No


                                                               No. 00-472


                       IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        2001 MT 107N



                                                IN RE THE MARRIAGE OF:

                                               PAMELA ELLEN LONG, n/k/a

                                               PAMELA ELLEN MALINIAK,



                                                    Petitioner and Appellant,



                                                                      v.



                                                    EARL ROBERT LONG,



                                                 Respondent and Respondent.




                      APPEAL FROM: District Court of the Eleventh Judicial District,

                                              In and for the County of Flathead,

                                   The Honorable Ted O. Lympus, Judge presiding.




file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-472%20Opinion.htm (1 of 8)1/18/2007 9:01:26 AM
No


                                                   COUNSEL OF RECORD:



                                                            For Appellant:



                              Mark R. Sullivan, Attorney at Law, Kalispell, Montana



                                                           For Respondent:



                                C. Mark Hash, Hash & O'Brien, Kalispell, Montana




                                         Submitted on Briefs: February 16, 2001

                                                      Decided: June 19, 2001



                                                                   Filed:




                                __________________________________________

                                                                   Clerk



                  Justice Terry N. Trieweiler delivered the Opinion of the Court.

  ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-472%20Opinion.htm (2 of 8)1/18/2007 9:01:26 AM
No


  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.

  ¶2 The Petitioner, Pamela Long, filed a motion for contempt and a motion to
  modify her decree of dissolution in the District Court for the 11th Judicial District in
  Flathead County on September 13, 1993. The District Court granted both motions.
  The Respondent, Earl Long, who did not attend the hearing, filed a motion to set
  aside the order. The Court did not respond to the motion and Earl appealed to this
  Court. We reversed and remanded the case on December 23, 1994, for a rehearing
  because no record existed from the first hearing. After a second hearing, the District
  Court denied both motions. Pamela appeals from the District Court orders. We
  affirm the orders of the District Court.

  ¶3 Pamela raises two issues on appeal:

  ¶4 (1) Did the District court err when it denied Pamela's motion for contempt?

  ¶5 (2) Did the District Court err when it denied Pamela's motion to modify the
  decree?

                                              FACTUAL BACKGROUND

  ¶6 Pamela and Earl Long's marriage was dissolved on April 16, 1985, in the
  District Court for the 11th Judicial District in Flathead County. The decree of
  dissolution required that Earl pay child support for their three children in the
  amount of $100.00 per month. Earl was unemployed at the time of the dissolution.
  The court ordered Earl to notify the court within two weeks after obtaining
  employment so that the court could reevaluate his child support obligation.

  ¶7 After the original decree was entered, Pamela applied for and began receiving
  Aid for Families with Dependent Children. Earl received a letter from the Flathead
  County Support Division directing that he make all further child support payments
  to the Department of Revenue, Child Support Enforcement Division Program, in

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-472%20Opinion.htm (3 of 8)1/18/2007 9:01:26 AM
No


  Helena, Montana. It also informed him to make all inquiries through them in the
  future. Earl moved to Seattle, Washington, and found employment with the Boeing
  corporation. The Child Support Enforcement Division subsequently assigned his
  case to the State of Washington Department of Social and Health Services, Office
  of Support Enforcement. After his move he did not notify the district court that he
  had obtained employment. However, he did provide all financial and employment
  information to either the Montana Child Support Division or the Washington Office
  of Support Enforcement.

  ¶8 On September 14, 1993, Pamela filed a motion to modify the dissolution decree
  and a motion for contempt for Earl's failure to notify the court regarding his
  employment status. Pamela included an affidavit attesting to her knowledge that
  Earl had been working for Boeing for at least five years. Earl did not attend the
  hearing. Instead, he sent a response along with financial information directly to the
  court. However, the court chose not to consider that information because Pamela's
  attorney did not receive a copy of it prior to the hearing.

  ¶9 The hearing occurred on March 16, 1994. The District Court granted both
  motions. The Court held that Earl owed $32,044 for past due child support and
  modified the original decree to require that Earl pay $756 per month for child
  support in the future. The Court also required that Earl pay Pamela's attorney's fees
  and costs. Earl filed a motion to set aside the judgment, pursuant to Rule 60, M.R.
  Civ.P. However, Earl's motion was not addressed by the Court within 45 days and
  was, therefore, deemed denied as a matter of law. Earl then appealed to the
  Montana Supreme Court. We concluded that we were unable to decide the merits of
  the appeal without a transcript or trial record. Therefore, we reversed and remanded
  the case to the District Court for a rehearing.

  ¶10 After the rehearing, at which both parties were present, the District Court
  denied both motions.

                                                           DISCUSSION
                                                            ISSUE ONE

  ¶11 Did the District court err when it denied Pamela's motion for contempt?


file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-472%20Opinion.htm (4 of 8)1/18/2007 9:01:26 AM
No


  ¶12 Unlike contempt orders in other types of cases which are only reviewable by a
  writ of certiorari, Montana has carved out an exception in family law cases at §3-1-
  523, MCA. See In Re Marriage of Baer, 1998 MT 29 ¶42, 287 Mont. 322, ¶42, 954
  P.2d 1125 ¶42. In Lee v. Lee, 2000 MT 67, 229 Mont. 78, 996 P.2d 389, we further
  clarified the law in this area. We held in Lee, that "the 'family law' direct appeal
  exception established in our case law applies when, and only when, the judgment
  appealed from includes an ancillary order which effects the substantial rights of the
  involved parties." Lee, ¶37. The Montana Legislature recently updated §3-1-523,
  MCA (2001) in order to reflect this clarification. We conclude that the District
  Court's denial of contempt contained an ancillary order - the denial of Pamela's
  motion to require a retroactive increase in child support, and therefore, the direct
  appeal review is applicable here.

