                                                   No.    82-155

                        I N THE S U P R E P ! COURT O F THE S T A T E O F MONTANA

                                                          1982




I N RE THE MARRIAGE O F :

L I L L I A N A.    GRENFELL,

                                     Appellant

             vs     .
ALLEN W. GRENFELL,

                                      Respondent,

and

I N RE THE MARRIAGE O F :

ALLEN W. GRENFELL,

           vs   .
L I L L I A N A.    GRENFELL.




A p p e a i from:         D i s t r i c t C o u r t of t h e T h i r d J u d i c i a l D i s t r i c t ,
                          I n and f o r t h e C o u n t y of D e e r Lodge
                          H o n o r a b l e M a r k P. S u l l i v a n , Judge p r e s i d i n g .

C o u n s e l of R e c o r d :

      For A p p e l l a n t :

             K n i g h t , Dahood, McLean & E v e r e t t ;              David M. M c L e a n ,
             Anaconda, Montana

      For R e s p o n d e n t :

             R.     L e w i s B r o w n , Jr., B u t t e ,     Montana

                                                   -
                                                   S u b m i t t e d on b r i e f s :    August 12, 1982

                                                                        Decided:        October 4,         1982



Filed:       o t t a - 1982


           % m g . * h
                                                   Clerk
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
         Lillian A. Grenfell appeals from an order of the Deer
Lodge County District Court holding that Allen W. Grenfell
was   not    in contempt of   court and   changing     the payment
schedule on support and maintenance.      We affirm.
         In 1976, Lillian and Allen filed suit against each
other for divorce.     The actions were consolidated.       At the
divorce hearing the evidence disclosed a $3,806.92 spending
spree by Lillian following the parties' separation with the
indebtedness charged to Allen.       Lillian had       also forged
Allen's name to an income tax refund check and spent the
$1992.      Allen had been paying $450 per month in temporary
child support and maintenance, which he reduced to $300 per
month following the spree.
         On March 3, 1977, the District Court issued findings
of fact and conclusions of law and entered a decree dissolv-
ing the marriage.     The court found Lillian liable to Allen
for the shopping spree and the tax refund to the extent of
$5,798.92.      The court ordered Lillian to repay Allen by
transferring to him stock worth $5,798.22 from her half of
the stock in the family corporation.      The court also ordered
Allen to pay $375 per month as child support and mainten-
ance, stating that such a reduction would enable him to
liquidate "the debts Mrs. Grenfell showered upon him        . . ."
over the course of four or five years.      The decree was modi-
fied on July 28, 1977.
       On appeal of that order, this Court held          that the
District Court had improperly penalized appellant twice for
the debts she had accumulated--first by ordering her to give
a portion of her corporate stock shares to Allen and again
by r e d u c i n g t h e c h i l d s u p p o r t and m a i n t e n a n c e t o b e p a i d by

Allen.       G r e n f e l l v. G r e n f e l l ( 1 9 7 9 ) , 1 8 2 Mont. 229, 233, 596
P.2d 205, 207.

          On remand t h e D i s t r i c t C o u r t h e l d a h e a r i n g t o a d j u s t

t h e p r o p e r t y r i g h t s between t h e p a r t i e s .          The s t o c k i n t h e
f a m i l y c o r p o r a t i o n was o n c e a g a i n e q u a l l y d i v i d e d     between

t h e p a r t i e s and s u p p o r t a n d m a i n t e n a n c e p a y m e n t s were r a i s e d
t o $450 p e r month.

