No. 94-397
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
IN RE THE MARRIAGE OF:
KAREN HEATH,
Petitioner and Appellant,
-v-
GREGORY HEATH,
Respondent and Respondent.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Larry W. Moran, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Marcelle C. Quist, Carolyn S. Parker, Quist Law
Firm, Bozeman, Montana
For Respondent:
William A. Bartlett, Angel, Screnar, Coil, Bartlett
& Fay, Bozeman, Montana
Submitted on Briefs: March 16, 1995
Decided: August 31, 1995
Filed:
Clerk '
Justice James C. Nelson delivered the Opinion of the Court.
Appellant, Karen Heath (Karen), brought an action requesting
the District Court of the Eighteenth Judicial District, Gallatin
County, to find Respondent, Gregory Heath (Gregory), in contempt
for failing to make payments as required by a Custody, Support and
Property Settlement Agreement incorporated into their final decree
of dissolution. The court determined that Karen had not been
reasonable in incurring expenses on behalf of the parties' minor
children or in her motion to hold Gregory in contempt. The court
awarded Gregory his reasonable and necessary attorney fees, the
amount to be established by a separate hearing. Karen appeals. We
affirm in part, reverse in part and remand.
The issues on appeal, as framed by this Court, are:
1. Did the District Court err by failing to find Gregory in
contempt for not complying with the dissolution decree
incorporating the parties' contractual agreement?
2. Did the District Court err in awarding attorney fees to
Gregory?
Background Facts
The District Court dissolved the marriage of Karen and Gregory
on June 11, 1990. The parties had previously entered into a
settlement agreement providing for the custody and support of their
three minor children. This agreement was incorporated into the
Decree of Dissolution of Marriage and provided for the following:
Karen would have custody of the children, subject to visitation
with Gregory upon mutual agreement of the parties; Gregory would
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maintain a health insurance policy for the children, sharing the
deductible and uncovered expenses with Karen at a ratio of 75% to
Gregory and 25% to Karen; Karen and Gregory would share monthly
day-care expenses and all private school tuition incurred by the
children based upon the same percentages; Gregory would pay child
support in the amount of $245.00 per child per month; Gregory would
maintain a $150,000 life insurance policy on his life with Karen as
owner and the children named as primary, joint, irrevocable
beneficiaries; and Gregory would place $200 per month into a joint,
interest-bearing education fund requiring the signatures of both
Karen and Gregory.
Karen and the children subsequently moved to Louisiana, where
Karen attends the University of New Orleans, studying computer
science. Gregory, a stockbroker, remarried and adopted his two
step-children. He continues to reside in Bozeman.
On July 13, 1993, Karen moved the District Court to hold
Gregory in contempt for failing to make payments as required by the
June 11, 1990 decree. The arrearages claimed by Karen included:
$1,484.50 for child support and maintenance; $857.25 for medical
expenses not covered by insurance; $4,632.95 for day-care expenses;
$2,165.00 for tutorial expenses; $1,990.04 for health insurance
premiums; $6,797.62 for the children's education fund; and $875.00
for life insurance premiums.
A hearing on Karen's Motion for Contempt was held on August
18, 1993. Karen traveled to Montana to attend the hearing. In the
middle of her cross-examination, the District Court stopped the
3
proceeding and ordered the parties to attend mediation. When the
parties failed to resolve the matter, a new hearing date was set.
Karen was unable to attend the second hearing, but was represented
by her attorney.
At the second hearing, Gregory delivered to Karen's attorney
two checks totaling $399.15 for uncovered medical expenses. The
remaining $458.10, for glasses for their son Scott, remained in
dispute. In addition, it was determined that the $1,484.50 in
child support arrearages had already been collected by the Child
Support Enforcement Division.
