Marriage of Grenfell ( 1982 )

No. 82-155
I N THE S U P R E P ! COURT O F THE S T A T E O F MONTANA
1982
I N RE THE MARRIAGE O F :
L I L L I A N A. GRENFELL,
Appellant
vs .
ALLEN W. GRENFELL,
Respondent,
and
I N RE THE MARRIAGE O F :
ALLEN W. GRENFELL,
vs .
L I L L I A N A. GRENFELL.
A p p e a i from: D i s t r i c t C o u r t of t h e T h i r d J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of D e e r Lodge
H o n o r a b l e M a r k P. S u l l i v a n , Judge p r e s i d i n g .
C o u n s e l of R e c o r d :
For A p p e l l a n t :
K n i g h t , Dahood, McLean & E v e r e t t ; David M. M c L e a n ,
Anaconda, Montana
For R e s p o n d e n t :
R. L e w i s B r o w n , Jr., B u t t e , Montana
-
S u b m i t t e d on b r i e f s : August 12, 1982
Decided: October 4, 1982
Filed: o t t a - 1982
% m g . * h
Clerk
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
Lillian A. Grenfell appeals from an order of the Deer
Lodge County District Court holding that Allen W. Grenfell
was not in contempt of court and changing the payment
schedule on support and maintenance. We affirm.
In 1976, Lillian and Allen filed suit against each
other for divorce. The actions were consolidated. At the
divorce hearing the evidence disclosed a $3,806.92 spending
spree by Lillian following the parties' separation with the
indebtedness charged to Allen. Lillian had also forged
Allen's name to an income tax refund check and spent the
$1992. Allen had been paying $450 per month in temporary
child support and maintenance, which he reduced to $300 per
month following the spree.
On March 3, 1977, the District Court issued findings
of fact and conclusions of law and entered a decree dissolv-
ing the marriage. The court found Lillian liable to Allen
for the shopping spree and the tax refund to the extent of
$5,798.92. The court ordered Lillian to repay Allen by
transferring to him stock worth $5,798.22 from her half of
the stock in the family corporation. The court also ordered
Allen to pay $375 per month as child support and mainten-
ance, stating that such a reduction would enable him to
liquidate "the debts Mrs. Grenfell showered upon him . . ."
over the course of four or five years. The decree was modi-
fied on July 28, 1977.
On appeal of that order, this Court held that the
District Court had improperly penalized appellant twice for
the debts she had accumulated--first by ordering her to give
a portion of her corporate stock shares to Allen and again
by r e d u c i n g t h e c h i l d s u p p o r t and m a i n t e n a n c e t o b e p a i d by
Allen. G r e n f e l l v. G r e n f e l l ( 1 9 7 9 ) , 1 8 2 Mont. 229, 233, 596
P.2d 205, 207.
On remand t h e D i s t r i c t C o u r t h e l d a h e a r i n g t o a d j u s t
t h e p r o p e r t y r i g h t s between t h e p a r t i e s . The s t o c k i n t h e
f a m i l y c o r p o r a t i o n was o n c e a g a i n e q u a l l y d i v i d e d between
t h e p a r t i e s and s u p p o r t a n d m a i n t e n a n c e p a y m e n t s were r a i s e d
t o $450 p e r month.
Allen has failed t o pay a n y of the debts from the
shopping spree, and L i l l i a n h a s b e e n s u e d by m o s t o f the
creditors involved. She r e q u e s t e d t h a t Allen be held in
c o n t e m p t of court. The D i s t r i c t C o u r t h e l d t h a t A l l e n h a d
n o t v i o l a t e d t h e p r o v i s i o n s of t n e amended d i v o r c e d e c r e e
and was therefore not in contempt of any order of the
D i s t r i c t C o u r t and o r d e r e d A l l e n t o make s u p p o r t and main-
t e n a n c e p a y m e n t s on o r b e f o r e t h e 2 5 t h d a y o f e a c h month.
Two i s s u e s a r e r a i s e d on a p p e a l :
(1) Whether Allen violated the provisions of the
amended d i v o r c e d e c r e e and s h o u l d h a v e b e e n h e l d i n c o n t e m p t
of c o u r t ; and
(2) Whether t h e D i s t r i c t C o u r t e r r e d i n m o d i f y i n g t h e
schedule for child support and maintenance payments sua
-
sponte?
For t h i s C o u r t t o r e v e r s e t h e D i s t r i c t C o u r t , L i l l i a n
rnust d e m o n s t r a t e t h a t t h e r e was a c l e a r a b u s e of d i s c r e t i o n
by t h e D i s t r i c t C o u r t , t h a t t h e r e is a c l e a r p r e p o n d e r a n c e
of evidence against t h e D i s t r i c t Court's findings, and s h e
must overcome the presumption that the judgment of the
District Court is c o r r e c t . Jensen v. Jensen ( 1 9 7 9 ) , 182
Mont. 472, 474, 597 P.2d 7 3 3 , 734.
The D i s t r i c t C o u r t h a s t h e power t o compel o b e d i e n c e
t o its orders, s e c t i o n 3-1-111(4), MCA, and t o p u n i s h d i s -
obedience of an order i n a cause b e f o r e it a s contempt of
court, s e c t i o n 3-1-501(e), MCA. S e e a l s o , Board o f Commis-
s i o n e r s of Flathead County v. Eleventh Judicial District
C o u r t ( 1 9 7 9 ) , 1 8 2 Mont. 463, 470, 597 P.2d 728, 732; I n Re
Nelson e t a l . ( 1 9 3 6 ) , 1 0 3 Mont. 43, 52, 60 P.2d 365, 369,
and c a s e s c i t e d therein. The D i s t r i c t C o u r t i s n o t , how-
e v e r , bound t o f i n d a c o n t e m p t o f c o u r t w h e r e t h e f a c t s d o
not support w i l l f u l disobedience of a c o u r t order. Williams
v. Budke (1980), Mont. , 606 P.2d 515, 518, 37
St.Rep. 228, 232; S t a t e v. D i s t r i c t Court of Third J u d i c i a l
D i s t r i c t ( 1 9 3 8 ) , 1 0 7 Mont. 1 8 5 , 8 1 P.2d 692.
