No. 92-055
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
IN RE THE MARRIAGE OF
MARGARET H. BOHARSKI,
Respondent-Petitioner,
and
GEORGE BOHARSKI,
FEB 2 2 1993
Appellant-Respondent.
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CLERK OF s ~ J I ; ~COURT ~ ~
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STATE OF MONTANA
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Michael H. Keedy Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Martin J. Elison, Hardin, Montana
For Respondent:
James C. Bartlett, Hash O'Brien & Bartlett,
Kalispell, Montana
Submitted on Briefs: January 7, 1993
Decided: February 22, 1993
Filed:
Justice R. C. McDonough delivered the Opinion of the Court.
Appellant George Boharski appeals from the findings of fact,
conclusions of law, and decree of dissolution of marriage entered
by the District Court of the Eleventh Judicial District, Flathead
County. We affirm.
Appellant presented five issues for review by this Court. One
has been conceded as not properly before the Court. We frame the
balance of the issues as follows:
1. Did the District Court err in its award of maintenance?
2. Did the District Court err in finding appellant in
contempt of court and ordering his incarceration for 30 days.
George and Margaret Boharski were married on July 11, 1953.
During the course of the marriage the parties had seven children,
all of whom have now reached the age of majority. In the fall of
1987, George was diagnosed as being totally and permanently
disabled. On October 10, 1989, Margaret filed a petition for
dissolution of marriage.
On December 12, 1989, during a hearing on a conciliation
request, the District Court Judge advised Margaret to have her
attorney move the court for temporary maintenance. Margaret's
counsel subsequently moved the court for an order awarding
temporary maintenance. On March 29, 1990, the District Court
ordered temporary maintenance in the amount of $400 per month,
retroactive to October 29, 1989.
George maintained that all of his income was disability income
which was exempt and he refused to pay the temporary maintenance.
George's income consisted of monthly social security disability
payments of $906, monthly workers' compensation benefits of
$500.40, and monthly union pension disability payments of $363.50
at the time of final decree and slightly less at time of temporary
order. George had no other sources of income.
Pursuant to a motion by Margaret, on September 19, 1990, the
District Court found George in contempt of court for failing to
make the temporary maintenance payments. The District Court
ordered George jailed for 40 days, with 10 days suspended.
In this same order, the court also entered a Qualified
Domestic Relations Order (QDRO) pursuant to the Retirement Equity
Act of 1984, 29 U.S.C. 5 lO562(d) (3). A QDRO is a method of
intercepting payments intended for one spouse and then directing
these payments to the other spouse. A QDRO must be made pursuant
to the existing state domestic relations laws. 29 U.S.C. 5 1056.
The QDRO in this case directed that George's union pension
disability benefits be paid directly to Margaret.
Following George's release from jail, he discharged his
attorney and made a request to disqualify the District Court Judge.
This request was granted. A second District Court Judge assumed
jurisdiction over this matter.
George then moved the ~istrictCourt to terminate the previous
temporary maintenance order. On October 15, 1991, the ~istrict
Court denied this motion.
Trial in this matter began on December 12, 1991, and the
court's final decree was entered on January 3 , 1992. In the
findings of fact in the decree of dissolution, the court found the
net marital estate to be $12,116 annually, which is the annual
value of the workersf compensation benefits ($7774), and the annual
value of the union pension disability payments ($43621,
The District Court awarded all of the workers' compensation
benefits to George. The District Court then awarded the union
pension disability benefits to Margaret, with the QDRO to remain in
place. Additionally, George was to pay to Margaret the sum of
$298.33 per month for 3 6 months out of income received by him, as
an equitable distribution of property and as maintenance. The time
period of payment was made to coincide with her eligibility in the
future for social security benefits. The court also found that
George could make all payments and maintain his lifestyle and
maintain his standard of living. George brought this appeal from
the District Court's entry of the decree of dissolution contending
that the District Court erred in determining maintenance.
I
id the District Court err in its award of maintenance?
Upon reviewing a District Court's award of maintenance, this
Court will not reverse the determination of the District Court
4
unless the findings of fact are clearly erroneous. In re Marriage
of Eschenbacher (Mont. 1992), 831 P.2d 1353, 1355, 49 St. Rep. 393,
394. Upon reviewing conclusions of law relating to the maintenance
award, this Court will simply determine whether the lower court's
interpretation of the law was correct. Steer, Inc. v. Dep't of
Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603.
