                                           No. 02-646

                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2003 MT 263


IN RE THE MARRIAGE OF

LORNEY JAY DEIST,

               Petitioner and Appellant,

         and

CYNTHIA WYNN DEIST,

               Respondent and Respondent.



APPEAL FROM:          District Court of the Eleventh Judicial District,
                      In and for the County of Flathead, Cause No. DR-94-422B,
                      The Honorable Katherine R. Curtis, Judge presiding.


COUNSEL OF RECORD:

               For Appellant:

                      Shelly F. Brander, Kaufman, Vidal & Hileman, P.C., Kalispell, Montana

               For Respondent:

                      James D. Moore, Attorney at Law, Kalispell, Montana


                                                          Submitted on Briefs: April 17, 2003

                                                          Decided: September 25, 2003
Filed:


                      __________________________________________
                                        Clerk
Justice Jim Regnier delivered the Opinion of the Court.

¶1     The marriage between Appellant Lorney Jay Deist and Respondent Cynthia Wynn

Deist was terminated by dissolution. Cynthia subsequently filed a motion for an order to

show cause against Lorney in the Eleventh Judicial District Court, Flathead County, asserting

that Lorney should be held in contempt of court for failing to comply with the Dissolution

Decree. The District Court found that Lorney failed to comply with the Dissolution Decree,

but deferred determination of whether he was in contempt of court for sixty days. Lorney

appeals. We affirm the judgment of the District Court.

¶2     We restate the issues on appeal as follows:

¶3     1. Are Cynthia’s claims barred by laches?

¶4     2. Did the District Court err in requiring Lorney to pay ninety-two percent of

Courtney’s uncovered medical expenses?

¶5     3. Did the District Court abuse its discretion when it awarded attorney’s fees and

costs to Cynthia?

¶6     4. Is Cynthia entitled to recover attorney’s fees and costs on appeal?

                                       BACKGROUND

¶7     Lorney and Cynthia were married on June 16, 1972; they have two daughters,

Courtney and Lacy. On September 6, 1994, Lorney filed a petition for dissolution, seeking

to dissolve his marriage to Cynthia.

¶8     In early 1996, Cynthia was advised by her family dentist, Dr. Ken Madsen, that

Courtney had a unique dental problem involving an impacted cuspid. As a result, Courtney


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was referred to Dr. Michael Stebbins. Dr. Stebbins recommended that Courtney undergo

orthodontic treatment to address her dental problem. These facts were then made known to

Lorney. At the request of Lorney, Cynthia agreed to obtain a second opinion regarding

Courtney’s need for orthodontic treatment. In May of 1996, Courtney was examined by Dr.

Robert Windauer. Dr. Windauer concurred with the recommendations of Dr. Madsen and

Dr. Stebbins regarding Courtney’s dental problem. On May 8, 1996, Dr. Windauer arranged

a payment schedule for Courtney’s treatment. At Cynthia’s request, Dr. Windauer also

wrote a letter, explaining the treatment and the reasons for it. Both the payment plan and the

letter were provided to Lorney.

¶9     The District Court dissolved the marriage between Lorney and Cynthia on May 22,

1996. The Decree of Dissolution required that Lorney continue to provide health insurance

coverage for his children, and that he pay ninety-two percent of any uncovered “medical and

related expenses” incurred by his children.

¶10    The dental treatment referred to in Dr. Windauer’s letter was subsequently performed

by Dr. Windauer and Dr. James Ronald in August of 1996. The part of Dr. Windauer’s bill

not covered by Lorney’s insurance amounted to $2,660.00. The uninsured part of Dr.

Ronald’s bill was $363.65.

¶11    During Lorney and Cynthia’s marriage, Courtney was prescribed contact lenses to

correct a vision problem. In 1996, Courtney required replacement lenses, prompting Cynthia

to take Courtney to Wal-mart Vision Center to purchase replacement lenses. The part of the

bill from Wal-mart Vision Center not covered by Lorney’s insurance was $239.60.


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¶12     Approximately six years later, on March 11, 2002, Cynthia filed a motion for an order

to show cause, asserting that Lorney should be held in contempt of court for failing to

comply with the Decree of Dissolution. Specifically, Cynthia alleged that Lorney failed to:

(1) pay ninety-two percentage of Courtney’s uncovered medical expenses; and (2) pay child

support. On March 12, 2002, the District Court issued an order, requiring Lorney to show

cause as to why he should not be held in contempt of court.

