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                                                               No. 98-002




                          IN THE SUPREME COURT OF THE STATE OF MONTANA




                                                            1998 MT 211N




                                                  IN RE THE MARRIAGE OF




                                                       KEREN W. WILSON,




                                                    Petitioner and Respondent,




                                                                     and




                                                        GARY V. WILSON,




                                                    Respondent and Appellant.




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                                                               APPEAL FROM: District Court of the Fourth Judicial
                                                                                 District,

                                               In and for the County of Missoula,

                                     The Honorable John W. Larson, Judge presiding.




                                                    COUNSEL OF RECORD:




                                                             For Appellant:




                               Paul Neal Cooley; Skelton & Cooley, Missoula, Montana




                                                            For Respondent:




                              Paulette C. Ferguson, Attorney at Law, Missoula, Montana




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                                                Submitted on Briefs: July 16, 1998




                                                      Decided: August 25, 1998

                                                                    Filed:




                                    __________________________________________

                                                                    Clerk

                    Justice W. William Leaphart delivered the Opinion of the Court.



¶ Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent but shall be
filed as a public document with the Clerk of the Supreme Court and shall be
reported by case title, Supreme Court cause number, and result to the State Reporter
Publishing Company and to West Group in the quarterly table of noncitable cases
issued by this Court.

¶ Gary V. Wilson (Gary) appeals from the decision of the Fourth Judicial District
Court, Missoula County, finding Gary in contempt for failure to pay arrearages in
child support, medical expenses and other debts attributed to Gary in the Wilsons'
dissolution decree. The District Court refused to redistribute marital property which
Gary contends was inappropriately distributed during the parties' 1994 dissolution.
The court found that Gary failed to show changed circumstances supporting his
motion for reduction of child support. As a result of these rulings, Gary contends
that he has been denied due process and seeks a hearing with a new judge. We affirm.



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                                           Factual and Procedural Background

¶ Keren W. Wilson (Keren) petitioned for dissolution in March 1991. The District
Court entered a final decree in May 1994, which was amended in July 1994. Gary
appealed to this Court from the amended decree. In 1995, this Court affirmed the
District Court's amended findings of fact, conclusions of law and decree. In February
1997, Keren moved the District Court for relief as a result of Gary's alleged failure to
comply with the decree. Specifically, Keren asserted that Gary had not paid child
support for several months and had not paid child support arrearages in excess of
$4,000. In addition, Gary had failed to pay medical and dental expenses for their
child, Sammie, in accordance with the decree. Finally, Keren claimed that Gary
resides on land, which was awarded to Keren, for which he has not paid rent. As a
result of Gary's failure to abide by the decree, Keren requested that he be held in
contempt.

¶ In the amended decree, Keren was awarded the Flathead County property and was
ordered to pay Gary $10,000 for the increased value of that property. Keren,
however, in her motion for contempt requested that in exchange for the past due
amounts owed by Gary, she be relieved from paying him the $10,000. In conjunction
with her motion for contempt, Keren filed an itemized list of Gary's outstanding
debts which amounted to approximately $10,000.

¶ Gary objected to Keren's motion contending that he and Keren had reached an
oral agreement which relieved him of the amounts owing under the decree. In
addition, Gary denied owing any rent. Gary requested that the District Court impose
sanctions against Keren for violation of Rule 11, M.R.Civ.P. In addition to objecting
to Keren's motions, Gary filed a motion to modify child support requesting that his
child support payments be reduced. Finally, Gary requested that certain personal
property, which he claimed was inappropriately distributed in the 1994 proceeding,
be redistributed by the District Court pursuant to Rule 60(b), M.R.Civ.P.

¶ The District Court held hearings on the pending motions. During the course of the
hearings, it became clear to Gary that the District Court was not addressing the
specific motions he had made. Toward the end of the hearing, Gary asked that his
motions be addressed. The District Court inquired as to whether Keren had had an
opportunity to respond to Gary's motions. Keren indicated that she had not. The
District Court ordered Keren to respond to Gary's motions. In addition, the court


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indicated that it "[would] schedule an additional hearing if necessary as soon as the
briefing [was] completed." (Emphasis added.) Thereafter, Keren filed responses to
Gary's motions to which Gary filed a reply document.

¶ The District Court entered its findings of fact, conclusions of law and order on
September 15, 1997 holding Gary in contempt and finding that Gary was deficient in
his payments to Keren in an amount exceeding $10,000. In addition, the court
determined that Gary failed to show changed circumstances warranting a
modification to child support, that Gary failed to make a showing of exceptional
circumstances allowing the court to redistribute assets from the 1994 property
distribution and that Gary's motions were vexatious, harassing and had no legal
basis.

¶ The District Court held, however, that Gary's contempt was purged by the court's
order satisfying Gary's outstanding debt to Keren by offsetting such debt with
Keren's obligation to pay Gary $10,000 under the decree. In addition, the court
denied Gary's motion to modify child support and ordered that Gary pay Keren's
attorney fees incurred in defending against Gary's vexatious, harassing motions.
Gary moved to set aside the District Court's findings, conclusions and order claiming
that he had been denied a hearing on his motions. During a hearing on Keren's
award of attorney fees, Gary made an offer of proof regarding the court's denial of a
hearing on his motions. The District Court refused his offer of proof. Gary appeals
from the District Court's findings, conclusions and order, and from its denial of a
hearing on his motions. We address four issues on appeal.