  ¶13 The District Court determined that pursuant to §3-1-501, the motion for
  contempt must fail for a lack of jurisdiction. However, Pamela contends that the
  contempt motion should be determined pursuant to §40-5-601, MCA, which
  provides for civil contempt for nonsupport in child support cases, and therefore the
  District Court erred when it relied on §3-1-501 to conclude that the jurisdictional
  requirements were not met. Pursuant to §40-5-601, a defendant is in contempt when
  he or she has been ordered by a court to pay support, the defendant is aware of the
  order, and then fails to pay the court-ordered child support. §40-5-601, MCA. Here,
  the support order in the dissolution decree required that Earl pay $100.00 every
  month. According to the record, Earl complied with the order, and therefore is not
  in contempt of court pursuant to §40-5-601, MCA.

  ¶14 However, Earl failed to notify the court that he found employment despite a
  court order requiring that he do so. Accordingly, we conclude that the District Court
  correctly considered Pamela's motion pursuant to §3-1-501(1)(e) which provides
  that a person can be held in contempt for "disobedience of any lawful judgment,
  order or process of the court." Pursuant to §3-1-512, an affidavit setting forth the
  facts constituting the contempt must be presented to the court. Although Pamela
  included an affidavit with her motion for contempt, the affidavit did not set forth
  facts which when considered alone constituted contempt. Pamela's affidavit states
  only that Earl had been employed since 1989 but that fact alone does not constitute
  contempt of the original decree. Pamela failed to articulate that Earl's employment
  status violates the court order because of his failure to notify the court. We,

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-472%20Opinion.htm (5 of 8)1/18/2007 9:01:26 AM
No


  therefore, conclude that the District Court did not err when it held that Pamela's
  affidavit was inadequate. However, if this procedural deficiency is excused in order
  to reach the merits of Pamela's claim, the result is the same.

  ¶15 The District Court also found that the "[r]espondent is not in contempt of this
  Court's Order because he did comply with the intent and spirit thereof." The record
  demonstrates that soon after the dissolution was final, Pamela started receiving
  AFDC. The State of Montana sent Earl a letter in which he was instructed to
  communicate with them directly on all child support matters and to send all child
  support payments to them. When he moved to Washington, the State of Washington
  took over the receipt of his child support payments. He testified that he informed
  the state office of his address and employment and offered to send payments
  directly but the child support office preferred to garnish his wages. While Earl may
  not have literally complied with the court's directive, his omission is understandable
  in the face of inconsistent subsequent instruction from another branch of state
  government. According to the record, Earl was current in his child support
  payments. In addition, Earl provided his employment information to what he
  thought was the proper agency.

  ¶16 We agree with the District Court that Earl complied with the spirit and intent
  of the decree and should not be held in contempt for his failure to notify the court
  after obtaining employment. Accordingly, we conclude that the District Court acted
  within its jurisdiction and that substantial evidence supports the District Court's
  decision to deny Pamela's motion for contempt.

                                                            ISSUE TWO

  ¶17 Did the District Court err when it denied Pamela's motion to modify the decree?

  ¶18 We review decisions regarding the modification of child support to determine
  whether the District Court abused its discretion. In re Marriage of Kovash (1995),
  270 Mont. 517, 521, 893 P.2d 860, 863.

  ¶19 Pamela contends that the District Court erred by not granting her motion to
  require a retroactive increase in child support payments. Since the original decree
  ordered Earl to notify the Court once employed so that the Court could modify child

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-472%20Opinion.htm (6 of 8)1/18/2007 9:01:26 AM
No


  support, Pamela contends that a retroactive increase in child support payments
  would have conformed with, and not modified the original decree. Earl contends,
  and the District Court agreed, that these would be impermissible child support
  arrearages pursuant to §40-4-208, MCA. The original dissolution decree provided
  child support payments in the amount of $100.00. Although the decree included a
  provision requiring that Earl notify the court upon obtaining employment, the child
  support amount could not be modified absent a motion asking the court to do so.
  Therefore, §40-4-208, MCA, is applicable.

  ¶20 Pursuant to §40-4-208(1),"[e]xcept as otherwise provided in 40-4-201(6), a
  decree may be modified by a court as to maintenance or support only as to
  installments accruing subsequent to actual notice to the parties of the motion for
  modification." This statutory provision must be strictly construed. In re Marriage of
  Petranek (1992), 255 Mont. 458, 460, 843 P.2d 784, 786. According to In re
  Marriage of Widalm, "a retroactive child support obligation cannot be imposed in
  the face of a clear statutory mandate to the contrary and without any justification
  which might serve to override that mandate." 279 Mont. 97, b101-102, 926 P.2d
  748, 750. Pamela failed to offer any justification to override this clear statutory
  mandate. In fact, Pamela provided no reasonable explanation for not moving for
  modification as soon as she became aware of Earl's employment.

  ¶21 Therefore, we conclude that the District Court did not abuse its discretion
  when it denied Pamela's motion to modify the dissolution decree.

  ¶22 We affirm the judgment of the District Court.

/S/ TERRY N. TRIEWEILER




We Concur:



/S/ KARLA M. GRAY

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-472%20Opinion.htm (7 of 8)1/18/2007 9:01:26 AM
No




/S/ JIM REGNIER

/S/ PATRICIA COTTER



/S/ JAMES C. NELSON




file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-472%20Opinion.htm (8 of 8)1/18/2007 9:01:26 AM
