Marriage of Jurgens Turner

• Court: Montana Supreme Court
• Decided: October 14, 1993
• Docket: 93-419
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF MONTANA

No. 93-419

IN RE THE MARRIAGE OF ; DENISE RENE JURGENS, i Petitioner Below, ; and ; OPINION and JIMMIE ALLEN TURNER, ; ORDER Respondent Below and ; Petitioner Herein, ;;.'>L'$8>~ ; F$ v. :,:lj? ; :' 2. fE yJcJj3 ELEVENTH JUDICIAL DISTRICT COURT, )

On May 25, 1993, the Eleventh Judicial District Court, Judge

Michael H. Keedy presiding, issued a final decree of dissolution in the marriage of Denise Jurgens (Jurgens) and Jimmie Turner

(Turner). In the final order, Turner was ordered to pay to Jurgens:

1) $195 per month in child support beginning June 20, 1993;

2) $2,826 for Jurgens' interest in the real property of the marriage; 3) $508 for Jurgens' half of the parties' 1991 tax refund: and 4) $1,161 in retroactive child support.

Neither party appealed the order and decree of dissolution.

On July 2, 1993, Jurgens filed an "affidavit of facts" with

1 the District Court in which she stated that Turner had not paid any

of the sums ordered by the District Court in the decree. The

District Court subsequently issued an order instructing Turner to

appear and show cause why he should not be held in contempt for

failing to pay the sum of $4,8[8]5 as ordered in the May 25, 1993,

order and decree of dissolution. A July 27, 1993, hearing date was

set.

On July 26, 1993, the day prior to the scheduled contempt

hearing, Randall Snyder, an attorney for Turner's father, George

Turner, faxed and mailed a letter to Jurgens' counsel. In that

letter, Snyder indicated that he was enclosing a check for $2,000

which was "payable to your trust account . . . This amount is

forwarded to you, for application on Jimmie's obligation to Ms.

Jurgens." The letter also stated that "I included, within the

amount payable to Ms. Jurgens, the amount for June and July child

support."

The contempt hearing was held the following day. Jurgens

testified that she had received no money from Turner for payment of

the amounts ordered in the May 25, 1993, decree. Turner testified

that, as far as he knew, Jurgens and her counsel had accepted his

offer to discharge the amount owing by a $2,000 downpayment and

terms of $150 per month at ten percent interest. The District

Court found Turner guilty of contempt of court and entered four

separate counts of contempt, apparently for the four separate debts

set out above, and sentenced him to five days incarceration for

each count--a total of twenty days. The District Court also

2 ordered that Turner could purge himself of contempt if he paid

Jurgens $4,885, plus costs and attorney's fees of $529.20, by

August 24, 1993.

On August 24, 1993, Turner filed a petition for writ of

certiorari with this Court. He argued, among other things, that

the District Court refused to hear or accept his evidence regarding

the parties' agreement to settle the amounts owing during the July

27 hearing. On August 24, 1993, we issued an order staying the

contempt proceedings until further order of this Court and ordering

responses to Turner's petition. Jurgens and the District Court

filed a joint response to the writ of certiorari; Jurgens also filed motions for attorney's fees, costs, and sanctions and the

District Court filed a motion to dismiss the petition for writ of

certiorari. We initially review Turner's petition for writ of

certiorari. An order of contempt is final and conclusive and not an

appealable order: a writ of certiorari is the proper avenue for

review of a contempt order. Section 3-l-523, MCA; Milanovich v.

Milanovich (1982), 200 Mont. 83, 87, 655 P.2d 959, 961. We note

that this Court has made an exception to this rule in marriage

dissolution proceedings and allowed review of contempt orders on

direct appeal. In re Marriage of Sessions (1988), 231 Mont. 437,

441, 753 P.2d 1306, 1308. This exception, however, does not

prohibit Turner from resorting to the usual method, a petition for

writ of certiorari, to obtain review of the contempt order issued

by the District Court in this case.

3 On review, we determine whether the court issuing the contempt

order acted within its jurisdiction and whether substantial

evidence supports the finding of contempt. Doran v. City Court of

Whitefish (1989), 239 Mont. 94, 98, 779 P.2d 68, 70. In this case,

Turner does not challenge the District Court's jurisdiction.

Indeed, it is obvious from the limited record before us that Turner

was ordered to pay Jurgens $4,885 in May, 1993, and by his own

admission, had not paid that full amount as of July 27, 1993. Such

a failure to comply with the District Court's order constitutes

contempt. See Sessions, 753 P.2d at 1309; In re Marriage of

Robbins (1985), 219 Mont. 130, 137-38, 711 P.2d 1347, 1351.

Because of the unique procedural posture of this case, further

examination of the District Court's order is required. As noted

above, the District Court imposed four separate counts of contempt,

apparently for the four separate amounts owing and unpaid.

According to the District Court's order, Turner had until August

24, 1993, to purge himself of contempt by paying the ordered

amounts. Turner filed his petition for writ of certiorari before

Turner's allowed time to purge himself of the contempts expired.

As such, the District Court did not have an opportunity to consider

whether Turner had, in fact, purged himself of one or more of the

four counts of contempt.

As stated earlier, Turner contends that his father, George

Turner, has paid $2,000 on his behalf towards the amount he owes to

Jurgens. The letter to Jurgens' counsel also seems to indicate

that the amounts for the June and July child support obligations

4 were paid by Turner's father. From the record before this Court, we cannot ascertain whether those amounts were received or accepted by Jurgens. We conclude, therefore, that it is appropriate for Turner to submit to the District Court documentation of the amounts he, or someone on his behalf, has paid to Jurgens pursuant to the District Court's orders. After Jurgens has had opportunity to respond, the District Court should determine which, if any, of the four counts of contempt have been satisfied by the payments made, and issue the appropriate orders. We emphasize that we are in no way concluding that Turner is not subject to contempt for failure to abide by the District Court's May 25, 1993, order. We conclude only that, in light of the manner in which the separate contempts were imposed and the confusion over payments alleged to have been made prior to the contempt hearing, further proceedings are appropriate to determine the extent to which one or more of the contempts have been purged. The remaining issues raised in Turner's petition for writ of certiorari do not relate to the contempt order and, therefore, are not properly before us. Similarly, as we are granting limited relief to Turner, Jurgens' motions for attorney's fees, costs and sanctions will also be denied. IT IS ORDERED: 1. Turner is granted ten (10) days from the date of this Opinion and Order to file with the District Court proof of the amounts paid to date towards the total amount owing to Jurgens;

5 2. Jurgens is allowed five (5) days from the date of Turner's

submission to respond, if desired, to that evidence:

3. The District Court shall then determine whether Turner has

purged himself of any of the four counts of contempt entered

against him. If the entire obligation has not been satisfied, the District Court shall execute the contempt sentence(s) imposed.

4. JurgensI motion for attorney's fees and costs is DENIED:

5. Jurgens' motion for sanctions is DENIED: and

6. The District Court's motion to dismiss the writ of certiorari is DENIED. The Clerk of Court is directed to mail a true copy of this

Order to the Jimmie Turner personally, to counsel of record for all

parties, to the Honorable Michael H. Keedy and to the Clerk of Court for the Eleven District. DATED this of October, 1993.