         Allen has            failed       t o pay     a n y of        the debts      from     the

shopping        spree,        and L i l l i a n h a s b e e n s u e d by m o s t o f          the

creditors        involved.             She r e q u e s t e d     t h a t Allen   be    held     in
c o n t e m p t of     court.        The D i s t r i c t C o u r t h e l d t h a t A l l e n h a d
n o t v i o l a t e d t h e p r o v i s i o n s of        t n e amended d i v o r c e d e c r e e

and    was      therefore          not      in     contempt       of    any   order     of    the
D i s t r i c t C o u r t and o r d e r e d A l l e n t o make s u p p o r t and main-

t e n a n c e p a y m e n t s on o r b e f o r e t h e 2 5 t h d a y o f e a c h month.
         Two i s s u e s a r e r a i s e d on a p p e a l :

          (1)          Whether       Allen        violated       the provisions         of    the
amended d i v o r c e d e c r e e and s h o u l d h a v e b e e n h e l d i n c o n t e m p t
of c o u r t ; and

          (2)        Whether t h e D i s t r i c t C o u r t e r r e d i n m o d i f y i n g t h e

schedule        for       child      support        and     maintenance         payments      sua
                                                                                              -

sponte?
         For t h i s C o u r t t o r e v e r s e t h e D i s t r i c t C o u r t , L i l l i a n

rnust d e m o n s t r a t e t h a t t h e r e was a c l e a r a b u s e of d i s c r e t i o n
by t h e D i s t r i c t C o u r t ,     t h a t t h e r e is a c l e a r p r e p o n d e r a n c e
of    evidence against t h e D i s t r i c t Court's                    findings,      and s h e
must     overcome           the    presumption            that    the    judgment       of    the
District        Court        is c o r r e c t .     Jensen v.          Jensen    ( 1 9 7 9 ) , 182

Mont. 472, 474, 597 P.2d 7 3 3 , 734.
          The D i s t r i c t C o u r t h a s t h e power               t o compel o b e d i e n c e

t o its orders,            s e c t i o n 3-1-111(4),             MCA,      and t o p u n i s h d i s -

obedience of          an order         i n a cause b e f o r e it a s contempt of

court,      s e c t i o n 3-1-501(e),           MCA.       S e e a l s o , Board o f Commis-

s i o n e r s of     Flathead        County       v.    Eleventh            Judicial         District

C o u r t ( 1 9 7 9 ) , 1 8 2 Mont.      463,       470,     597 P.2d          728,       732;    I n Re

Nelson e t a l .          ( 1 9 3 6 ) , 1 0 3 Mont.        43,    52,      60 P.2d         365,       369,

and c a s e s c i t e d      therein.           The D i s t r i c t C o u r t i s n o t ,             how-

e v e r , bound t o f i n d a c o n t e m p t o f c o u r t w h e r e t h e f a c t s d o

not support w i l l f u l disobedience of a c o u r t order.                                 Williams

v.    Budke        (1980),              Mont.               ,    606       P.2d    515,        518,     37

St.Rep.      228,     232;     S t a t e v.     D i s t r i c t Court of Third J u d i c i a l

D i s t r i c t ( 1 9 3 8 ) , 1 0 7 Mont. 1 8 5 , 8 1 P.2d 692.

          Here,      the     District          Court       had     before         it     the     agreed

facts a s p r e s e n t e d by c o u n s e l f o r b o t h p a r t i e s ,                 the tran-

script       of     the     modification             hearing          on     remand,          and      the

previous orders,              findings of           fact,        and     conclusions             of    law

entered i n t h i s action.                   The r e c o r d o n a p p e a l s u p p o r t s t h e

D i s t r i c t C o u r t ' s d e t e r m i n a t i o n t h a t A l l e n was n o t i n v i o l a -

t i o n o f t h e d i v o r c e d e c r e e a s amended.

          The      decree     of     dissolution           was        entered        on     March       3,

1977.       On July 28,            1977, t h e f i n d i n g s of            fact,      conclusions

of    law a n d s u p p o r t i n g o p i n i o n o f           the     District         C o u r t were

m o d i f i e d and supplemented.                I n t h e d e c r e e and i t s s u p p o r t i n g
findings,           conclusions          and       opinion,            the     District           Court

plainly       indicated        that     L i l l i a n owed A l l e n p r o p e r t y             t o the

e x t e n t of t h e $5,798.92          t o t a l of t h e shopping s p r e e and t h e

tax     refund       check       appropriated              by     Lillian.              The      decree

ordered L i l l i a n t o transfer                s t o c k w o r t h $5,798.92              t o Allen

