No. 94-476
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
IN RE THE MARRIAGE OF
TERRI ANN BOYER,
Petitioner and Appellant,
and
GARY GREG BOYER,
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable James E. Purcell, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Leonard J. Haxby, Christine D. Somers, Butte,
Montana
For Respondent:
Respondent did not appear on appeal.
Submitted on Briefs: June 29, 1995
Decided: December 19, 1995
Filed:
Justice William E. Hunt, Sr. delivered the Opinion of the Court.
Appellant Terri Boyer (Terri) appeals an order of the Second
Judicial District Court, Silver Bow County, which granted the
motion of Respondent Gary Boyer (Gary) to modify the parties'
divorce decree, and denied Terri's motion to find Gary in contempt
of court for failing to abide by the dictates of the decree.
Affirmed in part, reversed in part, and remanded.
ISSUES
The following dispositive issues were raised on appeal:
1. Did the District Court err by modifying the custody of the
parties' two younger children?
2. Did the District Court err by awarding Gary liberal
visitation or by permitting him to act as the children's day-care
provider?
3. Did the District Court err by refusing to hold Gary in
contempt?
4. Did the District Court err by refusing to allow interest
to be added to a $1,438.82 debt owed to Terri by Gary?
5. Did the District Court err by ordering Gary to repay the
$1,438.82 debt at a rate equal to $7.50 per month?
FACTS
Terri and Gary were married in 1978 and divorced in 1992.
They have two minor daughters, Natoshia and Tristan, and one minor
son, Gage. The parties' January, 1992 divorce decree gave sole
custody of all the children to Terri, and gave Gary reasonable
visitation. The decree provided that Gary would set up a $1,000
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trust fund for each child using funds from the estate of his
father. It further provided that Gary was to sell the family home
and use the proceeds to pay off the parties' medical and credit
card debts.
In February, 1992, the parties stipulated to the amendment of
the final decree. By that stipulation, Gary was granted unlimited
visitation. The stipulation also set out the specific medical and
credit card debts which were to be paid by Gary once the house was
sold.
On June 1, 1993, Gary moved the District Court to modify the
divorce decree. By his motion, Gary contended that his older
daughter, Natoshia, resided with him and he consequently requested
a change in the status of her custody. Gary's motion explicitly
limited the requested custody change to Natoshia only, and
requested that Terri retain custody of Tristan and Gage.
On the same day, Terri moved the District Court to hold Gary
in contempt for failing to sell the family home and pay off the
couple's debts, and for failing to set up the children's trust
funds, as ordered by the decree. Gary responded that the decree
did not specify a deadline for either the sale of the house or the
establishment of the trust funds, and that therefore he was not in
contempt.
The District Court held hearings on both motions on June 30
and July 20, 1993. It appointed a Special Master to investigate
and ordered him to submit his findings and conclusions to the
District Court.
3
On April 11, 1994, the District Court issued its Findings of
Fact, Conclusions of Law and Order which adopted the Special
Master's proposed findings and conclusions. It also incorporated
modifications to the Special Master's findings and conclusions
which were requested by Gary through a "Notice of Respondent's
Request to Adopt the Special Master's Findings of Fact, Conclusions
of Law and Order with Modifications."
1n its order, the District Court specifically noted Terri's
failure to object to the Special Master's proposed findings or to
Gary's requested modifications. However, the Special Master's
proposed findings and Gary's "Notice of Respondent's Request" to
modify the same were filed with the District Court on April 15,
1994, four days after the District Court had entered its final
order in the matter.
Terri appeals from the District Court's order. Gary did not
appear in this appeal.
I
Did the District Court err by modifying the custody of the
parties' two younger children?
Terri first contends that the District Court erred by changing
the custody of the two younger children from sole to joint. She
claims that neither party formally moved for such a change and that
the District Court lacked jurisdiction to alter the existing
arrangements.
Section 40-4-219, MCA, provides:
The court may in its discretion modify a prior custody
decree if it finds, upon the basis of facts that have
4
arisen since the prior decree or that were unknown to the
court at the time of entry of the prior decree, that a
change has occurred in the circumstances of the child or
the child's custodian and that the modification is
necessary to the serve the best interest of the child and
if it further finds that:
(a) the custodian agrees to the modification;
(b) the child has been integrated into the family of
the petitioner with consent of the custodian;
(c) the child's present environment endangers
seriously the child's physical, mental, moral, or
emotional health and that the harm likely to be caused by
a change in environment is outweighed by its advantages
to the child;
(d) the child is 14 years of age or older and
desires the modification;
(e) the custodian willfully and consistently:
(i) refuses to allow the child to have any
contact with the noncustodial parent; or
(ii) attempts to frustrate or deny the
noncustodial parent's exercise of visitation rights;
(f) the custodial parent has changed or intends to
change the child's residence to another state.