¶13     Cynthia ultimately withdrew her claim for unpaid child support, leaving the remaining

claim against Lorney for Courtney’s uncovered medical expenses. The District Court

conducted a hearing on Cynthia’s motion on May 15, 2002. On September 4, 2002, the

District Court issued findings of fact and conclusions of law, ordering Lorney to reimburse

Cynthia for: (1) ninety-two percent of Courtney’s medical expenses; and (2) part of her

attorney’s fees and costs related to the contempt proceeding. The District Court further

stated that:

        A determination relative to whether [Lorney] has acted in contempt of this
        Court shall be deferred for sixty (60) days. In the event [Lorney] pays the
        sums ordered above, said contempt shall be dismissed. In the event [Lorney]
        fails to make such payment, [Cynthia] shall file with the Court an Affidavit,
        and the Court shall enter appropriate findings, conclusions and Order
        respecting said contempt.

Lorney appealed the District Court’s findings of fact and conclusions of law on October 2,

2002.

                                STANDARD OF REVIEW

¶14     We review a district court’s findings of fact to determine whether the findings are



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clearly erroneous. Kovarik v. Kovarik, 1998 MT 33, ¶ 20, 287 Mont. 350, ¶ 20, 954 P.2d

1147, ¶ 20. A finding is clearly erroneous if it is not supported by substantial evidence, if

the trial court misapprehended the effect of the evidence, or if our review of the record

convinces us that the district court made a mistake. Kovarik, ¶ 20. We review a district

court’s conclusions of law to determine whether the court’s interpretation of the law is

correct. In re Marriage of Kovash (1995), 270 Mont. 517, 521, 893 P.2d 860, 863.

¶15    This Court will not overturn a district court’s award of attorney’s fees absent an abuse

of discretion. In re Marriage of Steinbeisser, 2002 MT 309, ¶ 18, 313 Mont. 74, ¶ 18, 60

P.3d 441, ¶ 18. The test for abuse of discretion is whether the trial judge acted arbitrarily

without employment of conscientious judgment or exceeded the bounds of reason resulting

in substantial injustice. Steinbeisser, ¶ 18.

                                       DISCUSSION

                                          ISSUE 1

¶16    Are Cynthia’s claims barred by laches?

¶17    Laches is an equitable concept that applies to situations where there has been a delay

of such a duration as to render enforcement of the asserted right inequitable. Filler v.

Richland County (1991), 247 Mont. 285, 290, 806 P.2d 537, 540; Gue v. Olds (1990), 245

Mont. 117, 120, 799 P.2d 543, 545. However, laches is not simply a matter of elapsed time,

it is also a question of the inequity of permitting a claim to be enforced. Filler, 247 Mont.

at 290, 806 P.2d at 540. That is, for laches to be applied, the court must find lack of

diligence by the party against whom the defense is asserted and prejudice to the party


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asserting the defense. Gue, 245 Mont. at 120, 799 P.2d at 545. As such, each case must be

determined according to its own particular circumstances. Gue, 245 Mont. at 120, 799 P.2d

at 545.

¶18       Lorney argues that laches should bar Cynthia's claim for reimbursement of Courtney’s

uncovered medical expenses because Cynthia waited six years to file her motion. As noted

above, however, Lorney received a payment plan and a letter from Dr. Windauer in May of

1996. Lorney then submitted the plan to his insurance provider, and insurance coverage was

denied. Lorney was aware that Courtney received the recommended orthodontic treatment.

The Dissolution Decree specifically required Lorney to pay ninety-two percent of his

children’s uncovered medical expenses. Thus, during the span of six years, Lorney was

aware that: (1) Courtney underwent orthodontic treatment; (2) the treatment resulted in a bill

of $2,660.00 for Dr. Windauer’s services; (3) Dr. Windauer’s bill was not covered by his

insurance; and (4) he was obligated to pay a portion of Dr. Windauer’s bill. Despite his

awareness of the above, Lorney has not paid his percentage of Dr. Windauer’s bill. The

District Court determined that Lorney was not prejudiced by Cynthia's delay and therefore

the laches defense did not apply. We agree.

