http://www.lawlibrary.mt.gov/dscgi/ds.py/Get/File-1983/98-691.htm




                                                                    No. 98-691

                     IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                               2000 MT 128

                                                                    300 Mont. 1

                                                                    2 P.3d 822



                                                  IN RE THE MARRIAGE OF


                                          CATHARINE GAY GROUNDS f/k/a

                                               CATHARINE GAY COWARD,

                                                         Petitioner/Appellant,

                                                                         v.

                                                 HAROLD MARK COWARD,

                                                      Respondent/Respondent.



                      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:

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                                                                For Appellant:

                                              Karen S. Renne, Denver, Colorado

                                                              For Respondent:

                                              Rachel Wright, Missoula, Montana



                                          Submitted on Briefs: December 2, 1999

                                                         Decided: May 9, 2000

                                                                       Filed:

                               __________________________________________

                                                                       Clerk

Justice William E. Hunt, Sr. delivered the Opinion of the Court.

¶1 Catharine Gay Grounds, f/k/a Catharine Gay Coward (Catharine), appeals from the
September 29, 1998 Order of the Montana Fourth Judicial District Court, Missoula
County, refusing to lift a stay on a contempt and commitment order it had issued in 1996
against Harold Mark Coward (Mark) for failing to pay required maintenance under the
parties' 1991 dissolution decree. Although Catharine raises several issues pertaining to the
District Court's contempt power, we conclude that under the authority of our recent
decision in Lee v. Lee, 2000 MT 67, 996 P.2d 389, 57 St.Rep. 308, we are without
jurisdiction to address the questions presented. Thus, we dismiss this appeal.

¶2 A party is permitted to appeal from a civil judgment or order "except when expressly
made final by law." Rule 1(b), M.R.App.P. In turn, § 3-1-523, MCA, provides:

         The judgment and orders of the court or judge made in cases of contempt are final
         and conclusive. There is no appeal, but the action of a district court or judge can be
         reviewed on a writ of certiorari by the supreme court or a judge thereof . . . .

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Section 3-1-523, MCA; see also State ex rel. Anderson v. District Court (1980), 188
Mont. 77, 79, 610 P.2d 1183, 1185 (holding that a writ of supervisory control may be
granted in contempt cases where the party is barred from using a writ of certiorari).

¶3 Notwithstanding the foregoing statutory mandate, this Court has for years recognized a
judicially created "exception" permitting direct appellate review of contempt orders in the
family law context, including marital dissolution proceedings. See In re Marriage of
Sessions (1988), 231 Mont. 437, 441, 753 P.2d 1306, 1308 (citing In re Marriage of Smith
(1984), 212 Mont. 223, 225-26, 686 P.2d 912, 914) (acknowledging the "family law
exception" to the writ of certiorari mandate in the context of dissolution of marriage
proceedings). Nevertheless, we have also recognized in the family law context, as a matter
of public policy, that "the best remedy to insure respect for the law and the orderly
progress of relations between family members split by dissolution is to give effect to the
contempt powers of the District Court." Milanovich v. Milanovich (1982), 201 Mont. 332,
336, 655 P.2d 963, 965.

¶4 Because discretionary review of a petition for certiorari or supervisory control is "far
more efficient and effective in upholding the 'family law' policy set forth in Milanovich,"
we sought in Lee to better define the family law direct appeal exception so that it could be
"properly narrowed" in light of the underlying public policy. Lee, ¶ 34. In Lee, we began
by noting that there are two distinct circumstances under which a court's contempt power
may be challenged: first, where the court acts without jurisdiction; and second, where the
court acts within its jurisdiction but in an arbitrary and tyrannical manner. See Lee, ¶ 35.
Since a writ of certiorari cannot be used to correct errors within a lower court's
jurisdiction, we explained that where a court finds one party in contempt but also acts
within its jurisdiction in adjudicating ancillary matters between the parties vis-à-vis the
contemptuous conduct (e.g., marital property division, maintenance, child custody,
visitation, etc.), the judgment must stand and may not be attacked by writ of certiorari.
Lee, ¶ 36. A writ of certiorari would be barred, under such circumstances, because the
lower court did not exceed its jurisdiction in issuing the ancillary order. See Lee, ¶ 36.

