¶4 On November 10, 2021, Cody received a ten year sentence to the Department of
Corrections, with nine years suspended, for his assault in August of 2020 of Keldah.
D.O.P. witnessed the assault. Cody filed a Motion to Suspend Child Support on
November 15, 2021, arguing his child support should be suspended because of his
incarceration. Keldah filed a response objecting to any suspension of child support.
Following a hearing, the District Court denied Cody’s request. Cody appeals and Keldah
has requested reimbursement of attorney fees and costs incurred in responding to this
appeal. We affirm the District Court’s denial of Cody’s request to suspend child support.
Additionally, we remand these proceedings to the District Court for a determination of
reasonable costs and fees to be awarded to Keldah for having to respond to this appeal.
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¶5 Cody argues that Admin. R. M. 37.62.106 supports his argument that child support
should be suspended during his incarceration. Specifically, Cody argues that because he
is incarcerated for more than 180 days A.R.M. 37.62.106(6)(b) provides that income may
not be imputed to him. Aside from citing the A.R.M., Cody offers no other legal support
for his request.
¶6 The A.R.M. to which Cody refers, however, addresses the imputing of income for
purposes of establishing child support and not the suspension of already established court
ordered child support payments. This Court has well-established caselaw holding that a
child support obligation will not be suspended for reasons of incarceration. In Mooney, we
held:
Criminal conduct of any nature cannot excuse the obligation to pay support.
We see no reason to offer criminals a reprieve from their child support
obligations when we would not do the same for an obligor who voluntarily
walks away from his job. Unlike the obligor who is unemployed or faced
with a reduction in pay through no fault of his own, the incarcerated person
has control over his actions and should be held to the consequences. A
person who has a support obligation should not profit from his criminal
conduct, particularly at his children’s expense. . . . Father should not be able
to escape his financial obligation to his children simply because his misdeeds
have placed him behind bars. The meter should continue to run.
Accordingly, we hold the father’s support obligation continues to accrue
during his incarceration.
Mooney v. Brennan, 257 Mont. 197, 201, 848 P.2d 1020, 1023 (1992).
¶7 As pointed out by Keldah, Cody is not requesting a modification of child support;
rather, Cody requests his obligation be suspended—which is a request not supported by
Montana law. The District Court correctly held Cody’s child support obligation continues
to accrue during his period of incarceration.
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¶8 Pursuant to M. R. App. P. 19, Keldah requests reimbursement of attorney fees and
costs for having to respond to Cody’s appeal. Rule 19(5) allows this Court to “award
sanctions to the prevailing party in an appeal . . . determined to be frivolous, vexatious,
filed for purposes of harassment or delay, or taken without substantial or reasonable
grounds.” Here, we have little difficulty concluding there is no reasonable basis for Cody’s
appeal. Our precedent is clear and Cody has failed to support his argument with any legal
authority outside of an inapplicable administrative rule. Pursuant to Rule 19(5), sanctions
may include “costs, attorney fees, or such other monetary or non-monetary penalty as the
Supreme Court deems proper under the circumstances.”
¶9 Accordingly, as a sanction for bringing an appeal with no reasonable basis in
Montana law, we remand to the District Court for a determination of reasonable attorney
fees and costs to reimburse Keldah for having to respond to this appeal.
¶10 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.
¶11 Affirmed, and remanded to the District Court for a determination of attorney fees
and costs.
/S/ LAURIE McKINNON
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We Concur:
/S/ INGRID GUSTAFSON
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR
/S/ JIM RICE
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