Marriage of French , 1999 MT 332N ( 1999 )

No
No. 99-439
IN THE SUPREME COURT OF THE STATE OF MONTANA
1999 MT 332N
IN RE THE MARRIAGE OF
ALBERT THOMAS FRENCH,
Petitioner and Respondent,
and
CHERI LYNN FRENCH,
Respondent and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial
District,
In and for the County of Yellowstone,
The Honorable Diane G. Barz, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
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Debora J. Bishop, Bishop & Bishop; Billings, Montana
For Respondent:
Albert Thomas French, Pro Se; Billings, Montana
Submitted on Briefs: October 28, 1999
Decided: December 28, 1999
Filed:
__________________________________________
Clerk
Justice Terry N. Trieweiler delivered the opinion of the Court.
¶ Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal 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.
¶ The Respondent Cheri Lynn French, brought a motion for contempt and judgment in the
District Court for the Thirteenth Judicial District in Yellowstone County. She sought to
compel the Petitioner Albert Thomas French, to pay his delinquent child support
obligations. The District Court denied the motion. Respondent appeals from the District
Court's denial of her motion and judgment. We affirm the District Court.
¶ The Respondent raises the following issues on appeal:
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¶ 1. Did the District Court abuse its discretion when it failed to hold Albert in contempt?
¶ 2. Did the District Court exhibit bias and prejudice in favor of Albert and against Cheri?
¶ 3. Did the District Court abuse its discretion when it failed to permit Cheri to cross-
examine the Petitioner?
¶ 4. Did the District Court's actions violate Cheri's rights under the confrontation clause of
the United States and Montana Constitutions?
¶ 5. Did the District Court abuse its discretion when it failed to permit Albert to be
recalled as a rebuttal witness?
¶ 6. Was Cheri denied a fair trial based on cumulative error?
FACTUAL BACKGROUND
¶ On January 23, 1992, Albert Thomas French, filed a petition for dissolution. A decree of
dissolution of marriage was entered on February 26, 1992. The decree of dissolution
required Albert to pay the sum of $300 per month for child support. In October 1997, the
Respondent Cheri Lynn French, filed a motion for modification of the decree of
dissolution and for payment of delinquent support. On March 31, 1998, the District Court
ordered a modification of the decree of dissolution. The modification required Albert to
pay the sum of $600 per month for child support and ordered him to make $150 additional
monthly payments until past due child support in the amount of $3900 was paid in full.
¶ On May 8, 1998, Cheri filed a motion for contempt and for judgment, in which she
requested that the District Court find Albert in contempt for failing to make his February,
March, and April 1998 child support payments. Albert responded by writing a letter to the
District Court which explained he had been unable to make payments because he had been
unemployed for 36 days. He promised that he would resume his $750 monthly payments
as soon as he received his first paycheck from his new employer. On June 26, 1998, the
District Court denied Cheri's motion for contempt and judgment.
¶ On April 12, 1999, Cheri filed another motion for contempt and judgment, in which she
requested that the District Court find Albert in contempt for failing to make his December
1998 and January, February, March, and April 1999 child support payments. On May 22,
1999, Albert paid Cheri $2250 for past due child support. On May 26, 1999, the District
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Court held a hearing to consider Cheri's motion for contempt and judgment. At the
hearing, Albert testified that he was unemployed for a period of time and had begun a new
job and that due to these events he was unable to keep current with his child support
obligation. Albert also testified that he paid Cheri $2250 four days earlier. Additionally,
Albert testified that he would complete payment of all his past due payments by August
1999. Based on Albert's testimony, the District Court denied Cheri's motion for contempt
and judgment.
DISCUSSION
ISSUE 1
¶ Did the District Court abuse its discretion when it did not hold Albert in contempt?
¶ Although it is well established that we make an exception to review a district court's
contempt decision in a family law matter, the majority of our prior cases have addressed
review of a court's order to find a party in contempt. See In re Marriage of Baer, 1998 MT
29, ¶ 44, 287 Mont. 322, ¶ 44, 954 P.2d 1125, ¶ 44. In that context our scope of review is
to consider whether the record supported the district court's findings. See In re Marriage
of Baer, ¶ 44. However, in a case like this, where we are being asked to review a district
court's refusal to find a party in contempt, we recognize that a different standard of review
is appropriate. See In re Marriage of Baer, ¶ 44.
