No. 14799
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979
IN RE THE MARRIAGE OF
THERESA C. O'NEILL,
Petitioner and Respondent,
-vs-
PAT A. O'NEILL,
Respondent and Appellant.
Appeal from: District Court of the Nineteenth Judicial District,
Honorable Robert M. Holter, Judge presiding.
Counsel of Record:
For Appellant:
Donald L. Shaffer, Libby, Montana
For Respondent:
Fennessy, Crocker, Harman and Bostock, Libby, Montana
Submitted on briefs: October 4, 1979
Filed: NOV "t - .!
!
t - -
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the
Court.
A father appeals from a judgment of the Lincoln County
District Court holding him in contempt of court for failure to
pay child support.
Pat and Theresa O'Neill were granted a dissolution of
marriage on January 14, 1977. On January 6, 1977, the parties
had entered into a child custody and property settlement agree-
ment whereby the mother was granted custody of the minor children
and the father was required to pay $100 per month per child as sup-
port which was incorporated in the decree.
Pursuant to a show cause hearing held on November 16, 1978,
the husband was found in contempt of court for failure to pay child
support. He was sentenced to five days in Lincoln County Jail and
was required to pay the accrued child support. The five day sen-
tence, according to the District Court's order, was suspended if
the husband paid the accrued child support, continued making such
payments in the future, and maintained major medical and dental
insurance for the benefit of the minor children. The father appeals
from this judgment and order.
Neither party addresses the controlling issue in this appeal,
viz. Is a contempt order appealable?
Section 3-1-523, MCA, states in pertinent part:
"The judgment and orders of the court or judge
made in cases of contempt are final and conclu-
sive. There is no appeal, but the action of a
district court or judge can be reviewed on a
writ of certiorari by the supreme court or a
judge thereof . . ."
The statutes governing contempt of court are found at
sections 3-1-501, et seq., MCA. These statutes provide for two
kinds of procedure depending upon whether the contempt was committed
in the presence of the court or not. Sections 3-1-511 and 512, MCA.
It must be noted, however, that these two sections make the dis-
tinction between the two types of contempt merely on procedural
grounds. Section 3-1-523 makes no distinction between the two
types of contempt.
In State ex rel. Rankin v District Court (1920), 58
.
a36
Mont. m, 191 P. 772, a case which involved contempt committed
in the presence of the court, this Court said " . . . the convic-
ted contemnor, if he chooses, may submit it [the record] to the
appellate tribunal for review by appeal from the final judgment,
or by other appropriate method. In this state he may do this
only by invoking the writ of certiorari . , ." 58 Mont. at 289.
Subsequently, this Court cited the above language from Rankin
with approval in Ex parte Burns (1928), 83 Mont, 200, 208, 271
P. 439. Burns involved a contempt citation which was issued when
the relator would not relinquish custody of a minor daughter pur-
suant to a valid court order.
In Hanson v. Hanson (1928), 83 Mont. 428, 272 P. 543, the
District Court held a hearing concerning the plaintiff's alleged
contempt in failing to comply with the terms of a decree of divorce.
The District Court dismissed the contempt proceeding and the defen-
dant appealed, In a per curiam opinion this Court merely cited
the relevant statute (now section 3-1-523, MCA) and said, "nothing
remains for us to do but to dismiss the attempted appeal, and it
is so ordered." 83 Mont. at 429.
In the Rankin case, supra, this Court said:
"The power to inflict punishment in either
[indirect or direct contempt] is inherent in the
courts .. , The power is designated as 'inherent'
because it is necessary to preserve the dignity
of the judicial department of the government,
and . . . must be exercised to its fullest extent
... to enforce ... rights after they have
been determined." 58 Mont. at 288
This inherent power must be exercised by the courts with
the knowledge that it will not be upset on appeal. This is neces-
sary to preserve the dignity and authority of the court.
Appeal dismissed.
Chief Justice
We concur: ,
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