In its May 3, 1994 Findings of Fact and Conclusions of Law,
the District Court concluded that Karen had not been reasonable in
incurring expenses on behalf of the children and in her motion to
hold Gregory in contempt. The court determined that Gregory owed
Karen $2,316.48 for day-care expenses and that all other amounts
claimed by Karen were unreasonable or unnecessary. In addition,
the court found that Karen unjustifiably denied Gregory visitation
and ordered an offset of $550 to reimburse Gregory for travel
expenses to Louisiana. The court also determined that Gregory was
the prevailing party for purposes of awarding attorney fees.
The District Court entered Judgment on June 28, 1994,
incorporating its earlier findings and conclusions. Karen appeals
this Judgment.
Issue 1
Did the District Court err by failing to find Gregory in
contempt for not complying with the dissolution decree
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incorporating the parties' contractual agreement?
Karen filed a motion to have Gregory held in contempt for
failing to make payments as required by the June 11, 1990 Decree of
Dissolution of Marriage. The District Court denied Karen's motion
and refused to hold Gregory in contempt, finding instead that
Gregory had substantially complied with the provisions of the
divorce decree.
As a general rule, contempt orders are final and not
reviewable by this Court except by writ of certiorari. Section 3-
1-523, MCA. However, we have created an exception in family law
cases, to review contempt orders on appeal. Woolf v. Evans,
(19941, 264 Mont. 480, 483, 872 P.2d 777, 779. Our review is
limited to examining the record to determine whether the district
court acted within its jurisdiction and whether the evidence
supports the district court ' s findings with respect to the
contempt. Woolf, a72 P.2d at 779.
Karen and Gregory voluntarily entered into a Custody, Support
and Property Settlement Agreement, as provided by § 40-4-201(l),
MCA. The agreement was not found to be unconscionable and was
incorporated into the parties' final dissolution decree. Section
40-4-201(4), MCA, provides that if the court finds that the
separation agreement is not unconscionable, "its terms shall be set
forth in the decree of dissolution . . . and the parties shall be
ordered to perform them . . .'I
Montana courts are required by statute to interpret
dissolution of marriage agreements by the law of contracts. Quinn
5
v. Quinn (1981), 191 Mont. 133, 136, 622 P.Zd 230, 232 (citing §
40-4-201(5), MCA). If the language used in a contract is clear and
explicit, it controls the contract's interpretation. Ouinn, 622
P.2d at 232 (citing § 28-3-401, MCA). If the parties find the
terms of an agreement unreasonable or not in the best interests of
the parties' children, the proper procedure is to move the court to
modify the agreement.
Once an obliger's payments become due under a decree of
divorce they are fixed and absolute, and the law puts the
burden upon the obligor to make a positive act if he
desires to modify these obligations. [Emphasis added.]
State of OR. ex rel. Worden v. Drinkwalter (1985), 216 Mont. 9, 14,
700 P.2d 150, 153. Furthermore, 5 40-4-208(l), MCA, provides:
a decree may be modified by a court as to maintenance or
support only as to installments accruing subsequent to
actual notice to the parties of the motion for
modification. [Emphasis added. 1
Here, Gregory has never filed a motion to modify the agreement
contained in the court's decree of dissolution nor made any other
positive act toward modification. Instead, he unilaterally has
decided which provisions of the agreement to honor and the extent
to which he will perform others
Karen is attempting to enforce the court's dissolution decree
containing the parties' contractual agreement and obtain the
amounts due her under the clear and explicit provisions of the
decree and agreement. To that end, she filed a motion to hold
Gregory in contempt for violating the decree by not paying certain
expenses.
The disobedience of any lawful judgment, order, or process of
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the court constitutes contempt of the authority of the court.
Section 3-l-501(1) (e), MCA; Woolf, 872 P.2d at 781. The District
Court refused to hold Gregory in contempt, finding instead that
Gregory had substantially complied with the decree and agreement.
We conclude that the evidence does not support that finding. We
will review each of the arrearages claimed by Karen and the
District Court's determination as to contempt in relation to each
claim.
