In Re the Marriage of Prescott

856 P.2d 229, 259 Mont. 293, 50 State Rptr. 801, 1993 Mont. LEXIS 207
CourtMontana Supreme Court
DecidedJuly 8, 1993
Docket92-605
StatusPublished
Cited by11 cases

This text of 856 P.2d 229 (In Re the Marriage of Prescott) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re the Marriage of Prescott, 856 P.2d 229, 259 Mont. 293, 50 State Rptr. 801, 1993 Mont. LEXIS 207 (Mo. 1993).

Opinions

JUSTICE HUNT

delivered the Opinion of the Court.

Appellant Gregory W. Prescott appeals from an order of the Fourth Judicial District Court, Missoula County, denying his request for a modification of the dissolution decree dated June 13, 1988. Gregory also appeals the District Court’s order finding him in contempt for failing to pay child support, maintenance, and taxes. The District Court sentenced Gregory to jail for 15 days to be suspended for six months to allow him to pay back taxes.

We affirm.

[295]*295The parties raise four issues for this Court’s consideration.

1. Did the District Court err in denying Gregory the right to counsel during the contempt proceedings?

2. Did the District Court err in not staying the contempt proceedings until the resolution of a pending criminal charge in Oregon?

3. Did the District Court err when it offered to be sworn and testify on the record during the contempt proceedings?

4. Should this Court award costs and attorney fees to respondent Pamela Prescott?

This action arises out of a decree of dissolution. The relevant portions of the decree provided that Gregory pay $400 per month per child in support and that he pay $800 per month in maintenance. Gregory also agreed to pay all current and back state and federal taxes that the parties owed. Since the entry of the divorce decree, Gregory has not made any maintenance payments and his record in child support payments is poor. To date, Gregory has failed to meet his obligations, and at the time of the hearing owed in excess of $70,000 in back maintenance and child support. Because Gregory did not pay the parties’ tax liabilities, the IRS has withheld three years of tax refunds from Pamela.

Pamela and the parties’ four children have suffered considerably because of Gregory’s failure to make payments. The family became dependent upon family and friends to meet their daily needs. During the separation, Pamela attended a Displaced Homemaker Program and worked as a maid in Missoula. The family qualified for food stamps and other government assistance. Pamela’s relatives purchased food for the family. In 1987, the teachers at the children’s grade school voted the children the “most needy,” which allowed the family to receive free winter clothing.

Gregory’s failure to pay child support and maintenance forced the children to help Pamela support the family. The oldest child, who has reached the age of majority, quit college and went to work at a local fast food restaurant. The second child, a high school student, worked part-time at a restaurant. The third child did his part by doing odd jobs after school.

After the dissolution was final, the family moved to LaPine, Oregon, where Pamela initially cleaned houses to get by. The family lived in two borrowed travel trailers parked at Pamela’s sister’s house. With the help of an aunt who contributed $300 a month for a year, the family moved into a rental home. After the dissolution, Pamela [296]*296sold a parcel of real estate, but the income from the sale is only $250 a month. Pamela and the children still depend on relatives and friends for food, clothing, and money.

Gregory has bachelor of science degrees in geology and mathematics. During the separation and after the dissolution, Gregory voluntarily underemployed himself so that he could work on his invention. The record shows that Gregory can earn a good income as a geologist, having earned $70,000 in 1986. He currently works as Chief Geologist for the Colville Confederated Tribes in Nespelm, Washington, and earns $24,000 a year.

In March 1989, the Washington State Department of Social and Health Services held a hearing and found Gregory $20,000 in arrears for back child support and maintenance. In April 1992, the State of Oregon filed felony charges against Gregory for criminal neglect of the children. Trial on those charges was scheduled for December 1992.

On April 30, 1992, Gregory filed a motion to modify child support. On July 31, 1992, Gregory also filed a motion to amend the original dissolution decree. On September 16, 1992, Pamela filed a motion to hold Gregory in contempt for violating the court’s order and decree of dissolution dated June 13, 1988. On September 29, 1992, the court conducted a show cause hearing and considered Gregory’s motions. Gregory appeared pro se, and Pamela appeared with counsel.

On October 8,1992, the court issued its order. By agreement of the parties, the court lowered child support from $400 a month per child to $300 a month per child, which is within the mandatory SRS Guidelines. The court denied Gregory’s motion to amend the decree of June 13, 1988. The court found Gregory in contempt for violating the June 13,1988, order and decree and sentenced him to 15 days in jail, which the court suspended for six months. During the suspension, Gregory had the opportunity to pay off the back taxes owed and purge the contempt order. Gregory appeals from this order.

MOTION TO DISMISS THE APPEAL

On February 18, 1993, Pamela filed a motion with this Court to dismiss Gregory’s appeal of the lower court’s contempt order pursuant to § 3-1-523, MCA. Both parties addressed the motion in their appellate briefs.

We have stated that although contempt orders by the district court are final and usually not reviewable by this Court except through writ of certiorari, as required by § 3-1-523, MCA, we have [297]*297made an exception for family law cases. In re Marriage of Boharski (1993), [257 Mont. 71], 847 P.2d 709, 713, 50 St. Rep. 161, 163. We limit our review of the contempt order to examining the record to see whether the district court acted within its jurisdiction and whether the evidence supports the contempt. In re Marriage of Sullivan (1993), [258 Mont. 531], 50 St. Rep. 648, 651, 853 P.2d 1194. Therefore, we deny the motion to dismiss the appeal.

I.

Did the District Court err in denying appellant the right to counsel during the contempt proceedings?

At the beginning of the contempt proceedings, Gregory requested the District Court to appoint counsel, which was denied. Gregory contends that the contempt in this case is criminal in nature and that the District Court violated his constitutional right by not appointing counsel at public expense. Because Gregory works as a geologist earning $24,000 a year, his argument that he is indigent is without merit.

A contempt proceeding may be quasi-criminal in nature. Because this case involved a contempt violation outside the presence of the court, it is considered a constructive contempt, and therefore, due process is required. Lilienthal v. District Court (1982), 200 Mont. 236, 242, 650 P.2d 779, 782. Constructive contempt requires the following due process requirements:

“[T]hat one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation.”

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In Re the Marriage of Prescott
856 P.2d 229 (Montana Supreme Court, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
856 P.2d 229, 259 Mont. 293, 50 State Rptr. 801, 1993 Mont. LEXIS 207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-prescott-mont-1993.