No
No. 00-472
IN THE SUPREME COURT OF THE STATE OF MONTANA
2001 MT 107N
IN RE THE MARRIAGE OF:
PAMELA ELLEN LONG, n/k/a
PAMELA ELLEN MALINIAK,
Petitioner and Appellant,
v.
EARL ROBERT LONG,
Respondent and Respondent.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Ted O. Lympus, Judge presiding.
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COUNSEL OF RECORD:
For Appellant:
Mark R. Sullivan, Attorney at Law, Kalispell, Montana
For Respondent:
C. Mark Hash, Hash & O'Brien, Kalispell, Montana
Submitted on Briefs: February 16, 2001
Decided: June 19, 2001
Filed:
__________________________________________
Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
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Operating Rules, the following decision shall not be cited as precedent but shall be
filed as a public document with the Clerk of the Supreme Court and shall be
reported by case title, Supreme Court cause number, and result to the State Reporter
Publishing Company and to West Group in the quarterly table of noncitable cases
issued by this Court.
¶2 The Petitioner, Pamela Long, filed a motion for contempt and a motion to
modify her decree of dissolution in the District Court for the 11th Judicial District in
Flathead County on September 13, 1993. The District Court granted both motions.
The Respondent, Earl Long, who did not attend the hearing, filed a motion to set
aside the order. The Court did not respond to the motion and Earl appealed to this
Court. We reversed and remanded the case on December 23, 1994, for a rehearing
because no record existed from the first hearing. After a second hearing, the District
Court denied both motions. Pamela appeals from the District Court orders. We
affirm the orders of the District Court.
¶3 Pamela raises two issues on appeal:
¶4 (1) Did the District court err when it denied Pamela's motion for contempt?
¶5 (2) Did the District Court err when it denied Pamela's motion to modify the
decree?
FACTUAL BACKGROUND
¶6 Pamela and Earl Long's marriage was dissolved on April 16, 1985, in the
District Court for the 11th Judicial District in Flathead County. The decree of
dissolution required that Earl pay child support for their three children in the
amount of $100.00 per month. Earl was unemployed at the time of the dissolution.
The court ordered Earl to notify the court within two weeks after obtaining
employment so that the court could reevaluate his child support obligation.
¶7 After the original decree was entered, Pamela applied for and began receiving
Aid for Families with Dependent Children. Earl received a letter from the Flathead
County Support Division directing that he make all further child support payments
to the Department of Revenue, Child Support Enforcement Division Program, in
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Helena, Montana. It also informed him to make all inquiries through them in the
future. Earl moved to Seattle, Washington, and found employment with the Boeing
corporation. The Child Support Enforcement Division subsequently assigned his
case to the State of Washington Department of Social and Health Services, Office
of Support Enforcement. After his move he did not notify the district court that he
had obtained employment. However, he did provide all financial and employment
information to either the Montana Child Support Division or the Washington Office
of Support Enforcement.
¶8 On September 14, 1993, Pamela filed a motion to modify the dissolution decree
and a motion for contempt for Earl's failure to notify the court regarding his
employment status. Pamela included an affidavit attesting to her knowledge that
Earl had been working for Boeing for at least five years. Earl did not attend the
hearing. Instead, he sent a response along with financial information directly to the
court. However, the court chose not to consider that information because Pamela's
attorney did not receive a copy of it prior to the hearing.
¶9 The hearing occurred on March 16, 1994. The District Court granted both
motions. The Court held that Earl owed $32,044 for past due child support and
modified the original decree to require that Earl pay $756 per month for child
support in the future. The Court also required that Earl pay Pamela's attorney's fees
and costs. Earl filed a motion to set aside the judgment, pursuant to Rule 60, M.R.
Civ.P. However, Earl's motion was not addressed by the Court within 45 days and
was, therefore, deemed denied as a matter of law. Earl then appealed to the
Montana Supreme Court. We concluded that we were unable to decide the merits of
the appeal without a transcript or trial record. Therefore, we reversed and remanded
the case to the District Court for a rehearing.
¶10 After the rehearing, at which both parties were present, the District Court
denied both motions.
DISCUSSION
ISSUE ONE
¶11 Did the District court err when it denied Pamela's motion for contempt?
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¶12 Unlike contempt orders in other types of cases which are only reviewable by a
writ of certiorari, Montana has carved out an exception in family law cases at §3-1-
523, MCA. See In Re Marriage of Baer, 1998 MT 29 ¶42, 287 Mont. 322, ¶42, 954
P.2d 1125 ¶42. In Lee v. Lee, 2000 MT 67, 229 Mont. 78, 996 P.2d 389, we further
clarified the law in this area. We held in Lee, that "the 'family law' direct appeal
exception established in our case law applies when, and only when, the judgment
appealed from includes an ancillary order which effects the substantial rights of the
involved parties." Lee, ¶37. The Montana Legislature recently updated §3-1-523,
MCA (2001) in order to reflect this clarification. We conclude that the District
Court's denial of contempt contained an ancillary order - the denial of Pamela's
motion to require a retroactive increase in child support, and therefore, the direct
appeal review is applicable here.
