June 7 2011
DA 10-0392
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 124
IN RE THE MARRIAGE OF
KAREN LYNCH STEVENS,
Petitioner and Appellee,
and
RODNEY N. STEVENS,
Respondent and Appellant.
APPEAL FROM: District Court of the Ninth Judicial District,
In and For the County of Toole, Cause No. DR 08-005
Honorable Laurie McKinnon, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Rodney N. Stevens, (self-represented); Shelby, Montana
For Appellee:
Karen Lynch Stevens, (self-represented); Shelby, Montana
Submitted on Briefs: March 23, 2011
Decided: June 7, 2011
Filed:
__________________________________________
Clerk
Justice Beth Baker delivered the Opinion of the Court.
¶1 Rodney Stevens (Rodney) appeals from the District Court’s January 12, 2010,
order declining to hold Karen Lynch Stevens (Karen) in contempt and directing her to
clear title to Rodney’s vehicle or face entry of a judgment against her.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Karen filed a petition for dissolution of marriage on February 25, 2008. The
District Court entered a temporary economic restraining order prohibiting any transfer by
the parties of their assets during the pendency of the proceedings.
¶3 On May 8 and July 17, 2008, the District Court held a hearing on the petition for
dissolution at which both parties appeared pro se. Due to Rodney’s incarceration, he
appeared via Vision Net on both dates of the hearing. Rodney appointed Florence
Majerus as his attorney in fact to handle any transfers of his property. Although each
party claimed entitlement to various items of property, the subject of this appeal is the
right to possess a 2003 Chevrolet Duramax truck titled in Karen’s name. Both parties
claimed an ownership interest in the truck. Karen contended she contributed money for
the truck from her personal retirement account. Rodney provided documentation
evidencing the sale of his house prior to the marriage and his use of premarital funds to
purchase the truck.
¶4 On November 25, 2008, the District Court entered a final decree of dissolution.
The court found the truck was purchased with Rodney’s premarital funds and awarded
him all right and title in the truck. The decree ordered Karen to execute the necessary
document transfers to ensure that title to the vehicle was in Rodney’s name, and directed
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the Motor Vehicle Registrar to issue sole title to Rodney if title had not been transferred
by thirty days from the date of the decree. On December 4, 2008, the District Court
ordered Karen to deliver the truck to the Toole County Sheriff’s Office and directed her
to transfer the title in an expeditious manner. On December 11, 2008, the court denied
Karen’s motion for new trial or amendment of the judgment.
¶5 On January 9, 2009, Karen filed, through counsel, a notice of appeal from the
District Court’s order denying her motion for new trial. After obtaining an extension of
time to file the opening brief, counsel was granted leave to withdraw on June 9, 2009.
After additional extensions of time, Karen’s appeal was dismissed with prejudice on
August 11, 2009, for failing to comply with the Montana Rules of Appellate Procedure.
¶6 On August 14, 2009, Rodney requested the District Court to enforce its dissolution
decree and property distribution order. The court set a show cause hearing on
September 3, 2009, for Karen to explain why she should not be held in contempt for
failure to abide by the court’s orders and be held liable for damages to Rodney for her
continued use of the truck. Despite receiving notice of the hearing and being provided
the opportunity to appear via Vision Net, Rodney was not present because he had been
dispatched by correctional authorities to fight fires. At the September 3, 2009 hearing,
Karen testified that her attorney advised her not to return the truck until after the Supreme
Court appeal was complete. The District Court ordered Karen to deliver the truck and the
keys to the sheriff’s office by 5:00 p.m. that day. Sometime after September 3, 2009,
Karen transferred the truck to the sheriff’s office and Florence Majerus took possession
of the vehicle.
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¶7 On September 18, 2009, the District Court ordered Karen to deliver title to the
truck to the sheriff’s office before 5:00 p.m. on Wednesday, September 23, 2009, or the
court would consider initiating contempt proceedings. However, the title could not be
transferred because Karen already had transferred the title to her mother, Ms. Kennedy,
who placed a bank lien on the vehicle.
¶8 On December 17, 2009, the District Court held another show cause hearing for
Karen to explain why title to the truck had not been transferred as directed by the court’s
prior orders and to address the actions of Karen and Ms. Kennedy. There is no
documentation in the record of an order setting the December 17 hearing or indicating
any notice was given in advance, and Rodney was not present. Karen and Ms. Kennedy
explained to the court that they had taken out a loan on the truck with First State Bank of
Shelby in order to hire a lawyer for Karen’s appeal of the dissolution. Ms. Kennedy
stated she had the ability to repay the loan and was making payments. The District Court
expressed concern at the hearing that the order was going to be difficult to enforce with a
third-party lien having been placed on the truck.