In order to change an existing custody arrangement, the
District Court must find changed circumstances as well as one or
more of the factors listed in 5 40-4-219(a)-(f), MCA. Such
findings are a jurisdictional prerequisite for a change in custody
and, without them, a district court may not modify a prior award of
sole custody. In re Marriage of Johnson (1994), 266 Mont. 158, 879
P.2d 689; In re Marriage of Anderson (1989), 240 Mont. 316, 783
P.2d l.372; In re Marriage of Stephenson (1988), 230 Mont. 439, 750
P.2d 1073.
Terri apparently agreed to change the custody of Natoshia from
sole to joint, but the record does not reflect that she agreed to
such a change regarding Tristan and Gage. While the order in this
case purports to change the custody of all the children from sole
to joint, the District Court did not make the sort of findings
5
which § 40-4-219, MCA, mandates. Without such findings, the court
had no jurisdiction to modify the existing custody arrangements.
Furthermore, neither party by their pleadings raised the
custody of Tristan and Gage as an issue. On the contrary, in his
motion to change the custody of Natoshia, Gary specifically
requested that Terri retain custody of both Tristan and Gage. A
judgment is conclusive only so far as it determines matters which
by the pleadings are put at issue. In re Marriage of DiPasquale
(1986), 220 Mont. 497, 499, 716 P.2d 223, 225.
Because the issue of the custody of Tristan and Gage was not
properly before the District Court, and because it failed to comply
with the dictates of § 40-4-219, MCA, we hold that the District
Court lacked jurisdiction to change the existing custody
arrangements regarding the two younger children. Under the
original divorce decree and later stipulation, Terri retains sole
custody of Tristan and Gage, and Gary has the right to visitation.
II
Did the District Court err by allowing Gary liberal visitation
or by permitting him to act as the children's day-care provider?
Terri next contends that the District Court erred by granting
Gary liberal visitation and by allowing him to act as the
children's day-care provider when he is not working.
The original divorce decree granted Gary "reasonable" rights
to visitation, and the stipulation granted him an "unlimited" right
to visit the children in their home in order to allow him to visit
them "to the fullest extent possible." While the stipulation
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contemplated long-distance visitation, as Terri and the children
were then planning a move to California, nothing in it indicates
that the visitation arrangements were to be different should Terri
and the children return to Montana, as in fact they have.
Therefore, by ordering that Gary is to have liberal visitation, the
District Court was not modifying visitation, but merely clarifying
and confirming that Gary is entitled to liberal visitation under
the original terms of the stipulation.
Nevertheless, Terri contends that Gary should not enjoy
liberal visitation with the younger children or be allowed to act
as their day-care provider. She contends that he does not
supervise them properly or feed them nutritiously, and notes that
the two daughters do not get along. At the hearing, she also
alleged sexual improprieties involving Gary and the children, which
he emphatically denied.
The district court has broad power to address all problems
concerning custody and visitation.
The standard of review for custody and visitation is
whether substantial credible evidence supports the
district court's judgment. We will overturn a court's
custody or visitation decision only when the court's
findings and conclusions clearly demonstrate an abuse of
discretion.
In re Marriage of Hunt (1994), 264 Mont. 159, 164, 870 P.2d 720,
723.
Further, this Court may not substitute its judgment for that
of a district court in making a finding based to a large extent on
credibility and weight of the evidence. Woolf v. Evans (1994), 264
Mont. 430, 872 P.2d 777. "[T]he trial court, having had the
7
opportunity to observe the demeanor and judge the credibility of
the witnesses, is in a better position to resolve conflicting
factual testimony than is this Court. In re Marriage of Gerhart
(1990), 245 Mont. 27'9, 800 P.2d 698." In re Marriage of Newton
(1992), 255 Mont. 463, 466, 844 P.2d 47, 49.
All the allegations Terri makes on appeal were properly made
before the District Court, who heard testimony from both parties as
well as several other witnesses. It then determined the
credibility of the parties and witnesses, as well as the weight to
be given to their testimony. The District Court found Gary to be
an appropriate day-care provider for the children, and substantial
credible evidence supports this finding, as well as the finding
that Gary should receive liberal visitation. We will not
substitute our judgment for that of the District Court, which had
the opportunity to evaluate the evidence personally. Accordingly,
the order of the District Court is affirmed regarding these issues.
III
Did the District Court err by refusing to hold Gary in
contempt?
The original divorce decree provided that Gary would set up a
trust fund of $1,000 for each child, using funds from the estate of
his father. When he failed to establish the trust funds, Terri
moved to have him held in contempt. The District Court denied her
motion and declined to hold Gary in contempt. Terri claims this
denial was error.
8
Unlike contempt orders in other types of cases, which are
reviewable only by writ of certiorari, contempt orders in family
law cases may be appealed. In re Marriage of Dreesbach (1994), 265
Mont. 216, 875 P.2d 1018. However, this Court's review is limited
to whether the district court acted within its jurisdiction and
whether the evidence supports its finding. Dreesbach, 675 P.2d at
1023; In re Marriage of Sullivan (1993), 258 Mont. 531, 539-40, 853
P.2d 1194, 1200.
