No. 92-605
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
IN RE THE MARRIAGE OF
PAMELA C. PRESCOTT,
Petitioner and Respondent,
and
GREGORY W. PRESCOTT,
c
Respondent and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John S. Henson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Christopher Daly, Attorney at Law, Missoula, Montana
For Respondent:
Sydney E. McKenna, Patterson, Marsillo, Tornabene,
Schuyler & McKenna, Missoula, Montana
Submitted on Briefs: March 18, 1993
Decided: July 8, 1 9 9 3
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Appellant Gregory W. Prescott appeals from an order of the
Fourth Judicial District Court, Kissoula County, denying his
request for a modification of the dissolution decree dated June 13,
1988. Gregory also appeals the District Court's order finding him
in contempt for failing to pay child support, maintenance, and
taxes. The District Court sentenced Gregory to jail for 15 days to
be suspended for six months to allow him to pay back taxes.
We affirm.
The parties raise four issues for this Court's consideration.
1. Did the District Court err in denying Gregory the right
to counsel during the contempt proceedings?
2. Did the District Court err in not staying the contempt
proceedings until the resolution of a pending criminal charge in
Oregon?
3. Did the District Court err when it offered to be sworn
and testify on the record during the contempt proceedings?
4. Should this Court award costs and attorney fees to
respondent Pamela Prescott?
This action arises out of a decree of dissolution. The
relevant portions of the decree provided that Gregory pay $400 per
month per child in support and that he pay $800 per month in
maintenance. Gregory also agreed to pay all current and back state
and federal taxes that the parties owed. Since the entry of the
divorce decree, Gregory has not made any maintenance payments and
2
his record in child support payments is poor. To date, Gregory has
failed to meet his obligations, and at the time of the hearing owed
in excess of $70,000 in back maintenance and child support.
Because Gregory did not pay the parties' tax liabilities, the IRS
has withheld three years of tax refunds from Pamela.
Pamela and the parties ' four children have suffered
considerably because of Gregory's failure to make payments. The
family became dependent upon family and friends to meet their daily
needs. During the separation, Pamela attended a Displaced
Homemaker Program and worked as a maid in Missoula. The family
qualified for food stamps and other government assistance.
Pamela's relatives purchased food for the family. In 1987, the
teachers at the children's grade school voted the children the
"most needy," which allowed the family to receive free winter
clothing.
Gregory's failure to pay child support and maintenance forced
the children to help Pamela support the family. The oldest child,
who has reached the age of majority, quit college and went to work
at a local fast food restaurant. The second child, a high school
student, worked part-time at a restaurant. The third child did his
part by doing odd jobs after school.
After the dissolution was final, the family moved to LaPine,
Oregon, where Pamela initially cleaned houses to get by. The
family lived in two borrowed travel trailers parked at Pamela's
sister's house. With the help of an aunt who contributed $300 a
3
month for a year, the family moved into a rental home. After the
dissolution, Pamela sold a parcel of real estate, but the income
from the sale is only $250 a month. Pamela and the children still
depend on relatives and friends for food, clothing, and money.
Gregory has bachelor of science degrees in geology and
mathematics. During the separation and after the dissolution,
Gregory voluntarily underemployed himself so that he could work on
his invention. The record shows that Gregory can earn a good
income as a geologist, having earned $70,000 in 1986. He currently
works as Chief Geologist for the Colville Confederated Tribes in
Nespelm, Washington, and earns $24,000 a year.
In March 1989, the Washington State Department of Social and
Health Services held a hearing and found Gregory $20,000 in arrears
for back child support and maintenance. In April 1992, the State
of Oregon filed felony charges against Gregory for criminal neglect
of the children, Trial on those charges was scheduled for December
1992.
On April 30, 1992, Gregory filed a motion to modify child
support. On July 31, 1992, Gregory also filed a motion to amend
the original dissolution decree. On September 16, 1992, Pamela
filed a motion to hold Gregory in contempt for violating the
court's order and decree of dissolution dated June 13, 1988. On
September 29, 1992, the court conducted a show cause hearing and
considered Gregory's motions. Gregory appeared pro se, and Pamela
appeared with counsel.
4
On October 8, 1992, the court issued its order. By agreement
of the parties, the court lowered child support from $400 a month
per child to $300 a month per child, which is within the mandatory
SRS Guidelines. The court denied Gregory's motion to amend the
decree of June 13, 1988. The court found Gregory in contempt for
violating the June 13, 1988, order and decree and sentenced him to
15 days in jail, which the court suspended for six months. During
the suspension, Gregory had the opportunity to pay off the back
taxes owed and purge the contempt order. Gregory appeals from this
order.
MOTION TO DISMISS THE APPEAL
On February 18, 1993, Pamela filed a motion with this Court to
dismiss Gregory's appeal of the lower court's contempt order
pursuant to 5 3-1-523, MCA. Both parties addressed the motion in
their appellate briefs.