¶9 On January 12, 2010, the District Court issued a written order in which it
determined that Karen’s violation of the economic restraining order was a result of advice
she received from counsel. The court stated, “It would be unproductive and ineffective to
impose a penalty for violation of a court order by finding Petitioner in contempt and
imposing a fine.”
¶10 Instead of holding Karen in contempt for violating the restraining order, the
District Court ordered Karen to remove any and all liens on the truck and to secure a new
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Certificate of Title on or before February 27, 2010. The court further ruled that if Karen
failed to do so, a judgment would be entered against her in the amount of $21,000, the
sum contributed by Rodney from pre-marital funds to purchase the truck. On March 15,
2010, after Karen filed notice that she would be unable to pay off the bank loan until
February 2011, the District Court entered judgment against Karen in the amount of
$21,000 with interest at the rate provided by law.
¶11 Rodney claims that on April 12, 2010, Karen retook possession of the vehicle with
the assistance of the sheriff. The record shows that the Clerk of Court issued a Writ of
Execution on May 7, 2010, requiring the sheriff to satisfy the judgment out of Karen’s
personal or real property. The sheriff was unable to collect from Karen or her employer.
Rodney requested another writ of execution from the District Court and attempted to
initiate fraud charges against Karen. The District Court stated that it could “do neither.”
¶12 We granted Rodney leave to file an out of time appeal. Karen did not file a brief
on appeal.
STANDARD OF REVIEW
¶13 We first examine the record to determine whether the district court acted within its
jurisdiction. Woolf v. Evans, 264 Mont. 480, 483, 872 P.2d 777, 780 (1994) (citing In re
Pedersen, 261 Mont. 284, 288, 862 P.2d 411, 414 (1993)). We review a district court’s
refusal to hold a party in contempt for blatant abuse of discretion. In re Marriage of
Lutes, 2005 MT 242, ¶ 7, 328 Mont. 490, 121 P.3d 561. We exercise plenary review of
constitutional questions. In re Mental Health of T.J.F., 2011 MT 28, ¶ 16, 359 Mont.
213, 248 P.3d 804.
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DISCUSSION
¶14 On appeal, Rodney contends the District Court erred when it failed to hold Karen
accountable for violating the economic restraining order and when it allowed Karen to
repossess the vehicle. Rodney also argues that his right to due process was violated
because he did not receive notice of the September 3, 2009, and December 17, 2009,
hearings.
¶15 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, where one party’s
contemptuous conduct may lead not only to an order of contempt, but also to an ancillary
order which affects the substantial rights of the parties, the Court may exercise appellate
review. Woolf, 264 Mont. at 483, 872 P.2d at 779; Lee v. Lee, 2000 MT 67, ¶ 37, 299
Mont. 78, 996 P.2d 389; § 3-1-523(2), MCA; M. R. App. P. 6(3)(j). Because the District
Court’s January 12, 2010, order affected Rodney’s right to possession and valid title of
the truck, we proceed to review his appeal.
¶16 A district court has the responsibility to enforce its own orders. In re Marriage of
Baer, 1998 MT 29, ¶ 45, 954 P.2d 1125 (citing In re Marriage of Boyer, 274 Mont. 282,
289, 908 P.2d 665, 669 (1995)). We have stated consistently that contempt is a
discretionary tool of the court to enforce compliance with its decisions. Id. We also have
observed the court’s power to inflict punishment by contempt is necessary to preserve the
dignity and authority of the court. Id.; Woolf, 264 Mont. at 483, 872 P.2d at 779.
Accordingly, where a district court has found that there is no such need to enforce
compliance with its order or that the actions of a party do not present a challenge to its
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dignity and authority, we will not reverse its decision absent a blatant abuse of discretion.
Id.
¶17 In its January 12, 2010, order, the District Court determined that, despite Karen’s
violation of the restraining order, it would be “unproductive and ineffective” to hold her
in contempt of court. The court instead required Karen to return the truck or face a
substantial judgment in Rodney’s favor. Rodney argues, had he been given the
opportunity to present evidence that Karen lied during the contempt hearings, the court
would not have made a determination based only on Karen’s testimony. Rodney attached
to his brief on appeal a letter from Karen’s former attorney denying that he had advised
her to violate the restraining order. However, that letter was not before the District Court
and we cannot consider it on this appeal. M. R. App. P. 8; State v. St. Dennis, 2010 MT
229, ¶ 38, 358 Mont. 88, 244 P.3d 292.