¶ 1) Did the District Court err in holding Gary in contempt for violating the terms of
the decree of dissolution?

¶ 2) Did the District Court deny Gary due process by failing to conduct a hearing on
his motions?

¶ 3) Did the District Court abuse its discretion in determining that Gary failed to
show changed circumstances warranting a reduction in child support payments?

¶ 4) Did the District Court err in denying Gary's request to redistribute property
and in awarding attorney fees to Keren?



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                                                                       I

¶ 1) Did the District Court err in holding Gary in contempt for violating the terms of
the decree of dissolution?

¶ Gary appeals from the District Court's order finding him in contempt for failure to
meet his obligations under the decree of dissolution. We have held that, although
contempt orders are final and not reviewable on appeal, except by writ of certiorari,
an exception is created for contempt orders in family law cases. Heath v. Heath
(1995), 272 Mont. 522, 527, 901 P.2d 590, 593.

¶ In Woolf v. Evans (1994), 264 Mont. 480, 483, 872 P.2d 777, 779, we held that "[c]
ontempt of court is a discretionary tool used to enforce compliance with a court's
decisions. The power to inflict punishment by contempt is necessary to preserve the
dignity and authority of the court." Woolf, 264 Mont. at 483, 872 P.2d at 779 (citing
In re Marriage of Jacobson (1987), 228 Mont. 458, 464, 743 P.2d 1025, 1028). In
reviewing contempt proceedings, we determine whether substantial evidence
supports the judgment of contempt, and whether the district court had jurisdiction
to issue the order. Marks v. First Judicial Dist. Court (1989), 239 Mont. 428, 430, 781
P.2d 249, 250; State ex rel. Foss v. District Court of Fourth Jud. Dist. (1985), 216
Mont. 327, 331, 701 P.2d 342, 345; Matter of Graveley (1980), 188 Mont. 546, 555,
614 P.2d 1033, 1039. Gary does not contend that the District Court lacked
jurisdiction to enter the contempt order. Therefore, we limit our review to whether
substantial evidence supports the judgment of contempt.

¶ The District Court determined that Gary failed to pay child support arrearages,
failed to pay medical and dental expenses for Sammie, failed to pay current child
support amounts and failed to pay credit card and tax debts, all in violation of the
decree of dissolution. In addition, the court found that Gary owed Keren past due
rent. In all, the District Court determined that Gary's obligations to Keren exceeded
$10,000. As a result of his failure to abide by the court's decree, the District Court
held Gary in contempt. However, the court determined that Gary's contempt was
purged by the $10,000 offset which Keren sought for monies she owed him on the
Flathead County property. We determine that there is substantial evidence
supporting the District Court's judgment of contempt. The District Court did not err
in holding Gary in contempt for failure to abide by the decree.



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                                                                       II

¶ 2) Did the District Court deny Gary due process by failing to conduct a hearing on
his motions?

¶ Gary seeks to invoke § 3-1-518, MCA, which he interprets as guaranteeing him
"the right to have a hearing when he is charged with contempt." Moreover, Gary
asserts generally his rights to due process pursuant to Article II, Section 17 of the
Montana Constitution which guarantees that life, liberty and property shall not be
taken without due process of law. Gary maintains that his motions were denied by
the District Court without a hearing and thus without due process of law.

¶ We determine, first, that the statutory provision which Gary seeks to invoke
regarding contempt does not apply to this case. Specifically § 3-1-518, MCA,
provides that a person who has been arrested or has appeared before a judge will be
entitled to a hearing on the contempt charge. Section 3-1-518, MCA, does not apply,
however, to a case such as this where Gary was neither arrested nor brought before a
judge on his contempt charges. Gary received no penalty or time of imprisonment as
a result of his failure to abide by the court's order. Moreover, we determine that
Gary received all the process that was due. The District Court held hearings on
Keren's contempt motion on June 4, 1997 and June 16, 1997. Gary was present at
both hearings, represented by counsel and given an opportunity to defend against the
contempt charges. Gary was not denied due process of law regarding the contempt
charges.

¶ In addition, we determine that Gary was not denied his constitutional right to due
process as a result of the District Court's failure to hold another hearing on the
matters at issue. In marital cases, as in other cases, the essential elements of due
process are notice and an opportunity to be heard. See In re Marriage of Robbins
(1985), 219 Mont. 130, 138, 711 P.2d 1347, 1352. As explained above, the District
Court held hearings on the pending motions on June 4, 1997 and again on June 16,
1997. During those hearings, Gary testified at length before the court, entered
exhibits in support of his claims, and fully participated in the proceedings. During
the course of those proceedings, the District Court realized that Gary, in responding
to Keren's motions, had presented motions of his own. As a result, the District Court
gave Keren an opportunity to respond to Gary's motions and indicated that "if
necessary" it would hold another hearing. The District Court did not hold a third


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hearing. Rather, it entered its findings of fact, conclusions of law and order based on
the evidence presented at the June 4 and 16 hearings, on the briefs of the parties, and
on the record.

¶ Gary now claims that he was denied due process as a result of the court's failure to
hold another hearing. Keren maintains that this issue is controlled by Rule 2(c), M.
Unif.Dist.Ct.R., which gives a district court discretion to determine whether to hold
hearings on particular matters. We agree that the District Court has discretion to
determine whether to hold a hearing or whether the court has sufficient evidence
before it to render a decision. The District Court clearly determined that it had
sufficient evidence to render decisions on the pending motions. The procedure
utilized by the District Court provided Gary with notice and an opportunity to be
heard. We determine that the District Court did not deny Gary due process by
failing to hold another hearing on the pending motions.

                                                                      III

¶ 3) Did the District Court abuse its discretion in determining that Gary failed to
show changed circumstances warranting a reduction in child support payments?

¶ Section 40-4-208(2)(b)(i), MCA, provides that a modification for support may only
be made "upon a showing of changed circumstances so substantial and continuing as
to make the terms unconscionable. . . ." The District Court determined that Gary
had failed to show changed circumstances allowing a modification to child support.
We review a district court's findings of fact and conclusions of law which underlie an
order for the modification of child support to determine whether the court's findings
of fact are clearly erroneous and whether its conclusions of law are correct. We
review the court's overall decision regarding modifications to child support to
determine whether the court abused its discretion. In re Marriage of Kovash (1995),
270 Mont. 517, 521, 893 P.2d 860, 863.

¶ In support of his motion to modify child support payments, Gary contended that
his income had decreased from $12,000 to $6,000. Gary did not indicate any reasons
for the decrease in his income or allege that the decrease was continuing. The District
Court, as a result, denied Gary's motion to modify child support finding that Gary
had failed to show changed circumstances so substantial and continuing as to make
the terms unconscionable. Specifically, the District Court found that Gary's recent


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purchase of land in Frenchtown and a settlement he received from Montana Rail
Link seemed to indicate that he was actually better off now than at the time of the
decree. We determine that the District Court's findings are not clearly erroneous.
The District Court did not abuse its discretion in denying Gary's motion for
modification to child support.

                                                                      IV

¶ 4) Did the District Court err in denying Gary's request to redistribute property
and in awarding attorney fees to Keren?

¶ The District Court found that Gary's motions were vexatious and harassing. As a
result, the court awarded Keren attorney fees incurred in defending against such
motions. Gary alleges on appeal that his motions were based on Rule 60(b), M.R.Civ.
P., that his motions were not vexatious and harassing, and that the court's award of
attorney fees was improper.

¶ Rule 60(b), M.R.Civ.P., allows the court, upon a finding of fraud and upon such
terms as are just, to reopen a judgment. Gary, in support of his motion for Rule 60
(b) relief, maintains that such relief applies to judgments dividing the marital estate.
Gary alleged that Keren perjured herself during earlier hearings regarding
particular items in the marital estate. Gary requested that, as a result of Keren's
perjurious statements, the court reopen the judgment pursuant to Rule 60(b), M.R.
Civ.P., and redistribute the marital estate. The District Court denied Gary's request
and found that Gary's motion was without merit, was vexatious and harassing and,
thus, awarded attorney fees to Keren.

¶ Pursuant to § 37-61-421, MCA, any attorney or party who unreasonably and
vexatiously multiplies the proceedings may be required to pay the attorney fees, costs
and expenses incurred by the opposing party. The language of the statute provides
discretion to the district court in determining when such fees are appropriate. We
determine that the District Court did not abuse its discretion in awarding attorney
fees to Keren as a result of Gary's motions.

¶ As a final matter, Gary asserts that the District Court improperly valued a
Mercedes automobile at $19,025 and that the actual value of that vehicle should have
been $1,925. The parties owned several automobiles at the time of dissolution. The


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court awarded a 1976 Mercedes automobile to Keren. Gary, however, sold that
automobile and was required to reimburse Keren for its value of $1,925. The District
Court, in its findings, listed Gary's outstanding debts to Keren. That list inaccurately
indicated that the Mercedes had a value of $19,025. Gary asserts that the valuation
by the District Court constitutes reversible error. We disagree.

¶ This error by the District Court was clearly clerical in nature. In addition, such
clerical error did not result in an erroneous finding by the District Court. The
District Court, in finding that Gary's debt to Keren exceeded $10,000 and in
offsetting such debt against the $10,000 that Keren was obligated to pay under the
decree, obviously valued the Mercedes at $1,925. If the court had actually valued the
vehicle at $19,025 as Gary contends, Gary's debt to Keren would have exceeded
$20,000. The District Court's clerical error in valuing the Mercedes automobile does
not constitute reversible error. Affirmed.




/S/ W. WILLIAM LEAPHART




We concur:



/S/ KARLA M. GRAY

/S/ JAMES C. NELSON

/S/ JIM REGNIER

/S/ WILLIAM E. HUNT, SR.



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