Here, the District Court had before it the agreed
facts a s p r e s e n t e d by c o u n s e l f o r b o t h p a r t i e s , the tran-
script of the modification hearing on remand, and the
previous orders, findings of fact, and conclusions of law
entered i n t h i s action. The r e c o r d o n a p p e a l s u p p o r t s t h e
D i s t r i c t C o u r t ' s d e t e r m i n a t i o n t h a t A l l e n was n o t i n v i o l a -
t i o n o f t h e d i v o r c e d e c r e e a s amended.
The decree of dissolution was entered on March 3,
1977. On July 28, 1977, t h e f i n d i n g s of fact, conclusions
of law a n d s u p p o r t i n g o p i n i o n o f the District C o u r t were
m o d i f i e d and supplemented. I n t h e d e c r e e and i t s s u p p o r t i n g
findings, conclusions and opinion, the District Court
plainly indicated that L i l l i a n owed A l l e n p r o p e r t y t o the
e x t e n t of t h e $5,798.92 t o t a l of t h e shopping s p r e e and t h e
tax refund check appropriated by Lillian. The decree
ordered L i l l i a n t o transfer s t o c k w o r t h $5,798.92 t o Allen
t o balance the property r i g h t s of t h e p a r t i e s . The f i n d i n g s
of fact and the decree's supporting opiniorl indicated that
Allen was to pay three specific bills that totaled less than
$200 "as he [was] able" and provided as the rationale for
the lowering of the child support and maintenance payments
to $375 per month that this would give Allen the opportunity
to pay off the bills Lillian had "showered upon him" over
four to five years.
The court noted in the findings of fact that Lillian's
shopping spree had plunged Allen so far into debt that
creditors were beginning to sue him on the accounts. The de-
cree did not, however, order Allen to assume responsibility
for the debts.
On appeal this Court held that the reduction in child
support and maintenance for the purpose of allowing Allen to
liquidate the debts constituted a second penalty to Lillian
since she had already been required to transfer stock to
Allen in order to balance the property award. Upon remand,
the District Court divided the stock equally between the
parties and then proceeded to raise the child support and
maintenance awards on the basis of changed circumstances.
'The record on appeal does not support Lillian's contention
that tne raise in the maintenance and support award was in
part due to the District Court's consideration of the
previous reduction in child support and maintenance for the
purpose of allowing Allen to liquidate the debts. The
findings and conclusions of the court in support of the
amended decree make no reference to the previous reduction.
They base the raise in the award solely upon a change in
circumstances. Again, the decree did not order Allen to pay
the debts.
The record demonstrates an awareness on the part of
the original trial court of the likelihood that Allen would
be sued for collection on the accounts and that therefore
the property award should be adjusted accordingly. It does
not show that this was considered thereafter on remand when
the trial court equalized the property award and adjusted
the support and maintenance award based upon a change in
circumstances.
The record supports the order of the District Court
entered on March 17, 1982, which held that Allen had not
vlolated the decree of divorce as amended and entered on
Narch 6, 1980. Lillian has failed to make a showing that
Allen is in contempt of court in regard to the bills from
the shopping spree. Nor does the record show that Allen was
"able" to pay the three minor bills, was requested to do so
and refused. This argument fails.
The second issue raised by Lillian is whether the
District Court erred in modifying the schedule for child
support and maintenance payments sua sponte. Here, however,
t l court's action was not sua sponte.
ie Lillian's argument
is without merit.
Lillian, in her affidavit in support of order to show
cause, requested the District Court to order Allen to make
payments "when due." At the hearing on this matter, counsel
for Lillian again asked the court to examine existing
problems with the payment schedule for support payments.
The original decree and the amendments of July 28,
1977, called for one payment on the 15th day of the month.
On remand, the District Court provided that the support
payments be made "on a bi-monthly schedule as required by
t h e o r i g i n a l d e c r e e o f t h e c o u r t on March 3 , 1 9 7 7 t o c o n f o r m
w i t h h i s p a y p e r i o d s s e t by e m p l o y e r . "
S i n c e c o n f l i c t e x i s t s b e t w e e n t h e payment s c h e d u l e a s
set forth in the original decree and in the decree as
amended o n remand, i t was t h e d u t y o f t h e D i s t r i c t C o u r t t o
r e s o l v e it. The D i s t r i c t C o u r t q u e s t i o n e d b o t h A l l e n and
L i l l i a n a s t o t h e e x i s t i n g payment s c h e d u l e and t h e p r o b l e m s
with it. Modification of t h e s c h e d u l e t o conform t o t h e
o r i g i n a l r e q u i r e m e n t o f o n e payment p e r month and t o a l l o w
A l l e n t o p r o c e s s h i s p a y c h e c k b e f o r e s e n d i n g h i s money o r d e r
t o t h e c l e r k o f c o u r t ' s o f f i c e is w e l l w i t h i n t h e D i s t r i c t
Court's discretion. S e c t i o n 3-1-111(8), MCA.
Af f i r m e d .
Chief J u s t i c e