¶5 To illustrate, the contempt order at issue in Lee was reviewable on direct appeal under
the "family law exception" because of the nature of the judgment in that case. See Lee, ¶¶
15-16 (discussing the judgment in some detail). In Lee, although one party was obligated
pursuant to the underlying dissolution decree to transfer a horse and horse trailer to the
other party as part of the distribution of the marital estate, the obligated party had sold
those assets prior to final judgment while continuing to represent that she possessed them.

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Following appeal, the other party attempted to execute on the judgment and it was
discovered that the obligated party had already disposed of the assets. The district court
held the obligated party in direct contempt for her " 'deceitful omission' " concerning the
marital assets and her refusal to comply with the terms of the precedent dissolution decree.
Lee, ¶¶ 3, 15. Then, in the very same judgment, the district court calculated the money
judgment due under the dissolution decree, factoring in the cash value of the horse and
trailer and providing the other party with offsetting deductions to his maintenance
obligations under the decree. Lee, ¶¶ 3, 16.

¶6 Thus, where a court in a single judgment, issues an order of contempt against one party
and an ancillary order within its jurisdiction in determining the rights of the parties as a
result of the contemptuous conduct, a petition for writ of certiorari would necessarily be
denied. Lee, ¶ 37. Only this limited scenario triggers application of the family law
exception to the writ of certiorari mandate contained in § 3-1-523, MCA. We held in Lee,
therefore, that "the 'family law' direct appeal exception . . . applies when, and only when,
the judgment appealed from includes an ancillary order which effects [sic] the substantial
rights of the involved parties." Lee, ¶ 37. Conversely, "a lone contempt order, regardless
of the underlying law of the case, cannot be reviewed by this Court on direct appeal." Lee,
¶ 37.

¶7 Thus, the "threshold question" in this case becomes whether § 3-1-523, MCA, bars a
direct appeal by Catharine. In re Marriage of Harper (1988), 235 Mont. 41, 44, 764 P.2d
1283, 1285. We conclude that it does. As stated in Catharine's appellate brief, she is
appealing from the District Court's denial of her request to vacate its stay of a prior
contempt and commitment order issued against Mark in 1996. While Catharine is not
appealing from the court's initial finding of contempt, we determine that this direct appeal
falls outside of the family law exception as narrowed in Lee.

¶8 Here, Catharine is appealing from the District Court's refusal to enforce its contempt
power against Mark by lifting its stay on commitment and imprisoning him. As we have
suggested in the past, however, a court's contempt power "must be exercised to its fullest
extent to enable the court to discharge its high duty of administering justice between
parties whose rights are put in issue before it, or to enforce these rights after they have
been determined." State ex rel. Rankin v. District Court (1920), 58 Mont. 276, 288, 191 P.
772, 774 (emphasis added). Without going into the merits, it is clear that the District Court
has been discretionarily exercising its contempt power to properly enforce the parties'
rights as determined in the 1991 dissolution decree.

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¶9 The order appealed from goes purely to the District Court's contempt power; the court
did not adjudicate any ancillary matters falling within its continuing jurisdiction over the
rights of the parties as determined under the 1991 dissolution decree. Catharine appeals
from "a lone contempt order" and, therefore, her challenge "cannot be reviewed by this
Court on direct appeal." Lee, ¶ 37. Under the facts of this case, Catherine is precluded
from challenging the District Court's enforcement of its contempt power on direct appeal.
Rule 1(b), M.R.App.P.; § 3-1-523, MCA; Lee, ¶¶ 36-37.

¶10 As a result, this Court is without jurisdiction to reach the merits of Catherine's
challenge on direct appeal. It is well settled that jurisdictional defects may be raised at any
time by either party, as well as by the court sua sponte. See Thompson v. Crow Tribe of
Indians, 1998 MT 161, ¶ 12, 289 Mont. 358, ¶ 12, 962 P.2d 577, ¶ 12. We decline, sua
sponte, to entertain Catherine's direct appeal.

¶11 This appeal is dismissed without prejudice.



/S/ WILLIAM E. HUNT, SR.

We Concur:

/S/ KARLA M. GRAY

/S/ TERRY N. TRIEWEILER

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART




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