¶19       As we noted above, for laches to be applied, the court must find lack of diligence by

the party against whom the defense is asserted and prejudice to the party asserting the

defense. Gue, 245 Mont. at 120, 799 P.2d at 545. Although the six year hiatus between the

delivery of the medical care and initiation of the contempt proceeding is unusual, Lorney

simply suffered no prejudice. He was aware of the need for the treatment, received the bills


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in question in a timely fashion and submitted the bills to his insurance carrier. He later

learned that his insurance claim was denied, and yet failed to comply with his obligations

under the Decree. Therefore, we conclude that the District Court correctly determined that

laches did not bar Cynthia's claim for ninety-two percent of Dr. Windauer’s bill.

¶20    The same rationale applies regarding Courtney’s vision expenses. Lorney was aware

that Courtney wore contact lenses prior to the dissolution. In 1996, Courtney required

replacement lenses, resulting in a bill of $239.60 from Wal-mart Vision Center. Lorney does

not contend that he was unaware that this bill was incurred, but nevertheless argues that he

should not be responsible because of Cynthia’s tardy reimbursement claim. The District

Court determined that Lorney suffered no prejudice and we again agree. As such, laches

does not bar Cynthia’s claim for ninety-two percent of Wal-mart Vision Center’s bill.

¶21    On the other hand, the District Court treated Dr. Ronald's bill differently and correctly

so. Dr. Ronald assisted Dr. Windauer with Courtney's treatment, resulting in a bill of

$363.65. During testimony at the contempt hearing, it was clearly established that Lorney

paid the only bill he received from Dr. Ronald, and that, until Cynthia filed her motion on

March 11, 2002, he was unaware that an additional bill from Dr. Ronald existed. Therefore,

the District Court concluded that Cynthia’s claim for ninety-two percent of Dr. Ronald’s bill

was barred by laches. We agree. Lorney was not given a chance to pay his percentage of

Dr. Ronald’s bill, nor submit the bill to his insurance provider, because he was not aware that

such a bill existed. He suffered prejudice as a result of Cynthia’s decision to wait six years

to advise him that an additional bill from Dr. Ronald existed. Accordingly, Cynthia’s claim


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for ninety-two percent of Dr. Ronald’s bill is barred by laches.

                                         ISSUE 2

¶22    Did the District Court err in requiring Lorney to pay ninety-two percent of Courtney’s

uncovered medical expenses?

¶23    In addition to his laches argument, Lorney makes two related arguments as to why he

should not be responsible for Courtney’s medical bills. First, he contends that he is not

obligated to pay ninety-two percent of Dr. Windauer’s bill because he did not consent to

Courtney’s orthodontic treatment. Second, he alleges that orthodontics are cosmetic in

nature, and not a “medical related expense.”

¶24    Lorney supports his position with our decision in In re Marriage of Johnson, 1999

MT 254, 296 Mont. 311, 989 P.2d 356. In Johnson, the District Court entered a Decree

dissolving the marriage between Corliss Johnson and Melvin Johnson. The Decree required

that Melvin pay fifty-eight percent of his daughter Hayley’s uncovered medical, dental,

orthodontic, optical, hospital, and other medical related expenses.       Johnson, ¶¶ 5-6.

Sometime thereafter, Hayley began to exhibit behavioral problems and Corliss enrolled her

in the Anasazi Foundation, an outdoor wilderness treatment program for behavioral

problems. Corliss asked Melvin to pay for fifty-eight percent of the program; however

Melvin refused. Johnson, ¶ 7.

¶25    Corliss filed a motion, requesting that the District Court enforce the Dissolution

Decree and require Melvin to pay for fifty-eight percent of the Anasazi program. The

District Court found that the Anasazi program was not a “medical related expense,” as

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contemplated in the Dissolution Decree, and denied Corliss’ motion. Johnson, ¶ 8. On

appeal, we affirmed the District Court, concluding that substantial evidence existed to

support the District Court’s finding that the Anasazi program did not qualify as a “medical

related expense.” Johnson, ¶ 21.

¶26    Lorney asserts that, as in Johnson, Courtney’s orthodontic treatment does not qualify

as a “medical related expense,” as contemplated in his Dissolution Decree. However, the

two cases are distinguishable. In Johnson, the District Court based its finding that the

Anasazi program was not a “medical related expense” on the following three factors: (1) it

had no evidence that Hayley was sent to the program on a doctor’s referral; (2) a doctor’s

referral was not required to send a child to the program; and (3) the program was not covered

by Champus health insurance. In the instant case, while orthodontia was not covered by

Lorney’s insurance, three separate doctors recommended that Courtney undergo orthodontic

treatment to address her dental problem. In fact, when questioned about the necessity of

Courtney’s orthodontic treatment, Dr. Windauer specifically testified that Courtney’s

treatment was not cosmetic. Thus, we conclude that, under the circumstances of this case,

Courtney’s orthodontic treatment was a “medical related expense.”