George contends on appeal that the statutory criteria to be
applied in determining maintenance awards found at 5 40-4-203, MCA,
were not satisfied in this case. George argues in the alternative
that even if the criteria of § 40-4-203, MCA, were met, that
maintenance was still improper in that all of his income was
disability income, and therefore, exempt. George argues that the
District Court erred in awarding maintenance when his only income
was disability income.
It is clear from the record before this Court, and in
particular from the findings of fact of the District Court, that
the requirements of 5 40-4-203, MCA, are satisfied in this case.
Margaret is in need of and is entitled to maintenance.
However, the question before the Court is whether George's
union disability income is available for maintenance purposes. The
uncontroverted evidence at trial and throughout the entire record
of this case is that George's income from his union pension is
disability income. Georgetestified that prior to reaching the age
of 65 the only way an individual may obtain any of the monies in
the pension fund is by demonstrating a disability. Absent a
5
disability there is no payment from the pension fund prior to age
65. George was 58 years old.
The District Court in this case did not make any factual
determination that the payments George receives from the pension
fund are not disability payments. However, the District Court
ordered these funds be paid to Margaret as maintenance, together
with the additional payment of $298.33 per month. The question
before the Court is whether an award of maintenance may be ordered
from the union disability income. This is a question of law.
Margaret argues that maintenance may be so ordered. Margaret
relies on this Court's decision of In re ~arriage Cooper (1990),
of
243 Mont. 135, 793 P.2d 810. In C o o ~ e r ,we stated that disability
benefits may be included by the District Court in determining the
value of the marital estate. Cooper, 793 P.2d at 812. However, in
Cooper the disability benefits were not awarded to the other
spouse, they were simply included in the marital estate.
Disability benefits can be considered by the District Court in
determining an equitable distribution of the marital estate.
Unfortunately, in this situation there is no marital estate apart
from the various disability payments.
George argues that pursuant to 25-13-608, MCA, the
disability payments are exempt and may not be awarded as
maintenance. Section 25-13-608, MCA, provides in part that a
judgment debtor's disability or illness benefits are exempt from
execution. Margaret counters by arguing that "any reliance on 5
6
25-13-608, MCA, to prevent the District Court from awarding the
pension fund, whether it's retirement or disability income, to
Margaret is misplaced." Margaret argues that 5 25-13-608, MCA, is
not applicable in this case.
In In re Marriage of Castor (1991), 249 Mont. 495, 817 P.2d
665, this Court referred to 5 25-13-608, MCA. In Castor, the
husband alleged that his wife had been awarded part of his
disability payments. The wife contended that the payments were
actually retirement payments and not disability benefits.
This Court began the discussion of this issue by noting that
pursuant to 5 25-13-608 (1)(d), MCA, " [i]f the monthly benefits Mr.
Castor is currently receiving qualify as 'disability' benefits,
such payments are exempt . ... Castor, 817 P.2d at 668. In
Castor, however, we held that the benefits in question were
retirement benefits and could, therefore, be properly awarded to
the wife. Deciding the question of whether disability benefits
were exempt from maintenance payments under the exemption statute
was not necessary and therefore can be considered dicta. The Court
is not bound or required to give precedential value to dicta. See
Montana Human Rights Division v. City of Billings (1982), 199 Mont.
434, 441, 649 P.2d 1283, 1287.
Are the union disability payments of a former spouse
applicable to the payment of maintenance to the other former
spouse?
The basis of maintenance is the natural obligation of a spouse
to support the other spouse and children. A decree for maintenance
therefore is not, strictly speaking, a debt in the strict legal
sense of that term, but a judgment calling for the performance of
a duty made specific by a decree of the court. See 24 Am.Jur.2dt
Divorce and Separation 5 531 (1983).
One of the purposes of an exemption from execution statute is
to foster and assist in performance of that obligation so as to
protect the family and home. The statutory exemption is for the
protection of the family of the debtor as much as for the debtor.
See Anaconda Fed. Credit Union # 4401 v. West (1971), 157 Mont.
175, 179-80, 483 P.2d 909, 912. It is in the interest of the state
to protect the homes of its residents. In re Metcalf's Estate
(f953), 93 Mont. 542, 19 P.2d 905.
