No. 14380
IN THE SUPREME COURT O THE STATE O
F F ~~
1978
STATE O M3NTANA, ex re1 JOY V. KAASA,
F
Relator,
DISTRIcr COURT O THE -
F S JUDICIAL
DISTRICT, IN AND FOR THE COUNTY O PHILLIPS,
F
AND THE HON. LEONARD H. LANGEN, PRESIDING JUDGE,
ORIGINAL PFamEDING:
Cousnel of Record:
For Relator:
Burns, S o l a and MacKenzie, Chinook, Mntana
Suhnitted: June 29, 1978
Decided: u
J L 2 1978
Filed: jljL 2 i;. 1978
Mr. Justice John C. Sheehy delivered the opinion
of the Court.
his is an Application for Writ of Supervisory Control
or Other appropriate writ.
Relator, Joy V. Kaasa, is the petitioner for dis-
solution of marriage in civil cause no. 6228 in the District
Court of the Seventeenth Judicial District, Phillips County.
Her petition, with a request for division of the marital
property, was heard November 5, 1976. After hearing, the
District Court issued its Findings of Fact, 'Conclusions of
Law and Judgment on February 28, 1978. Notice of appeal to
this Court was filed by the husband, Osborne A. Kaasa, on
March 30, 1978.
A copy of the Judgment appears in the record. By it,
the marriage was dissolved and custody of a minor child was
awarded to the mother for part of each year and to the husband
for the remainder of each year; with the husband to pay the
wife $75.00 for each month the child resides with her. With
respect to the marital property, among other things, she is
to receive $99,138.00 in value payable to her by delivering
certain property to her at a decreed value and a balance of
$67,656.00 to be paid to her over a period of 25 years computed
on an amortized basis of 6% per annun, payments to be made
annually beginning a year from the decree. She was also
awarded attorney fees of $1,000.00. There are other provisions
in the decree not important here.
After the notice of appeal was filed, the relator wife
filed a motion in the District Court requesting an Order to
Show Cause addressed to the husband concerning temporary
maintenance, custody and attorney fees. A hearing was held on
April 20, 1978 and thereafter the Court indicated the findings
it would enter in the cause, to be effective pending final
determination on appeal. However, the District Court also
indicated that it would not enter conclusions of law, or
make a temporary order pending appeal, because of the District
Court's interpretation that the filing of a notice of appeal
had taken away its jurisdiction to enter such an order
pending appeal. The provisions of the temporary findings
which the District Court would enter on the hearing to show
cause if it had jurisdiction would be in substantial variance
from the provisions of the decree which is the subject of
the husband's appeal.
The District Court recommended that the wife file an
application in this Court for an order which would grant the
relief found by the District Court, or else authorize the
District Court to enter such a temporary order. Hence, the
wife, as relator, comes before us for a writ of supervisory
control or other appropriate writ, requesting the temporary
relief suggested by the District Court, either by our order,
or by authorizing the District Court so to order.
A decree of dissolution of marriage is final when
entered, subject to the right of appeal. Section 48-328,
R.C.M. 1947. The District Court has power to modify or
terminate a decree for maintenance of support only under
section 48-330, R.C.M. 1947. The District Court loses authority
to modify its judgment or decree upon a notice of appeal
being duly filed. Benolken v. Miracle, (1954) 128 Mont.
262, 266, 273 P.2d 667. Then all further proceedings in the
District Court are stayed upon the judgment appealed from,
or " * * * upon the matters embraced therein. * * *" Section
93-8011, R.C.M. 1947.
The District Court is not completely powerless, however.
It has the power to enforce the judgment already entered by
contempt proceedings, where no stay of judgment has been
ordered. Kramer v. Kramer , (1978) , Mont . , 578
p.2d 317, 35 St.Rep. 635; Myhre v. Myhre, (1976) 170 Mont.
