                     IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                           No.      93-419



IN RE THE MARRIAGE OF                                                          ;
DENISE         RENE JURGENS,                                                   i
                   Petitioner               Below,                             ;
          and                                                                  ;           OPINION
                                                                                                 and
JIMMIE         ALLEN TURNER,                                                   ;             ORDER
                   Respondent               Below and                          ;
                   Petitioner               Herein,                                                                        ;;.'>L'$8>~
                                                                               ;                                                  F$
          v.                                                                                                                 :,:lj?
                                                                               ;                             :' 2. fE yJcJj3
ELEVENTH JUDICIAL                    DISTRICT             COURT,               )




          On May 25,               1993,      the        Eleventh           Judicial             District           Court,          Judge

Michael         H. Keedy presiding,                       issued          a final             decree       of dissolution               in
the       marriage            of      Denise             Jurgens                   (Jurgens)           and      Jimmie             Turner

(Turner).               In     the         final         order,            Turner             was      ordered          to     pay      to
Jurgens:

          1) $195        per        month           in    child           support             beginning          June        20,
          1993;

          2) $2,826 for               Jurgens'             interest                 in     the   real        property         of
          the marriage;
          3) $508 for                 Jurgens'             half           of         the      parties'           1991        tax
          refund: and
          4)    $1,161        in     retroactive                 child             support.

Neither         party        appealed              the    order         and decree               of      dissolution.

          On July        2,        1993,      Jurgens             filed             an "affidavit              of    facts"          with

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the        District                   Court               in         which             she          stated               that                 Turner                     had         not         paid         any

of        the          sums              ordered                     by         the          District                        Court                      in         the          decree.                      The

District                     Court            subsequently                                 issued             an         order                         instructing                           Turner                to

appear                 and          show            cause                 why         he       should                  not              be             held              in       contempt                    for

failing                 to         pay        the         sum             of      $4,8[8]5                   as         ordered                          in         the         May          25,         1993,

order             and         decree                of     dissolution.                                   A July                27,                1993,                 hearing                 date        was

set.

             On         July              26,            1993,                 the         day            prior               to             the                 scheduled                       contempt

hearing,                     Randall                  Snyder,                    an         attorney                     for             Turner's                             father,                   George

Turner,                 faxed                 and        mailed                   a        letter               to           Jurgens'                             counsel.                         In       that

letter,                 Snyder                 indicated                        that           he         was          enclosing                                  a check                  for          $2,000

which             was              "payable                    to          your             trust             account                              .         .      .     This              amount                 is

forwarded                      to        you,             for             application                             on         Jimmie's                              obligation                       to       Ms.

Jurgens."                           The         letter                     also             stated                that                  "I             included,                        within               the

amount             payable                    to         Ms.          Jurgens,                      the       amount                         for             June             and       July             child

support."

             The             contempt                     hearing                     was           held               the              following                             day.                 Jurgens

testified                     that            she        had          received                      no money                    from                   Turner                  for         payment                 of

the        amounts                   ordered                   in         the         May         25,        1993,                  decree.                             Turner               testified

that,             as         far         as        he     knew,                 Jurgens                   and          her           counsel                            had          accepted                his

offer             to         discharge                         the             amount               owing              by           a         $2,000                     downpayment                         and

terms             of          $150            per         month                  at         ten           percent                       interest.                                The             District

Court             found              Turner                    guilty                 of       contempt                        of            court                      and       entered                   four

separate                 counts                 of       contempt,                         apparently                         for             the                four         separate                   debts

set         out          above,                 and            sentenced                       him           to         five                 days                  incarceration                              for

each            count--a                      total                  of         twenty                  days.                       The                 District                        Court               also


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ordered             that        Turner           could                purge           himself                 of        contempt            if     he      paid

Jurgens               $4,885,            plus         costs             and           attorney's                     fees          of     $529.20,            by

August           24,       1993.

           On August                 24,         1993,             Turner                 filed           a        petition              for       writ       of

certiorari                 with      this            Court.                 He argued,                  among              other         things,           that

the      District             Court         refused              to hear               or accept                   his     evidence              regarding

the      parties'             agreement                to        settle            the       amounts                 owing         during         the      July

27 hearing.                     On August                  24,         1993,             we issued                   an order             staying            the

contempt              proceedings                until            further                order       of this                Court         and ordering

responses               to     Turner's                petition.                         Jurgens              and         the       District              Court

filed           a joint            response                 to        the         writ        of      certiorari;                        Jurgens           also
filed        motions               for      attorney's                      fees,           costs,                 and      sanctions              and       the

District              Court         filed        a motion                   to        dismiss             the           petition           for     writ       of

certiorari.                       We initially                        review              Turner's                  petition              for      writ       of

certiorari.
           An         order         of      contempt                   is         final           and          conclusive                  and       not      an

appealable                 order:           a writ               of     certiorari                    is           the      proper             avenue        for

review           of     a contempt                   order.                 Section               3-l-523,                MCA; Milanovich                     v.

