30. 32-333
I N THE SUPREME COURT O F THE STATE O F MONTANA
1982
P H I L I P J . MILANOVICH,
Plain-tiff,
-vs-
ROSEMARY J . MILANOVICI3,
Defendant.
O R I G I N A L PROCEEDING:
Counsel of Record:
For Plaintiff:
Hull & Sherlock; Jeffrey M. Sherlock, Helena,
Xontana
For Defendant:
Deirdre Caughlan, Butte, Nontana
.-- -
Submitted: October 13, 19132
Decided: December 2, 1982
Filed:
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Philip J. Milanovich (husband) filed a petition for
writ of review to vacate a contempt order issued by the
District Court of the Second Judicial District, Silver Bow
County. Originally, husband attempted to appeal the contempt
order in Milanovich v. Milanovich (1982), - P4ont. 1 -
P.2d - , 39 St.Rep. 1554. His attempt was rejected, because
no appeal can be taken from an order in contempt. Contempt
orders can, however, be considered hy this Court on a writ
of review. Section 3-1-523, MCA.
Sufficient facts to decide this case were set forth in
the earlier Milanovich case cited above, and need not be
restated here.
The District Court found that husband was guilty of
contempt of court for refusing to allow wife her court
ordered visitation for Christmas of 1979 and the summer of
1981. Husband was fined $500 and sentenced to five days in
jail. The jail sentence was suspended as l ~ n g husband
as
satisfactorily complied with the court's orders.
Husband contends the District Court erred in holding
him in contempt of court for several reasons. First, husband
states that it was error to hold him in contempt of court
for denial of visitation for Christmas of 1979 because wife
did not mention husband's refusal to allow Christmas visitation
in the affidavit she presented to the court. We must agree
with the husband. As stated in section 3-1-512, MCA, "When the
contempt is not committed in the immediate view and presence
of the court or judge at chambers, an affidavit of the facts
constituting the contempt ... shall be presented to the
court or judge." Since wife failed to include in her affidavit
-2-
facts constituting contempt in regard to visitation for
Christmas of 1979, the court had no jurisdiction to address
that incident.
In addition, husband states that any action to hold him
in contempt for denial of visitation for Christmas of 1979
is barred by the statute of limitations. Again, we must
agree. A person found guilty of contempt commits a misdemeanor,
as exemplified by section 3-1-519, MCA, which imposes up to
a $500 fine and/or a five day jail sentence upon a person
found guilty of contempt. Section 45-1-205(2)(b) provides,
"A prosecution for a misdemeanor must be commenced within 1
year after it is ccmmitted." Therefore, prosecution for
denial of visitation for Christmas of 1979 shculd have been
commenced within one year. Since wife did not make her
motion asking the District Court to find husband in contempt
until August 18, 1981, the District Court is clearly without
jurisdiction to hold husband in contempt for denial of
visitation for Christmas of 1979.
Husband also contends that the District Court erred in
holding him in contempt for denial of visitation for the
summer of 1981. We disagree. Our review of the contempt
order is limited to examining the record to see whether the
District Court acted within its jurisdiction and whether the
evidence supports the finding of contempt. Schneider v.
Ostwald (1980), - Mont. , 617 P.2d 1293, 37 St.Rep.
1728; In the Matter of the Contempt of Gravely and Hammerbacker
(19801, Mont. , 614 P.2d 1033, 37 St.Rep. 1261.
After a review of the record, we find that there is
substantial evidence to support the District Court's finding
of contempt. In the District Court's order of October 4,
1979, wife was given the right to visitation for the month
of July each sununer. By an agreement entered in February of
1981, the parties modified visitation for the summer of 1381
so that wife waived her July 1981 visitation in return for
being able to accompany husband and the children on a two
week summer vacation to Canada. The vacation was to begin
on July 1, 1981. At the contempt hearing, wife testified
that husband notified her one week before the intended
summer vacation that he had changed the plans for the vacation.
Husband then left on vacation early and failed to leave an
address where wife could meet husband and the children. By
so doing, husband violated the February 1981 agreement and
the District Court's order granting wife visitation for the
month of July. By disobeying a lawful order of the District
Court, husband committed an act of contempt, and could
rightly be punished therefor. Sections 3-1-501 (1)(e) and
3-1-519, MCA.
Husband's testimony regarding summer vistitation differs.
He claims wife was informed of the change in plans and the
new itinerary several months in advance. He further testified
that wife called him one week prior to their departure and
stated that the vacation plans were unacceptable. She
therefore wanted to change her time for visitation to August.
Where conflicting evidence exists, if there is competent and
substantial evidence to support the findings, the reviewing
court will not reverse merely because it might have drawn
from the evidence a conclusion at variance with that reached
by the trial judge. 17 C.J.S. Contempt § 124(4). The credibility
of the witnesses heard by a district court in a contempt proceeding
and the weight to be given to their testimony are matters
for the District Court's determination, and are not reviewable
by the Supreme Court. State ex rel. Zosel v. District Court
(1919), 56 Mont. 578, 185 P. 1112.
Although the District Court erred by finding husband in
contempt for denial of visitation for Christmas of 1979, we
hold this to be harmless error. The District Court found
that husband was guilty of contempt for violating the court's
order of October 4, 1979. Husband's denial of visitation
for the summer of 1981 is in itself a violation of that
order, and exhibits sufficient cause for the District Court
to hold him in contempt of court.
The record in this case reflects a certain degree of
recalcitrance by the husband toward the orders of the District
Court on visitation. In such case, the best remedy to
insure respect for the law and the orderly progress of
relations between family members split by dissolution is to
give effect to the contempt powers of the District Court.
We follow that course here.
Affirmed.
We Concur:
Chief Justice \