410, 548 P.2d 1395, 33 St.Rep. 598. It further has the
statutory power, under section 48-327, R.C.M. 1947, to require
the husband to pay reasonable sums to the wife for attorney
fees and costs in maintaining or defending a proceeding, even
"after entry of judgment." In the final analysis, it also
has the power to order temporary support pending appeal for
the wife and minor children.
This Court noted in Bordeaux v. Bordeaux, (1904) 29
Mont. 478, 482, 75 P. 359 that:
"We are of the opinion that under the
above-quoted provisions of the statute the
district court had jurisdiction and power,
notwithstanding the judgment, at any time
prior to the determination of the action
on appeal from the judgment, or prior to
the expiration of the time of appeal, to
require the husband to pay any money necessary
to enable the wife to support herself and to
further prosecute or defend the action.
(Citing cases)."
The Court reached that conclusion in Bordeaux after
analysis of statutes then in effect. Section 21-137, R.C.M.
1947 (then Section 191, Civil Code) provided for expenses
of action and alimony pending the action. Section 91-8076,
R.C.M. 1947, still in effect, says that an action is deemed
to be pending "from the time of its commencement until its
final determination upon appeal, or until the time for appeal
has passed, unless the judgment be sooner satisfied." Therefore,
regardless of the appeal taken by the husband Osborne A. Kaasa,
the action for marital dissolution is still pending in the
District Court. The Court concluded in Bordeaux that the
matter of temporary support and suit money, pending appeal,
was not a matter "embraced" within the judgment, under
section 93-8011, R.C.M. 1947, and therefore the District Court
could award such temporary items even though an appeal is
pending.
Further, in an earlier action between the same parties
(Bordeaux v. Bordeaux, (1902) 26 Mont. 533, 69 P. 103) this
Court decided that the Supreme Court had no power to grant
temporary alimony or suit money, nor was such power necessary
to the complete exercise of its appellate jurisdiction. We
agree with what Mr. Justice Pigott wrote in that case about
the effect of an appeal upon an action and its pendency in the
District Court:
" * * * The action-the entire case-is not
transferred by appeal. Questions of law only
are presented on appeal, even where the relief
sought is equitable in character. The action
itself is still pending in the lower court.
On an appeal only questions of law are tried;
* * *Except insofar as affected by the appeal,
the cause remains in the district court, the
primary forum. * * * " 26 Mont. at p. 536.
The District Court, by statute, may after judgment
"proceed upon any other matter embraced in the action, and
not affected by the order appealed from." Section 93-8011,
R.C.M. 1947.
The Uniform Marriage and Divorce Act now in effect in
Montana gives the District Court authority to provide temporary
orders for support and maintenance to a spouse. Section 48-318,
R.C.M. 1947. Nothing in that statute restricts the power of the
District Court to orders made before judgment. In fact, it
is specifically provided that the granting of such an order
does not prejudice the rights of the parties at "subsequent
hearings in the proceeding," which would include an appeal.
Section 48-318 (6)(a), R.C.M. 1947.
We hold therefore that a District Court has power to
award necessary maintenance, child support and suit monies
after judgment in a marital dissolution case, where an appeal
is taken from the judgment, during the pendency of the appeal.
To hold otherwise would leave a hiatus in the remedial power
of the District Court that could cause unmeasured hardship and
distress. Our holding is consonant with the purposes of the
Uniform Marriage and Divorce Act, to "mitigate the potential
harm to the spouses and their children caused by the process
of legal dissolution of marriage." Section 48-302(4), R.C.M.
1947 (Emphasis supplied) .
Since the wife has an adequate remedy in the District
Court, her application for a writ is denied. Because we have
not ordered an adversary hearing on her application, we have
not had the benefit of briefs on this matter from the husband.
Should he desire to contest what we have said here, he may
appeal directly from any temporary order granted during appeal,
or we will entertain the issue if raised in his briefs on his
appeal from the dissolution decree.
7
/I Justice
WE CONCUR:
x & ~ $4fh&
,Chief Justice
Justices