Milanovich                 (1982),             200 Mont.                    83,       87,         655 P.2d                959,          961.       We note

that       this         Court            has     made             an exception                       to            this       rule        in      marriage

dissolution                   proceedings                   and allowed                      review                of     contempt               orders       on

direct           appeal.             In     re Marriage                       of         Sessions                  (1988),           231 Mont.             437,

441,        753         P.2d         1306,            1308.                 This           exception,                      however,              does        not

prohibit              Turner         from        resorting                   to       the         usual            method,           a petition              for

writ       of     certiorari,                   to     obtain               review            of     the            contempt             order       issued

by the           District            Court            in     this           case.


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            On review,                           we determine                             whether                 the         court               issuing                 the            contempt

order             acted                    within                    its            jurisdiction                               and               whether                     substantial

evidence                 supports                       the           finding                 of         contempt.                         Doran           v.          City              Court           of

Whitefish                  (1989),                      239          Mont.            94,           98,          779         P.2d           68,      70.               In         this           case,

Turner             does                    not           challenge                          the             District                       Court's                    jurisdiction.

Indeed,             it         is          obvious                   from           the           limited                  record            before                  us      that           Turner

was        ordered                   to          pay            Jurgens                    $4,885                in         May,            1993,               and            by         his        own

admission,                     had           not          paid              that           full           amount              as       of         July           27,           1993.              Such

a      failure                 to          comply                 with              the           District                    Court's                    order              constitutes

contempt.                           See            Sessions,                         753            P.2d              at       1309;                In          re          Marriage                     of

Robbins              (1985),                      219           Mont.               130,            137-38,                  711       P.2d              1347,               1351.

            Because                   of         the           unique               procedural                        posture                of      this              case,               further

examination                          of          the           District                    Court's                    order            is         required.                            As        noted

above,            the          District                        Court             imposed                  four          separate                   counts                 of        contempt,

apparently                           for            the              four             separate                         amounts                     owing                  and             unpaid.

According                  to             the          District                     Court's                   order,                Turner                had             until             August

24,        1993,                to          purge                 himself                    of           contempt                    by           paying                   the           ordered

amounts.                   Turner                      filed               his       petition                     for         writ            of         certiorari                         before

Turner's                 allowed                       time            to          purge             himself                  of       the          contempts                            expired.

As      such,            the         District                        Court            did          not        have            an      opportunity                            to          consider

whether             Turner                      had,            in         fact,            purged                himself                   of       one         or         more            of       the

four        counts                   of         contempt.

            As       stated                      earlier,                        Turner               contends                      that           his           father,                    George

Turner,            has              paid           $2,000                   on      his           behalf              towards                the          amount                  he       owes          to

Jurgens.                       The           letter                  to          Jurgens'                    counsel                  also           seems                  to           indicate

that        the          amounts                       for           the           June            and        July            child               support                   obligations


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were paid          by Turner's               father.            From the record                    before           this      Court,
we cannot          ascertain           whether         those amounts were received                                  or accepted
by Jurgens.
         We conclude,                therefore,            that        it         is appropriate              for        Turner       to
submit          to the     District               Court     documentation                    of the         amounts           he,     or
someone on his behalf,                       has paid to Jurgens                          pursuant          to the District
Court's          orders.         After         Jurgens          has had opportunity                     to respond,                 the
District          Court        should        determine            which,            if     any,     of the          four      counts
of contempt           have been satisfied                       by the payments made, and issue                                     the
appropriate           orders.
         We emphasize                that      we are in no way concluding                                   that        Turner       is
not      subject          to    contempt             for        failure             to     abide      by       the         District
Court's          May 25,        1993,         order.            We conclude                 only     that,          in     light      of
the      manner      in which               the     separate           contempts                 were imposed               and the
confusion           over       payments             alleged           to      have been made prior                           to     the
contempt          hearing,           further         proceedings                  are appropriate               to determine
the extent           to which          one or more of the contempts                                  have been purged.
         The remaining                 issues        raised           in Turner's                petition           for     writ      of
certiorari           do not relate                  to the contempt                      order     and, therefore,                  are
not      properly          before           us.       Similarly,                  as we are           granting              limited
relief          to Turner,           Jurgens'          motions              for     attorney's          fees,            costs      and
sanctions          will        also     be denied.
           IT IS ORDERED:
           1.     Turner        is     granted            ten     (10)            days      from     the      date          of     this
Opinion          and Order            to     file      with        the        District             Court       proof         of     the
amounts paid              to date           towards        the total                amount owing to Jurgens;

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           2.       Jurgens               is     allowed             five     (5) days               from    the    date        of Turner's

submission                to     respond,               if         desired,          to    that         evidence:

           3.       The District                   Court             shall        then     determine              whether        Turner        has

purged           himself              of         any         of      the      four        counts            of     contempt            entered

against            him.         If        the     entire             obligation                has not           been    satisfied,            the
District            Court            shall         execute             the        contempt            sentence(s)              imposed.

           4.       JurgensI                   motion         for      attorney's                fees       and costs            is    DENIED:

           5.       Jurgens'                   motion         for      sanctions                is    DENIED:           and

           6.       The         District                 Court's              motion             to      dismiss           the        writ       of
certiorari                is     DENIED.
           The       Clerk           of        Court          is     directed             to     mail       a true            copy     of     this

Order        to the            Jimmie           Turner             personally,             to        counsel       of record            for    all

parties,             to        the        Honorable                 Michael          H.        Keedy        and     to     the        Clerk      of
Court        for      the        Eleven                                       District.
           DATED this                                        of     October,             1993.




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