First, the District Court found that the purchase of
eyeglasses for the parties' son Scott was neither necessary nor
reasonable and the court determined, in essence, that Gregory had
not violated the decree and agreement by refusing to reimburse
Karen for his share of the eyeglass expense. The decree and
agreement state that Gregory is to pay a portion of "all" medical
expenses not covered by insurance. Although it was later
determined that Scott did not need the eyeglasses, they were
recommended by a professional and ultimately resulted in a
diagnosis of epilepsy. The evidence does not support the District
Court's finding that Gregory's failure to reimburse Karen for the
purchase of the eyeglasses did not violate the decree.
Second, the District Court found that Karen had been "less
than economical in her use of daycare" and the court determined
that Gregory had not violated the decree and agreement by refusing
to reimburse Karen for his share of the day-care expenses. The
decree and agreement provide that both parties are to share all
necessary monthly day-care expenses. Gregory disputes the cost of
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the day-care facility that Karen chose. Although it was determined
that the day-care facility at the University of New Orleans only
charged one dollar an hour, Karen testified that she could not
leave her children there because the facility would only take
children up to age five. Karen testified that she investigated
other day-care facilities and chose the least expensive. She also
testified that she had to pay for child care by the month to ensure
the facility would reserve a space for her children.
Gregory did not present any evidence to refute Karen's
statements regarding the cost of day care in Louisiana. Merely
because Gregory disagreed with the policy and procedures of the
day-care provider requiring payment by the month rather than
payment only for the days the children attend day care, does not
mean that the day-care expenses incurred by Karen were not
necessary and reasonable. The evidence does not support the
District Court's finding that Gregory's failure to reimburse Karen
for day-care expenses did not violate the decree.
Third, the District Court found that the expenses for Scott's
tutor were neither reasonable nor necessary and determined that
Gregory had not violated the decree and agreement by refusing to
reimburse Karen for his share of the tutoring expenses. The decree
and agreement provide that both parties are to share all private-
school tuition incurred by the children. Gregory decided that the
tutor was not doing Scott any good and he refused to pay for
Scott's tutoring expense. Gregory is not a professional educator.
Karen incurred an expense doing what she had been advised to do by
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professionals and what she believed was in the best interest of her
child. The evidence does not support the District Court's finding
that Gregory's failure to reimburse Karen for Scott's tutoring
expenses did not violate the decree.
Fourth, the District Court found that Gregory's ESOP and 401K
plans substantially complied with the decree and agreement and that
Gregory had not violated the decree and agreement by refusing to
set up a separate educational fund. The decree and agreement
provide that Gregory will place $200 per month into an educational
fund for the parties' three children. The ESOP and 401K plans
offered by Gregory to replace the educational fund offer no
protection for the parties' three children as Gregory and his
adopted children can use these plans for education, purchase of a
home or retirement. In addition, the decree and agreement
specified that the account was to be in both Karen and Gregory's
names and required both of their signatures for withdrawal. The
ESOP and 401K plans do not meet these requirements. The evidence
does not support the District Court's finding that Gregory's
failure to set up a separate educational fund did not violate the
decree.
Fifth, the District Court found that Gregory had satisfied his
obligation to provide health insurance and determined that Gregory
had not violated the decree and agreement by refusing to reimburse
Karen for the premiums on an additional health insurance policy.
The decree and agreement required that Gregory maintain a policy of
health insurance for the children. With the exception of the two
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months when he was between jobs, Gregory did provide health
insurance coverage for the children. During the two-month lapse,
Gregory paid uncovered medical expenses. The evidence does support
the District Court's findings that Gregory satisfied his obligation
to provide health insurance and that Gregory's failure to reimburse
Karen for the premiums on an additional health insurance policy did
not violate the decree.