¶13 The District Court determined that pursuant to §3-1-501, the motion for
contempt must fail for a lack of jurisdiction. However, Pamela contends that the
contempt motion should be determined pursuant to §40-5-601, MCA, which
provides for civil contempt for nonsupport in child support cases, and therefore the
District Court erred when it relied on §3-1-501 to conclude that the jurisdictional
requirements were not met. Pursuant to §40-5-601, a defendant is in contempt when
he or she has been ordered by a court to pay support, the defendant is aware of the
order, and then fails to pay the court-ordered child support. §40-5-601, MCA. Here,
the support order in the dissolution decree required that Earl pay $100.00 every
month. According to the record, Earl complied with the order, and therefore is not
in contempt of court pursuant to §40-5-601, MCA.
¶14 However, Earl failed to notify the court that he found employment despite a
court order requiring that he do so. Accordingly, we conclude that the District Court
correctly considered Pamela's motion pursuant to §3-1-501(1)(e) which provides
that a person can be held in contempt for "disobedience of any lawful judgment,
order or process of the court." Pursuant to §3-1-512, an affidavit setting forth the
facts constituting the contempt must be presented to the court. Although Pamela
included an affidavit with her motion for contempt, the affidavit did not set forth
facts which when considered alone constituted contempt. Pamela's affidavit states
only that Earl had been employed since 1989 but that fact alone does not constitute
contempt of the original decree. Pamela failed to articulate that Earl's employment
status violates the court order because of his failure to notify the court. We,
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therefore, conclude that the District Court did not err when it held that Pamela's
affidavit was inadequate. However, if this procedural deficiency is excused in order
to reach the merits of Pamela's claim, the result is the same.
¶15 The District Court also found that the "[r]espondent is not in contempt of this
Court's Order because he did comply with the intent and spirit thereof." The record
demonstrates that soon after the dissolution was final, Pamela started receiving
AFDC. The State of Montana sent Earl a letter in which he was instructed to
communicate with them directly on all child support matters and to send all child
support payments to them. When he moved to Washington, the State of Washington
took over the receipt of his child support payments. He testified that he informed
the state office of his address and employment and offered to send payments
directly but the child support office preferred to garnish his wages. While Earl may
not have literally complied with the court's directive, his omission is understandable
in the face of inconsistent subsequent instruction from another branch of state
government. According to the record, Earl was current in his child support
payments. In addition, Earl provided his employment information to what he
thought was the proper agency.
¶16 We agree with the District Court that Earl complied with the spirit and intent
of the decree and should not be held in contempt for his failure to notify the court
after obtaining employment. Accordingly, we conclude that the District Court acted
within its jurisdiction and that substantial evidence supports the District Court's
decision to deny Pamela's motion for contempt.
ISSUE TWO
¶17 Did the District Court err when it denied Pamela's motion to modify the decree?
¶18 We review decisions regarding the modification of child support to determine
whether the District Court abused its discretion. In re Marriage of Kovash (1995),
270 Mont. 517, 521, 893 P.2d 860, 863.
¶19 Pamela contends that the District Court erred by not granting her motion to
require a retroactive increase in child support payments. Since the original decree
ordered Earl to notify the Court once employed so that the Court could modify child
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support, Pamela contends that a retroactive increase in child support payments
would have conformed with, and not modified the original decree. Earl contends,
and the District Court agreed, that these would be impermissible child support
arrearages pursuant to §40-4-208, MCA. The original dissolution decree provided
child support payments in the amount of $100.00. Although the decree included a
provision requiring that Earl notify the court upon obtaining employment, the child
support amount could not be modified absent a motion asking the court to do so.
Therefore, §40-4-208, MCA, is applicable.
¶20 Pursuant to §40-4-208(1),"[e]xcept as otherwise provided in 40-4-201(6), 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." This statutory provision must be strictly construed. In re Marriage of
Petranek (1992), 255 Mont. 458, 460, 843 P.2d 784, 786. According to In re
Marriage of Widalm, "a retroactive child support obligation cannot be imposed in
the face of a clear statutory mandate to the contrary and without any justification
which might serve to override that mandate." 279 Mont. 97, b101-102, 926 P.2d
748, 750. Pamela failed to offer any justification to override this clear statutory
mandate. In fact, Pamela provided no reasonable explanation for not moving for
modification as soon as she became aware of Earl's employment.
¶21 Therefore, we conclude that the District Court did not abuse its discretion
when it denied Pamela's motion to modify the dissolution decree.
¶22 We affirm the judgment of the District Court.
/S/ TERRY N. TRIEWEILER
We Concur:
/S/ KARLA M. GRAY
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/S/ JIM REGNIER
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
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