Terri does not assert that the District Court lacked
jurisdiction. Instead, she attacks on evidentiary grounds its
refusal to hold Gary in contempt. The decree specified that the
trust funds would be funded from the estate of Gary's father. Gary
admitted that he had not set up the trust funds as required, but
would do so upon the sale of the family home. He therefore
admitted that he was in violation of the decree, and the District
Court could justifiably have found him to be in contempt. However,
the court instead ordered him to set up the trust funds within 90
days of the date of the order. It is the responsibility of the
District Court to enforce its own orders, and the court has the
discretion to grant extensions if it deems proper. Therefore, the
District Court acted within its authority in denying Terri's
motion. Accordingly, the District Court's refusal to hold Gary in
contempt is affirmed.
IV
Did the District Court err by refusing to allow interest to be
added to a $1,438.82 debt owed to Terri by Gary?
9
The original divorce decree provided that Gary would pay
certain medical and credit card debts once the family home was
sold. The stipulation set out specifically what amounts were owed,
and to whom. Since Gary did not sell the house or pay the debts,
Terri was forced to make partial payments to several parties in
order to preserve her good credit history. Terri paid a total of
$1,438.82 towards debts which were Gary's responsibility pursuant
to the decree. The District Court found that Gary did in fact owe
this amount to Terri, but concluded that she, as a matter of law,
was not entitled to receive interest since she had made the
payments voluntarily.
We find this conclusion to be erroneous. Section 27-1-211,
MCA, provides:
Every person who is entitled to recover damages certain
or capable of being made certain by calculation and the
right to recover which is vested in him upon a particular
day is entitled also to recover interest thereon from
that day except during such time as the debtor is
prevented by law or by the act of the creditor from
paying the debt.
Gary was required to pay certain debts on behalf of Terri, which he
did not pay. Because of his non-payment, Terri risked damaging her
credit rating and her ability to obtain continuing services from
certain doctors. In order to prevent such a result, Terri paid
part of the debts herself. Therefore, Gary now has an obligation
to reimburse her, which he does not dispute.
Gary owes Terri damages in an amount which can be and has been
determined by calculation. She is therefore entitled to interest
pursuant to § 27-l-211, MCA, from the date that her right to
10
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recover vested. Her right to recover vested on the date she paid
each debt and, in so doing, assumed the lender's right to be
repaid.
The fact that Terri paid part of the debts voluntarily cannot
change this result. To clarify, her payments were not wholly
voluntary; Terri felt compelled to pay in order to preserve her
relationships with the doctors and creditors. In any case, § 27-1-
211, MCA, extends to all parties who are entitled to recover
damages, irrespective of how the damages were incurred.
Pursuant to § 27-l-211, MCA, we hold that Terri is entitled to
interest on the debt owed to her, beginning on that date or dates
that her right to be repaid vested. Accordingly, we reverse and
remand this issue to the District Court for a factual determination
of when Terri's right to collect interest began.
V
Did the District Court err by ordering Gary to repay the
$1,4X8.82 debt at a rate equal to $7.50 per month?
The Special Master's proposed findings and conclusions in this
case acknowledged the debt owed to Terri, and would have required
Gary to repay her in one lump-sum upon the sale of the house. In
his request to modify those findings and conclusions, Gary
contended it would be "very difficult" for him to pay Terri a lump-
sum payment, because the house had been sold "on a contract" and,
after making the monthly mortgage payment, he was only receiving
$7.50 per month.
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In its final order, the District Court accepted Gary's
proposed modifications without requiring any showing of proof
regarding the sale of the home or the equity payments Gary is
receiving. In explaining its adoption of Gary's proposed
modifications, the court noted Terri's failure to object to any of
Gary's proposals.
As noted above, however, the Special Master's proposed
findings and conclusions, along with Gary's motion to modify them,
were filed on April 15, 1994. This was four days after the filing
of the District Court's final judgment, which substantially
incorporated both the proposed findings and Gary's proposed
modifications.
Terri alleges that she never objected to either document
because she never saw them until after they were filed and the
District Court's final judgment was handed down. Nothing in the
record contradicts this assertion. Terri alleges that it was an
abuse of discretion for the District Court to allow Gary to repay
her at the rate of $7.50 per month, and essentially penalize her
for failing to object to documents she had never seen. We agree.
At the current rate, it will take Gary sixteen years to pay off
this debt. We therefore remand this issue for the factual
determination of Gary's ability to pay and for the institution of
a reasonable payment schedule.
Affirmed in part, reversed in part and remanded to the
District Court for further proceedings in accordance with this
'\
opinion.
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December 19, 1995
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
Leonard J. Haxby, Esq.
Christine D. Somers, Esq.
1485 Continental Drive
P.O. Box 3008
Butte, MT 59702-3008
Gary Gregg Boyer
1317 West Granite Street
Butte, MT 59701
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA