         IN THE SUPREME COURT OF THE STATE OF MONTANA


                           No. 83-117

THE STATE OF MONTANA,
ex rel. JAY VOORHIES,
      Relator,


DISTRICT COURT OF THE THIRD
JUDICIAL DISTRICT OF THE STATE
OF MONTANA, IN AND FOR THE
COUNTY OF DEER LODGE, AND THE
HONORABLE ROBERT J. BOYD,
presiding as District Judge.
      Respondents.


                        ORDER AND OPINION


      This Court accepted a petition for a writ of certiorari
from Jay Voorhies, relator, who contends that the Deer Lodge
County District Court exceeded its jurisdiction when it found
him   in willful contempt of a marital dissolution decree
providing that he must make the house payments "until the
minor children attain the age of 18 years or no longer reside
in the home. "   He argues the trial court failed to consider
his ability to pay.   We affirm the contempt order.
      The marital dissolution decree was entered by the Deer
Lodge County District Court on August 13, 1980.       Since then,
the father's failure to pay the house payments has triggered
two attempts by the wife to have him held in contempt and two
petitions by the father to modify the decree.   In addition to
the order requiring the father to make the monthly house
payments, the father was also ordered to pay $150 per month
child support for each child.
     In May 1981, the father stopped making house payments
and in September the son came to live with the father while
the daughter remained with the mother.         The mother asked that
the father be held         in contempt for failure to make the
monthly house payments a.nd the father moved to modify the
decree on custody.    After a hearing on both issues, the trial
court changed custody of the son from the mother to the
father, but also found that the father was in contempt for
failure to make the house payments.        In ruling on the house
payments, the trial court ordered the father to make them
because "the necessity of providing support and shelter for
his minor daughter remains constant."          Clearly, the father's
obl-igation under    the    decree   to make    house payments was
unaffected by his obtaining custody of the son.           The father
did not appeal from the order finding him in contempt or from
the order compelling him to continue making the monthly house
payments.
     Sixteen months later (in April 1982), the father again
stopped making the monthly house payments.         Ten months later
(in January 1983), the mother obtained an order for the
father to show cause why he had stopped making the monthly
house payments.     A hearing was set for March 2, 1983, and on
that date the father filed a response in which he asked that
the trial court modify the house payment provision of the
decree.      His petition alleged no facts occurred after the
last dissolution decree on which he based his request to
modify.     However, the father testified at the hearing that he
had recently bought some property and that the payments on
the property ($194.78 per month) prevented him from making
the house payment ($190 per month).       The trial court did not
accept    his   explanation,    finding   that     the   father   had
voluntarily incurred the additional obligation that prevented
him from making the house payment required in the dissolution
decree.      The trial court found the father in contempt for
failure to make the house payments.
       The father then petitioned this Court for a writ of
certiorari and we entered a stay order.        In arguing that the
trial court's contempt order should be set aside, the father
relies on both the first modification hearing and the second
modification hearing.     First, he contends that when his son
came to live with him he no longer had to make the house
payments.     However, the trial court ruled against him and
found in the first modification order that the father's duty
to make the house payment to support his daughter remained
constant, and was not affected by the fact that his son was
then living with him.      The father did not appeal from that
ruling and he cannot now raise it as a defense to the
contempt order.    Second, the father argues that at the second
hearing the trial court did not consider his ability to pay.
But the court found that the father had voluntarily incurred
other obligations and that he could not use those obligations
by which to relieve himself of the duty of making the monthly
house payments.      We   agree.   The father undertook these
voluntary obligations knowing that he had an obligation to
make   the monthly house payments.       His duty to make the
monthly house payments comes first.
       Because the District Court clearly had jurisdiction to
hold Jay E. Voorhies in willful contempt, the application for
a writ of certiorari is denied, and these proceedings are
dismissed.
       DATED this / w d a y of August, 1983.
LC.     s




      W e Concur:



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