                                                                                                 01/30/2018


                                           DA 17-0367
                                                                                             Case Number: DA 17-0367

                   IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2018 MT 15N



IN RE THE MARRIAGE OF:

JENNA C. HOBART, n/k/a JENNA C. KAVANAUGH,

               Petitioner and Appellee,

         And

JEFFREY V. HOBART,

               Respondent and Appellant.



APPEAL FROM:            District Court of the Eleventh Judicial District,
                        In and For the County of Flathead, Cause No. DR-15-878 (C)
                        Honorable Heidi Ulbricht, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                        David F. Stufft, Attorney at Law, Kalispell, Montana

                 For Appellee:

                        Katherine P. Maxwell, Law Office of Katherine P. Maxwell, PLLC,
                        Kalispell, Montana



                                                     Submitted on Briefs: November 29, 2017

                                                                 Decided: January 30, 2018


Filed:

                        __________________________________________
                                          Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Jeffrey Hobart (Hobart) appeals a decision by the Eleventh Judicial District Court

denying Hobart’s Motion to Set Aside Order of Contempt. We affirm.

¶3     On September 7, 2016, Hobart and Jenna Kavanaugh (Kavanaugh) signed a

Parenting Plan and Separation and Property Settlement Agreement (Agreement). The

Agreement required Hobart to pay Kavanaugh $7,000 within ten days of the receipt of his

annuity in November 2016 for family support. The Agreement awarded Kavanaugh

possession of a 2015 Toyota RAV4 that the couple began to lease shortly before their

divorce. The Agreement required that Kavanaugh make the monthly lease payments of

$374.90.

¶4     Kavanaugh could not keep up with the monthly lease payments for the RAV4. On

October 13, 2016, Hobart went to Kavanaugh’s residence and picked the vehicle up along

with its documentation. On December 7, 2016, Hobart’s counsel wrote to Kavanaugh’s

counsel, saying Hobart did not want to make the lease payments and would deliver the

car back to Kavanaugh the following day along with the $7,000 family support payment.

Hobart failed to do so and continued to drive the vehicle and make lease payments.


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¶5     On January 11, 2017, Kavanaugh filed a Motion for Contempt and to Modify

Decree.   Along with the provision regarding the RAV4, Kavanaugh also asked the

District Court to modify the Agreement to allocate $2,229.14 that had accumulated in an

escrow account to cover insurance and property taxes for the family home. Because the

loan was in Hobart’s name, the escrow balance was refunded to him after closing. These

funds were not mentioned in the original Agreement. Kavanaugh’s counsel certified that

she mailed the motion to Hobart’s counsel on January 11, 2017. Hobart did not respond

to the motion.

¶6     On January 17, 2017, the District Court issued an Order to Show Cause requiring

Hobart to appear on February 8, 2017, and show cause why he should not be found in

contempt for failing to pay family support. Hobart did not appear at the show cause

hearing on February 8, 2017. Hobart’s attorney alleges that he did not appear because he

was ill and did not know about the hearing. Further, the attorney acknowledged he did

not advise his client because during this time, the attorney had stayed home and did not

check the online District Court calendar.

¶7     On February 13, 2017, the District Court issued its Findings of Fact, Conclusions

of Law and Order on Contempt, as well as its Order Modifying Decree. The District

Court held Hobart in contempt for not paying Kavanaugh $7,000 in family support. The

District Court modified the Agreement, making Hobart responsible for the lease

payments on the RAV4 and ordered Hobart to pay Kavanaugh half of the escrow amount.

The District Court’s minute entries following the February 8, 2017 show cause hearing

indicate that the court ruled Hobart could purge the contempt by paying the full amount

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of family support within thirty days. Hobart did not pay the amount due within thirty

days, and he filed a Motion to Set Aside Order of Contempt on February 13, 2017.

¶8    Hobart’s counsel argued that the contempt order should be vacated because his

conduct constituted “excusable neglect” pursuant to M. R. Civ. P. 60(b)(1) and (b)(6).

Hobart alleged that the contempt order and modifications were the result of Kavanaugh

“and her attorney failing to inform the Court what was ongoing” and that the District

Court’s finding was not supported by substantial evidence. On May 1, 2017, the District

Court denied Hobart’s motion. On June 1, 2017, the District Court ordered Hobart to pay

Kavanaugh $2,152 for attorney fees and costs pursuant to an attorney fee provision

within the Agreement.