¶ A district court has the responsibility to enforce its own orders. See In re Marriage of
Boyer (1995), 274 Mont. 282, 289, 908 P.2d 665, 669. Contempt of court is a
discretionary tool of the court for enforcing compliance with its decisions. See In re
Marriage of Jacobson (1987), 228 Mont. 458, 464, 743 P.2d 1025, 1028. The power to
inflict punishment by contempt is necessary to preserve the dignity and authority of the
court. See In re Marriage of Baer, ¶ 45. Accordingly, as we stated in In re Marriage of
Baer, "where a district court has found that there is no such need to enforce compliance
with its order or that the actions of a party do not present a challenge to its dignity and
authority, we will not reverse its decision absent a blatant abuse of discretion." In re
Marriage of Baer, ¶ 45.
¶ Cheri contends that there was substantial evidence from which the District Court could
conclude that Albert was in contempt. She asserts that because he did not testify that he
had been unemployed at any time since his previous 36 days of unemployment, there was
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no testimony that he could not make his payments for December 1998 through April 1999.
Additionally, Cheri contends that Albert's $2250 payment four days prior to the hearing
was in bad faith, and established that he had enough money to make his payments all
along.
¶ The District Court found that Albert had not done anything that justified finding him in
contempt. To the contrary, the District Court concluded that "Petitioner has done his best
to catch up on his payments and meet his obligations." Based on our review of the record,
we conclude that the District Court's decision to not hold Albert in contempt was not a
blatant abuse of discretion.
ISSUE 2
¶ Did the District Court exhibit bias and prejudice in favor of Albert and against Cheri?
¶ Cheri contends that the District Court's questions of Albert at the hearing, demonstrated
bias in his favor. Cheri points to the following exchange between the District Court and
Albert:
Q. (By the Court) Do you understand the motion that's before the
Court this morning?
A. (By the Petitioner) Yes, I do.
Q. Do you have any reason to tell me why I shouldn't find you in
contempt, award attorney fees and issue a judgment in this case?
A. All the records show I'm two months behind, $1,500, and I had
a conversation with Cheri, told her it would be August before I
could get caught up.
Q. And that you did make a good faith effort to pay–what;
$2,250?
A. Yes, ma'am.
Q. And how did you come up with that money?
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A. I started a new business. I was off work for 36 days. I was like
90 days without a paycheck. It's just now starting to come around.
Q. And do you fully intend to become current on your child
support?
I do.
Additionally, Cheri asserts that the District Court exhibited bias when, denying her motion
from the bench, the District Court stated: "[i]n light of the petitioner's representation and
good faith effort that he's making toward clearing up this matter, I am going to decline to
find him in contempt at this time . . . ." Cheri also contends that the District Court
exhibited bias when, subsequent to denying her motion from the bench, the District Court
told Albert: "keep up the good work, sir."
¶20 The critical inquiry is whether the District Court's remarks deprived Respondent of a
full and fair hearing. State v. Coates (1990), 241 Mont. 331, 334, 786 P.2d 1182, 1184.
We conclude that the District Court's remarks did not deprive the Respondent of a full and
fair hearing, and therefore decline to reverse the District Court's order based on bias or
prejudice.
ISSUE 3
¶21 Did the District Court abuse its discretion when it denied Cheri the opportunity to
cross-examine Albert?
¶22 Cheri contends that the District Court abused its discretion when it denied her the
opportunity to cross-examine Albert. However, Cheri failed to object at the time of the
hearing. By failing to do so, she waived her right to raise this issue on appeal.
Accordingly, we are precluded from reviewing this alleged error.
¶23 We are precluded from reviewing Cheri's fourth and fifth issues for the same reason.
ISSUE 6
¶24 Was Cheri denied a fair trial based on cumulative error?
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¶25 Cheri asserts that the following cumulative errors made by the District Court denied
her right to a fair trial: the District Court limited her to five minutes within which to
present testimony in support of her motion; the District Court refused to permit her
counsel to testify regarding attorney fees and costs; the District Court refused to permit her
to cross-examine Albert; the District Court failed to inquire into the parties' conflicting
testimonies and evidence; the District Court refused to permit Cheri to call a rebuttal
witness; the District Court refused to permit Cheri to make a closing statement; the
District Court refused to read the credible evidence presented by her; and the District
Court exhibited bias in favor of the Respondent.
¶26 While Montana recognizes that cumulative error can serve as a basis for reversal, even
when individual errors alone would not serve as a sufficient basis for reversal, we
conclude for reasons stated previously, and in particular, waiver of any objection to many
of the alleged errors, that Cheri is not entitled to reversal for cumulative error.
¶27 We affirm the judgment of the District Court.
/S/ TERRY N. TRIEWEILER
We Concur:
/S/ J. A. TURNAGE
/S/ JAMES C. NELSON
/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
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