¶18 Rodney argues his right to due process was violated by the District Court’s failure
to provide him with notice of the contempt hearings on September 3, 2009, and
December 17, 2009. The United States and Montana Constitutions ensure that “[n]o
person shall be deprived of life, liberty, or property without due process of law.” Mont.
Const. art. II, § 17; U.S. Const. Amend. V. Due process requires notice and the
opportunity to be heard “at a meaningful time and in a meaningful manner.” Mont.
Power Co. v. Pub. Serv. Commn., 206 Mont. 359, 368, 671 P.2d 604, 609 (1983) (quoting
Matthews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 902 (1976), and Armstrong v.
Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 1190 (1965)); In re Marriage of Fishbaugh,
2002 MT 175, ¶ 15, 310 Mont. 519, 52 P.3d 395 (citation omitted). Notice must be
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“reasonably calculated to inform parties of proceedings which may directly and adversely
affect their legally protected interests.” Mont. Power Co., 206 Mont. at 368, 671 P.2d at
609 (citation omitted). We have invalidated a district court order as a violation of due
process where a person’s rights under a prior judgment were ancillary to a contempt
proceeding and affected by the court’s contempt order. State ex rel. Shelhamer v. Dist.
Ct., 159 Mont. 11, 15, 494 P.2d 928, 930 (1972).
¶19 In Shelhamer, the plaintiff executed an affidavit accusing the defendant of failing
to pay support as required by the dissolution decree. Shelhamer, 159 Mont. at 12, 494
P.2d at 929. The district court issued an order to show cause and both plaintiff and
defendant appeared at the hearing. Id. During the hearing, the court expressed
dissatisfaction with the custody provisions in the original decree and, over objections of
defense counsel, directed a change in custody. Id. This Court reversed because the show
cause order was directed at the defendant’s failure to make support payments, not a
change in custody, and nothing in the pleadings indicated any change in custody was
sought. Id. We determined the defendant was not given adequate notice or opportunity
to be heard regarding custody and the district court erred in changing custody provisions
during a contempt proceeding for nonsupport. Id. at 15, 494 P.2d at 930.
¶20 Like Shelhamer, the District Court’s order in this case affected substantive
provisions of the decree of dissolution. The court effectively modified the decree’s
provisions directing the distribution of property without any request by either party for
such a modification. In Shelhamer, notwithstanding the defendant’s presence at the
hearing, we found error in the modification of custody because he was not given notice
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that substantive provisions of the decree would be considered. Here, though the record
shows Rodney received notice of the September 3, 2009 hearing, it contains no indication
of notice issued by the court of the show cause hearing on December 17, 2009. With no
evidence to the contrary, it appears Rodney was not given notice of the hearing or an
opportunity to be heard.
¶21 The District Court had broad discretion to determine whether or not to hold Karen
in contempt for non-compliance with the decree. Although the court acted within its
discretion in refusing to issue a contempt order, the court did not have authority to
modify the distribution of property under its prior decree without notice to both parties
and an opportunity to be heard, and it erred in doing so.
¶22 Nonetheless, we must consider whether Rodney was prejudiced by the lack of
notice of the December 17 hearing. An error must cause “substantial prejudice” to
warrant reversal. In re S.C., 2005 MT 241, ¶ 29, 328 Mont. 476, 121 P.3d 552 (citing
Tipp v. Skjelset, 1998 MT 263, ¶ 16, 291 Mont. 288, 967 P.2d 787). Having concluded
that clear title to the truck could not be secured because of the bank lien, and noting it had
no jurisdiction in the case to enter orders affecting the bank’s interest in the property, the
District Court awarded Rodney the equivalent sum of money that he had expended to
purchase the truck. The effect of the court’s order was to make Rodney whole for the
premarital funds he contributed. With judgment in hand, Rodney is not without recourse,
since his right of execution on the judgment continues for ten years after its entry.
Sections 25-13-101 and 27-2-201(1), MCA. Under the process by provided by law, see
Title 25, chapter 13, MCA, Rodney may satisfy the judgment from any property Karen
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owns or subsequently acquires that is not otherwise exempt from execution. Sections 25-
13-608 through -609, MCA. We therefore conclude that Rodney was not prejudiced by
the District Court’s ruling, since the court entered judgment in his favor.
¶23 Affirmed.
/S/ BETH BAKER
We concur:
/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS
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