t o balance the property r i g h t s of t h e p a r t i e s .                          The f i n d i n g s
of fact and the decree's supporting opiniorl indicated that
Allen was to pay three specific bills that totaled less than
$200 "as he [was] able" and provided as the rationale for
the lowering of the child support and maintenance payments
to $375 per month that this would give Allen the opportunity
to pay off the bills Lillian had "showered upon him" over
four to five years.
       The court noted in the findings of fact that Lillian's
shopping spree had plunged Allen so far            into debt that
creditors were beginning to sue him on the accounts. The de-
cree did not, however, order Allen to assume responsibility
for the debts.
       On appeal this Court held that the reduction in child
support and maintenance for the purpose of allowing Allen to
liquidate the debts constituted a second penalty to Lillian
since she had already been required to transfer stock to
Allen in order to balance the property award.         Upon remand,
the District Court divided the stock equally between the
parties and then proceeded to raise the child support and
maintenance awards on the basis of changed circumstances.
'The record on appeal does not support Lillian's contention
that tne raise in the maintenance and support award was in
part   due   to   the   District   Court's   consideration   of   the
previous reduction in child support and maintenance for the
purpose of    allowing Allen       to liquidate the debts.        The
findings and conclusions of the court in support of the
amended decree make no reference to the previous reduction.
They base the raise in the award solely upon a change in
circumstances.     Again, the decree did not order Allen to pay
the debts.
       The record demonstrates an awareness on the part of
the original trial court of the likelihood that Allen would
be sued for collection on the accounts and that therefore
the property award should be adjusted accordingly.            It does
not show that this was considered thereafter on remand when
the trial court equalized the property award and adjusted
the support and maintenance award based upon a change in
circumstances.
      The record supports the order of the District Court
entered on March 17, 1982, which held that Allen had not
vlolated the decree of divorce as amended and entered on
Narch 6, 1980.      Lillian has failed to make a showing that
Allen is in contempt of court in regard to the bills from
the shopping spree.     Nor does the record show that Allen was
"able" to pay the three minor bills, was requested to do so
and refused.     This argument fails.
       The second issue raised by        Lillian      is whether   the
District Court erred in modifying the schedule for child
support and maintenance payments sua sponte.           Here, however,
t l court's action was not sua sponte.
 ie                                                Lillian's argument
is without merit.
       Lillian, in her affidavit in support of order to show
cause, requested the District Court to order Allen to make
payments "when due."     At the hearing on this matter, counsel
for   Lillian   again   asked   the   court   to    examine   existing
problems with the payment schedule for support payments.
       The original decree and the amendments of July 28,
1977, called for one payment on the 15th day of the month.
On remand, the District Court provided that the support
payments be made "on a bi-monthly schedule as required by
t h e o r i g i n a l d e c r e e o f t h e c o u r t on March 3 , 1 9 7 7 t o c o n f o r m
w i t h h i s p a y p e r i o d s s e t by e m p l o y e r . "
          S i n c e c o n f l i c t e x i s t s b e t w e e n t h e payment s c h e d u l e a s

set     forth       in      the   original       decree          and    in    the   decree    as
amended o n remand, i t was t h e d u t y o f t h e D i s t r i c t C o u r t t o

r e s o l v e it.        The D i s t r i c t C o u r t q u e s t i o n e d b o t h A l l e n and
L i l l i a n a s t o t h e e x i s t i n g payment s c h e d u l e and t h e p r o b l e m s
with     it.        Modification         of   t h e s c h e d u l e t o conform t o t h e
o r i g i n a l r e q u i r e m e n t o f o n e payment p e r month and t o a l l o w

A l l e n t o p r o c e s s h i s p a y c h e c k b e f o r e s e n d i n g h i s money o r d e r
t o t h e c l e r k o f c o u r t ' s o f f i c e is w e l l w i t h i n t h e D i s t r i c t
Court's discretion.                S e c t i o n 3-1-111(8),           MCA.
         Af f i r m e d .




                                                        Chief J u s t i c e