The duty of the spouse to support separates court ordered
support from a judgment debt so as to allow a violator to be
imprisoned for contempt and not be contrary to the constitutional
provision relative to imprisonment for debt. 16A Am.Jur.2d
Constitutional Law 3 622 (1979). George's obligation is not a debt
and therefore he is not a "judgment debtorN granted the exemptions
by S 25-13-608, MCA. The purpose of such exemption provision is to
foster and enhance the support of a family by protecting money and
assets from the grasp of outsiders and not to help one member of
the family avoid such member's obligation to support the other.
See In the Matter of M.H. v. J.H. (1978), 403 N.Y.S.2d 411, 415.
8
We conclude the union disability payments here in question are
subject to meeting maintenance payments and are subject to a
qualified domestic relations order in the enforcement thereof.
II
Did the District Court err in finding appellant in contempt of
court and ordering his incarceration for 30 days?
Pursuant to § 3-1-523, MCA, contempt of court orders issued by
a district court are final and usually unreviewable by this Court
except by way of a writ of certiorari or review. However, an
exception exists for contempt of court orders made in dissolution
of marriage proceedings. In re Marriage of Sessions (1988), 231
Mont. 437, 441, 753 P.2d 1306, 1308; citing In re Marriage of Smith
(1984), 212 Mont. 223, 225-26, 686 P.2d 912, 914. Therefore, the
contempt of court order in this case is properly before the Court
for review.
George argues that since the order directing him to make
temporary maintenance payments was incorrect as a matter of law,
the subsequent contempt of court order for failing to obey the
temporary maintenance order was error. This Court has previously
stated that ll[t]here is no doubt that a party cannot be guilty of
contempt of court for disobeying an order which the court had no
authority to make." State ex rel. Enochs v. District Court (1942),
113 Mont. 227, 233, 123 P.2d 971, 974.
Maintenance not being a debt within the exemption statute, the
~istrictCourt had the jurisdiction and authority to punish for
contempt for failure to obey its maintenance order.
Under § 25-13-608, MCA, although veterans1 and social
security benefits are subject to execution if they are
levied for child support or spousal maintenance,
Ifdisability or illness benefits" are exempt. Section
25-13-608 (1)(d), MCA. If the monthly benefits Mr. Castor
is currently receiving qualify as IidisabilityM benefits,
such payments are exempt from execution.
Castor, 817 P.2d at 668. After determining that disability
benefits were exempt, this Court in Castor held that the benefits
in question were actually retirement benefits, and could,
therefore, be awarded. The majority opinion states that in Castor
w[d]ecidinq the question of whether disability benefits were exempt
from maintenance payments under the exemption statute was not
necessary and therefore can be considered dicta. I1 To the contrary,
in Castor it was essential that the issue of whether disability
benefits were exempt be addressed, and we specifically held that
disability benefits are exempt and may not be awarded as
maintenance. The statement in Castor referred to in the majority
opinion was not mere dicta, but went to the very heart of our
analysis and decision. Our application and interpretation of § 25-
13-608, MCA, in Castor was correct and should be followed in this
case. Section 25-13-608, MCA, provides in its entirety that:
(1) A judgment debtor is entitled to exemption from
execution of the following:
(a) professionally prescribed health aids for the
judgment debtor or a dependent of the judgment debtor;
(b) benefits the judgment debtor has received or is
entitled to receive under federal social security or
local public assistance legislation, except as provided
in subsection (2);
Justice William E. Hunt, Sr., dissenting.
I dissent. In reaching the holding announced today, the
majority opinion disregards specific exemption provisions in two
separate statutes as well as past precedent of this Court.
Clearly, the application of the law in this situation leads to an
unpleasant result in that there is no other marital property to
award to Margaret, but it is clear that under Montana law the
pension disability benefits, along with the workers1 compensation
benefits, are exempt from maintenance awards.
It is important to recognize that the net marital estate in
this case is $12,116 annually. This amount is a combination of the
annual value of George's workers' compensation benefits ($7774),
and the annual value of his union pension disability benefits
($4362). Margaret was awarded all of the pension disability
benefits, and was awarded an additional $298.33 per month, which by
necessity must come from George's workers1 compensation benefits.
The majority opinion, in determining that George's pension
disability benefits were not exempt, held that the disability
benefits exemption statute found at 5 25-13-608, MCA, does not
apply to maintenance awards. This conclusion is contrary to our
prior decision in Castor. In Castor, the issue was whether one
spouse's disability benefits could be awarded to the other spouse
in a dissolution proceeding. In Castor, this Court correctly
recognized that § 25-13-608, MCA, applied and stated that:
(c) veterans1 benefits, except as provided in
subsection (2);
(d) disabilitv or illness benefits;
(e) benefits paid or payable for medical, surgical,
or hospital care to the extent they are used or will be
used to pay for the care;
(f) maintenance and child support; and
(g) a burial plot for the judgment debtor and his
family.