¶27    Lorney further maintains that he is not obligated to pay for Courtney’s orthodontic

treatment, because he did not consent to such treatment. However, Lorney and Cynthia’s

Supplemental Order for Custody and Visitation states that Cynthia, as the parent with actual

custody of the children, is required to provide the children with “appropriate medical

examinations and treatments.” Nothing in the Supplemental Order requires Cynthia to obtain


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Lorney’s consent before providing such appropriate examinations and treatments. The

District Court determined that, under the circumstances of this case, the orthodontic

treatment performed on Courtney was reasonable. We agree. Therefore, Lorney’s consent

was not a prerequisite to Courtney obtaining orthodontic treatment.

¶28     Lorney made similar arguments regarding Courtney's optical needs. The District

Court properly disposed of these arguments as well.

                                           ISSUE 3

¶29     Did the District Court abuse its discretion when it awarded attorney’s fees and costs

to Cynthia?

¶30     The District Court conducted a hearing on Cynthia’s motion for an order to show

cause on May 15, 2002. At the conclusion of the hearing, the District Court stated that:

        I’m going to order [Lorney] to pay a portion of [Cynthia’s] attorney fees. I
        don’t know what the portion is yet. So leave a blank for the amount, and give
        me an affidavit . . . that lets me know how much [the fees] are, and I’ll fill it
        in. I’ll fill in the blank.

Cynthia’s attorney submitted an affidavit to the District Court, regarding his attorney’s fees,

on May 29, 2002. Cynthia’s attorney then served his affidavit on Lorney’s attorney on July

30, 2002. The District Court issued its findings of fact and conclusions of law, ordering

Lorney to reimburse Cynthia for a portion of her attorney’s fees and costs, on September 4,

2002.

¶31     On appeal, Lorney maintains that the District Court abused its discretion when it

ordered him to pay a portion of Cynthia’s attorney’s fees and costs. However, at the hearing



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on May 15, 2002, Lorney made no objection to the District Court’s statement that it intended

to order him to pay a portion of Cynthia’s attorney’s fees. Nor did Lorney object to the

affidavit of attorney’s fees submitted by Cynthia’s attorney. It is well stated that “we will

not put a district court in error for a ruling or procedure in which the appellant acquiesced,

participated, or to which the appellant made no objection.” In re Pedersen (1993), 261

Mont. 284, 287, 862 P.2d 411, 413. Therefore, in this case, we will not put the District

Court in error for awarding Cynthia a portion of her attorney’s fees and costs.

                                          ISSUE 4

¶32    Is Cynthia entitled to recover attorney’s fees and costs on appeal?

¶33    Cynthia asserts that, pursuant to Rule 32, M.R.App.P., she should be entitled to

recover the attorney’s fees and costs she incurred responding to this appeal. Rule 32,

M.R.App.P., provides that:

       If the supreme court is satisfied from the record and the presentation of the
       appeal in a civil case that the same was taken without substantial or reasonable
       grounds, such damages may be assessed on determination thereof as under the
       circumstances are deemed proper.

As a general rule, this Court will not impose sanctions under Rule 32, M.R.App.P., unless

an appeal is entirely unfounded and intended to cause delay, or unless counsel’s actions

otherwise constitute an abuse of the judicial system. Snow v. Snow, 2002 MT 143, ¶ 31, 310

Mont. 260, ¶ 31, 49 P.3d 610, ¶ 31.

¶34    In the instant case, there is no evidence that Lorney’s appeal was filed solely to cause

delay or to otherwise abuse the judicial system. Moreover, we cannot conclude that



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Lorney’s appeal was “taken without substantial or reasonable grounds,” as contemplated by

Rule 32, M.R.App.P. As such, we decline to impose sanctions under Rule 32, M.R.App.P.

Accordingly, Cynthia is not entitled to recover her attorney’s fees and costs on appeal.

¶35    For the foregoing reasons, the judgment of the District Court is affirmed.


                                                               /S/ JIM REGNIER


We Concur:

/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE




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