We have stated that although contempt orders by the district
court are final and usually not reviewable by this Court except
through writ of certiorari, as required by 5 3-1-523, MCA, we have
made an exception for family law cases. In re Marriage of Boharski
(Mont. 1993)' 847 P.2d 709, 713, 50 St. Rep. 161, 163. We limit
our review of the contempt order to examining the record to see
whether the district court acted within its jurisdiction and
whether the evidence supports the contempt. In re Marriage of
Sullivan (Mont. l993), 50 St. Rep. 648, 651. Therefore, we deny
the motion to dismiss the appeal.
5
Did the District Court err in denying appellant the right to
counsel during the contempt proceedings?
At the beginning of the contempt proceedings, Gregory
requested the District Court to appoint counsel, which was denied.
Gregory contends that the contempt in this case is criminal in
nature and that the District Court violated his constitutional
right by not appointing counsel at public expense. Because Gregory
works as a geologist earning $24,000 a year, his argument that he
is indigent is without merit.
A contempt proceeding may be quasi-criminal in nature.
Because this case involved a contempt violation outside the
presence of the court, it is considered a constructive contempt,
and therefore, due process is required. Lilienthal v. District
Court (1982), 200 Mont. 236, 242, 650 P.2d 779, 782. Constructive
contempt requires the following due precess requirements:
"[Tlhat one charged with contempt of court be advised of
the charges against him, have a reasonable opportunity to
meet them by way of defense or explanation, have the
right to be represented by counsel, and have a chance to
testify and call other witnesses in his behalf, either by
way of defense or explanation."
The right to counsel however, has generally been
held to mean that one charged with contempt of court is
entitled to a "reasonable opportunity to employ counsel
in contempt proceedings.#* [Citations omitted.]
Marks v. First Judicial District (1989), 239 Mont. 428, 433-34, 781
P.2d 249, 252 (quoting Lilienthal, 650 P.2d at 782).
In this instance, we concern ourselves with whether Gregory
had a "reasonable opportunity to employ counsel" prior to the
contempt proceedings. The court- issued its order to show cause on
September 17, 1992. Gregory was served by certified mail on
September 22, 1992. The show cause hearing occurred on
September 29, 1992. Gregory had seven days in which to obtain
counsel.
We have discussed this issue at length in Marks and
Lilienthal. In Marks, this Court found that the defendant had a
reasonable opportunity when he had over a week to obtain counsel.
Marks, 781 P.2d at 252. We held that five days' notice was a
reasonable opportunity to obtain counsel for contempt proceedings.
Marks, 781 P.2d at 252 (citing Ungar v. Sarafite (1964), 376 U.S.
575, 590). The United States Supreme Court considered that a four
day notice provided reasonable opportunity to obtain counsel.
Nilva v. United States (1957), 352 U.S. 385, 395. We have held,
however, that when a defendant only had one working day notice he
was denied an adequate opportunity to obtain counsel. Liiienthal,
650 P.2d at 782. Therefore, we hold that seven dayss notice of the
contempt hearing allowed a reasonable opportunity for Gregory to
obtain counsel.
11.
Did the District Court err in not staying the contempt
proceedings until the resolution of a pending criminal charge in
Oregon?
7
Gregory filed his motions to modify child custody and amend
the decree and requested a hearing. After the court set the
hearing, Pamela then filed her motion for the court to issue a show
cause order. The court held the hearing on the same day for both
parties' motions. The court granted one of Gregory's motions to
modify child custody and denied his motion to amend the decree.
The court then proceeded to the show cause hearing. The following
exchange took place between Gregory and the Court.
MR. PRESCOTT: Well, I an? not putting conditions on you,
Your Honor; I am just saying that I am willing to accept
service of that and forego any complaints about
timeliness, providing that its heard at the end --
THE COURT: You are willing to proceed, then, on the
Order to Show Cause?
MR. PRESCOTT: Yes. Yes, your Honor.
As the transcript shows, Gregory consented to proceed with the
show cause hearing. He now complains that the court erred by not
staying the proceedings until criminal charges pending against him
in the State of Oregon were resolved. Gregory never made a motion
to stay the proceedings but argues that the court should have acted
sua sponte to suspend the proceedings.
This Court has consistently held that it will not normally
consider objections which parties present for the first time on
appeal. City of Billings v. Skurdal (1986), 224 Mont. 84, 88, 730
P.2d 371, 373, cert. denied, 481 U.S. 1020 (1387). Here, Gregory did
not object to the District Court proceeding, and in fact, actually
agreed to its continuation. Therefore, we hold that the District
Court did not err in not staying the contempt proceedings until the
resolution of a pending criminal action in Oregon.
111.
Did the District Court err when it offered to be sworn and
testify on the record during the contempt proceedings?