(2) Veterans1 and social security leqislation
benefits based upon remuneration for emplovment. as
defined in 42 U.S.C. 662ff). are not exempt from
execution if the debt for which execution is levied is
for:
(a) child support; or
(b) maintenance to be paid to a spouse or former
spouse if the spouse or former spouse is the custodial
parent of a child for whom child support is owed or owing
and the i u d m e n t debtor is the parent of the child.
[Emphasis added.]
The majority opinion states that an award of maintenance is
not a debt, George is not a judgment debtor, and therefore, the
disability benefits exemption of 5 25-13-608, MCA, does not apply.
However, the very language of the statute explicitly provides that
a maintenance award against a party is a "debtr1
and that the party
owing the maintenance obligation is a "judgment debtor." The
statute is clear and unambiguous, governs in this case, and should
have been followed by the majority.
The statute provides several exceptions to the general rules
of exemption. One exception is that certain veteransr and social
security benefits are not exempt from execution for maintenance
awards under certain circumstances. The Legislature, while
considering the wisdom of permitting certain exceptions, did not
provide for an exception in relation to disability benefits and
maintenance awards. It is well-settled that:
In the construction of a statute, the office of the
judge is simply to ascertain and declare what is in terms
or in substance contained therein, not to insert what has
been omitted or to omit what has been inserted.
Section 1-2-101, MCA. Additionally, it is a long-standing rule
that when interpreting statutes "the intention of the legislature
is to be pursued if possible." Section 1-2-102, MCA. The
intention of the Legislature is manifest--disability benefits are
exempt. Notwithstanding, the majority has created a new exception
even though the Legislature chose not to do so.
The majority opinion, citing to 24 Am. Jur. 2d Divorce and
Separation 5 531 (1983), refers to the common law basis for
maintenance, i.e., the natural obligation of a spouse to support
the other spouse. This same section goes on to state that in
relation to enforcement of maintenance awards "the recipient spouse
is generally considered a judgment creditor of the obligor spouse
to the extent of being entitled to all remedies given by statute to
such creditors." 24 Am. Jur. 2d Divorce and Separation 5 531
(1983). Likewise, the obligor spouse is a judgment debtor and is
entitled to all protection provided by statute. The applicable
Montana statute provides protection by exempting from execution all
disability benefits of a judgment debtor. Even if the common law
regarding maintenance was contrary to 5 25-13-608, MCA, the statute
governs. Section 1-2-103, MCA, provides that:
The rule of the common law that statutes in
derogation thereof are to be strictly construed has no
application to the statutes of the state of Montana. The
statutes establish the law of this state respecting the
subjects to which they relate ....
There may be policy arguments in favor of the new exception
created by the majority opinion, but if additional exceptions are
to be added to 5 25-13-608, MCA, the Legislature is the appropriate
body to create such new exceptions.
The majority opinion does not discuss the District Court's
award to Margaret of $298.33 per month out of George's workersE
compensation benefits. Section 39-71-743, MCA, provides in part
that "[n]o payments under this chapter shall be assignable, subject
to attachment or garnishment, or be held liable in any way for
debts . . . ." The disability-type benefits George receives from
his workers1 compensation award are exempt and the majority opinion
fails to even address this issue.
Finally, since the order directing George to make temporary
maintenance payments out of his disability and workers1
compensation benefits was incorrect as a matter of law, the
subsequent contempt of court order for failing to obey the
temporary maintenance order was error. A party cannot be guilty of
contempt for disobeying an order which the court had no authority
to make. State ex r e l . Enochs v . District Court (1942), 113 Mont.
227, 123 P.2d 971; Phillips v. Loberg (1980), 186 Mont. 331, 607
P.2d 561.
I would reverse.
Justice Terry N. Trieweiler concurs in the foregoing dissent.
Justice Karla M. Gray concurs in the dissent of Justice Hunt.
February 22, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
MARTIN JOHN ELLISON
Attorney at Law
P.O. Box 414
Hardin, MT 59034
James C. Bartlett
HASH, O'BRIEN & BARTLETT
P,O. Box 1178
Kalispell, MT 59903
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
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