¶9    Montana law does not provide for an appeal from a contempt order; the exclusive

method of review in civil proceedings is by application for writ of certiorari. Section

3-1-523(1), MCA. However, a party may appeal a contempt judgment or order in a

family law proceeding when the judgment or order appealed from includes an ancillary

order that affects the substantial rights of the parties involved. Section 3-1-523(2), MCA.

If the family law exception applies, this Court reviews contempt orders to first determine

whether the district court acted within its jurisdiction and second whether there is

evidence to support the finding of contempt. Marez v. Marshall, 2014 MT 333, ¶ 23, 377

Mont. 304, 340 P.3d 520.

¶10   The District Court’s order that Hobart appeals from was not a default judgment.

Although both parties make default judgment arguments on appeal, the District Court’s

Order on Respondent’s Motion to Set Aside Order of Contempt makes it clear that its

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decision was not one of default. A review of the record shows that the District Court

found Hobart in contempt. Therefore, we will not address the parties’ default judgment

arguments.1

¶11    The District Court’s Contempt Order falls within the family law exception under

§ 3-1-523(2), MCA. The record reflects that the District Court’s orders following the

show cause hearing not only held Hobart in contempt, but also modified the Agreement.

The District Court’s Contempt Order was not a “lone contempt order” because it also

made Hobart responsible for the lease payments on the RAV4 and required him to pay

Kavanaugh $1,114.57 of the escrow amount.               See Marez, ¶ 25 (holding the district

court’s Findings of Fact, Conclusions of Law, and Order on Motions addressed nine

separate motions, making the contempt order appealable). In this case we will consider

the appeal because the order included an ancillary order affecting the substantial rights of

the parties.

¶12    The District Court acted within its jurisdiction. Hobart cites to Rule 2 of the

Eleventh Judicial District Court Rules for Flathead County, which states “No matter may

be set for Law and Motion until the motion and all documents relevant to the matter to be

heard have been filed and any proposed Order or Decree has been submitted to the Clerk

of Court 48 hours in advance.” Hobart argues that his due process rights were violated

       1
          Historically, this Court has made it clear that an attorney’s neglect and lack of diligence
does not satisfy the excusable neglect criteria of M. R. Civ. P. 60(b). In re Marriage of Castor,
249 Mont. 495, 817 P.2d 665 (1991); Watson v. Fultz, 239 Mont. 364, 782 P.2d 361 (1989);
Griffin v. Scott, 218 Mont. 410, 710 P.2d 1337 (1985); see Detienne v. Sandrock, 2017 MT 181,
388 Mont. 179, 400 P.3d 682 (holding that an attorney’s conduct was not excusable neglect
when he failed to submit a timely answer to the complaint and failed to promptly move to have
the default set aside).
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because Kavanaugh failed to comply with Rule 2 and that the rule is jurisdictional.

However, his due process rights were not violated and Rule 2 is procedural rather than

jurisdictional. Further, Hobart’s jurisdictional analysis lacks authority. It is not this

Court’s obligation to conduct legal research on appellant’s behalf, to guess as to his

precise position, or to develop legal analysis that may lend support to his position. State

v. Hicks, 2006 MT 71, ¶ 22, 331 Mont. 471, 133 P.3d 206. The District Court had

jurisdiction when it held Hobart in contempt. See In re Marriage of Ensign, 227 Mont.

357, 361, 739 P.2d 479, 482 (1987) (holding a court has continuing jurisdiction over

matters of maintenance, support, property disposition, and child custody).

¶13    The District Court’s Contempt Order is supported by evidence. Hobart alleges

that the District Court only found him in contempt after it modified the Property

Settlement Agreement, which relied upon misinformation provided by Kavanaugh’s

attorney, and not substantial evidence. However, the District Court ordered that the

Agreement required Hobart to pay Kavanaugh family support in the amount of $7,000

within ten days of receiving his annuity, which was due to him on November 29, 2016.

Hobart failed to pay Kavanaugh $7,000 by December 9, 2016. Hobart failed to respond

to Kavanaugh’s January 11, 2017 motion to hold Hobart in contempt, and he did not seek

a continuance or appear at the February 8, 2017 show cause hearing. Moreover, the

District Court allowed Hobart to purge the contempt by paying within thirty days.

Evidence in the record supports the District Court’s Order of Contempt.

¶14    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. In the opinion

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of the Court, the case presents a question controlled by settled law or by the clear

application of applicable standards of review.

¶15   The District Court orders on contempt and modifying the decree are affirmed.



                                                 /S/ MIKE McGRATH


We Concur:


/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR




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