Marriage of Grenfell

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 Commiss 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 , howe 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 transcript 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