During the contempt hearing, the District Court offered to
testify regarding whether Gregory agreed to the original
dissolution settlement agreement in court as the record reflects,
Gregory argued during the hearing that he agreed he would only try
to make child support payments. In its findings, the District
Court noted its willingness to testify regarding the parties'
understanding relating to the settlement agreement. Gregory now
contends that the District Court's offer to testify showed the
court's bias in this matter and that the court's denial of
Gregory's motion to anend the dissolution decree should be reversed
and remanded.
This Court confronted a similar question in State ex rel.
Moser v District Court (1944), 116 Mont. 305, 151 P.2d 1002.
. In
w,a pro se litigant faced the district court during contempt
proceedings. The judge presided over his court, testified in
defense of his acts relating to the contempt, and ruled on
objections made to his testimony and exhibits. Moser, 151 P.2d at
1005. We held that a trial judge generally is not a competent
witness qualified to testify for or against either party in an
9
action or proceeding pending in his court and tried before him.
Moser, 151 P.2d 1007. However, we noted that this rule is not
applicable to direct contempt proceedings, yet probably would be
pertinent in cases of constructive contempt. w , 151 P.2d
1007-08.
Maser is distinguishable from the present case. The District
Court did not take the stand and testify on its behalf. We hold
that the District Court did not err when it offered to testify
dxuring the conternpt proceedings. We deny costs and attorney fees.
We affirm.
We concur:
Justice Terry N. Trieweiler specially concurring.
I concur with the result of the majority opinion. However, I
do not concur with all that is said therein.
Specifically, I disagree with that part of the majority
opinion which either holds or implies that an indigent person cited
for contempt has only the right to "employ counsel," and no right
to court-appointed counsel.
To grant a right to counsel to a person cited for contempt,
but to deny court-appointed counsel for someone who cannot
otherwise afford to employ counsel, is to render the right
meaningless. I agree with the Fifth Circuit Court of Appeals
decision in Ridpay v. Baker (5th Cir. 1983)' 720 F.2d 1409, 1413-15,
where it stated that:
The Constitution's fourteenth amendment guarantee of due
process incorporates the sixth amendment assurance that
the accused in a criminal prosecution has the right to
counsel. This imposes a duty on the state to provide
counsel to a person accused who, because of indigency,
.
cannot afford a lawyer. Argersiiger v. Hamlin , 407 U. S 25,
92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); In re Gault, 387 U.S.
1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); Gideon v .
Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799
(1963). This right extends to every case in which the
litigant may be deprived of his personal liberty if he
.
loses. Lassiter v. Department of Social Services, 452 U.s 18, 25,
101 S.Ct. 2153, 2158-59, 68 L.Ed.2d 640, 648 (1981).
The right to counsel turns on whether deprivation of
liberty may result from a proceeding, not upon its
characterization as "criminal1'or "civil.". ..
The state's argument that the contemnor imprisoned
only for civil contempt has, in the aphoristic phrase,
"the keys of his prison in his own pocket," ignores two
salient facts: that the keys are available only to one
who has enough money to pay the delinquent child support
and that, meanwhile, the defendant, whatever the label on
his cell, is confined. If the court errs in its
determination that the defendant has the means to comply
with the court's order, the confinement may be
indefinite. Such an error is more likely to occur if the
defendant is denied counsel. Viewed in this light, a
civil contempt proceeding may pose an even greater threat
to liberty than a proceeding labeled Mcriminal,'iwith a
correspondingly greater need for counsel.
If the parent is indeed indigent the state may
obviate the need for counsel by announcing that
imprisonment will not result from the proceeding. Scott v
.
Illinois, 440 U.S. 367, 99 s.ct. 1158, 59 L . E ~ . Z ~
383
(1979). If it holds the threat of jail over the
defendant, however, it must accord the defendant facing
it due process, including the right to counsel,
... If, however, imprisonment, by whatever process
it is adjudicated, is the possible result of a
proceeding, the defendant who is threatened with jail has
the right to a lawyer.
The Ninth Circuit Court of Appeals has also recognized that
due process requires that court-appointed counsel be provided to an
indigent who is cited for contempt. See Henkel v. Bradshaw (9th Cir.
Therefore, I disagree with that part of the majority opinion
which suggests that appellant had only the right to "employ
counsel" and no right to court-appointed counsel, if he had
established his indigency.
However, I concur with the result of the majority opinion
because in this case the evidence established that appellant was
not indigent. At the time of trial, he was being paid at the net
rate of $24,000 per year. Based on that amount of income, he did
not meet the criteria for indigency, and was not entitled to
court-appointed counsel.
For these reasons, I specially concur with the majority
opinion.
July 8, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
CHRISTOPHER DALY
Attorney at Law
101 E. Broadway, Suite 200
Missoula, MT 59802
SYDNEY E. McKENNA
Patterson, Marsillo, Tomabene, Schuyler & McKenna
103 South 5th East
Missoula, MT 59801
ED SMITH
CLERK OF TKE SUPREME COURT
STATE OF MONTANA
I I
BY: K y
Deputy,