Last, the District Court found that Gregory's current life
insurance plan in the amount of $125,000 substantially complied
with the decree and agreement and that Gregory had not violated the
decree and agreement in this respect. However, the decree and
agreement state that the life insurance shall be "not less than"
$150,000. This means a benefit of $50,000 for each of the parties'
three children. Gregory's current policy is for the benefit of his
two adopted children as well as the parties' three children. This
means a benefit of only $25,000 per child. The evidence does not
support the District Court's finding that Gregory's current policy
does not violate the decree as each of the parties' three children
lose $25,000 in benefits under this current policy. Additionally,
Gregory's current policy does not list Karen as the owner of the
policy as required by the decree and agreement.
In addition to denying Karen's Motion for Contempt, the
District Court found that Karen unjustifiably denied Gregory
visitation and the court ordered an offset of $550 for Gregory's
travel expenses to Louisiana. Although the offset has no bearing
on the contempt issue, it was raised at the hearing and both
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parties address it on appeal. We will, therefore, address it here.
Scott had been having problems completing his homework
assignments. To improve his behavior, he was placed on a program
where he had to complete his homework or be grounded on the
weekends. When Scott failed to complete all of his homework
assignments during the week prior to Gregory's visit, Karen
grounded Scott and refused to let him go on an outing with Gregory
and the other two children.
We agree with the District Court that Gregory should be
allowed an offset for travel expenses to Louisiana. Although Karen
may have thought she was acting in Scott's best interest, a non-
custodial parent's reasonable visitation rights should not be
denied absent a showing that visitation would seriously endanger
the child's physical, mental, moral or emotional health. Section
40-4-217(l), MCA. Karen could have found some other way to punish
Scott rather than denying him an outing with his father,
particularly when the father must travel across the country to see
the children.
Nevertheless, we hold that Gregory failed to pay support as
ordered by the dissolution decree and Karen properly filed a
petition in District Court to find Gregory in contempt. As our
review of the arrearages claimed by Karen shows, the evidence does
not support the District Court's findings denying Karen's Motion
for Contempt. Gregory did not comply with the decree of
dissolution incorporating the parties' contractual agreement.
Accordingly, we reverse and remand for reconsideration and further
11
proceedings in light of this opinion.
Issue 2
Did the District Court err in awarding attorney fees to
Gregory?
Because we reverse the District Court's findings regarding
Gregory's compliance with the decree of dissolution incorporating
the parties' contractual agreement, we also reverse the award of
attorney fees and remand to the District Court for reconsideration
and further proceedings in light of this opinion.
Affirmed in part, reversed in part, and remanded for further
proceedings in light of this opinion.
Iii ZCZCp~
Chief Justice
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Justice Karla M. Gray, specially concurring.
I concur in most of the Court's opinion, but not in that
portion which addresses Gregory's responsibility for part of
Scott's tutoring expenses. Notwithstanding, I join in the results
reached by the Court.
With regard to the expenses for tutoring Scott, the decree and
agreement require Karen and Gregory to share the expense of "all
private school tuition incurred by the minor children." Tutoring
expenses are not school tuition. Thus, it is my view that Gregory
is not responsible for any portion of the tutoring expense and did
not violate the decree by refusing to pay a portion of that
expense.
Nevertheless, it is clear that Gregory violated the decree and
agreement in a number of ways. Therefore, I join in the Court's
remand for further proceedings on Karen's motion for contempt.
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Justice William E. Hunt, Sr. dissenting.
What the majority has done in its opinion is retry the case
and then infer, based on its findings, that the husband must be
held in contempt. That decision is uniquely within the discretion
of the District Court.
I would affirm the District Court.
Justice Terry N. Trieweiler concurs in the foregoing dissent.
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August 31, 1995
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
Carolyn S. Parker
QUIST LAW FIRM, L.L.C.
1807 West Dickerson, Suite D
Bozeman MT 59715
William A. Bartlett
ANGEL, SCRENAR, COIL, BARTLETT & FAY
125 West Mendenhall
Bozeman MT 59715
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
-