Marriage of Harrison-Simmons , 2016 MT 134N ( 2016 )

May 31 2016
DA 15-0725
Case Number: DA 15-0725
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 134N
IN RE THE MARRIAGE OF:
NOEL DOUGLAS HARRISON-SIMMONS,
Petitioner and Appellant,
v.
YOSHIE BARNETT (f/k/a YOSHIE
(ODAGIRI) HARRISON-SIMMONS,
Respondent and Appellee.
APPEAL FROM: District Court of the Tenth Judicial District,
In and For the County of Fergus, Cause No. DR-2011-39
Honorable Jon A. Oldenburg, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
William M. Gilbert, High Plains Law, PLLC, Billings, Montana
For Appellee:
Thomas C. Orr, Thomas C. Orr Law Offices, Missoula, Montana
Submitted on Briefs: May 4, 2016
Decided: May 31, 2016
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Noel Harrison-Simmons appeals from the District Court’s Findings of Fact,
Conclusions of Law and Order filed September 14, 2015. We affirm.
¶3 The District Court’s decree in 2012 dissolved the parties’ marriage. That decree
incorporated a property settlement agreement between the parties. One provision of the
stipulated agreement required Noel to remove Yoshie’s name and liability from certain
debts incurred during the marriage, including debts to Navy Federal Credit Union in the
amounts of $9,774.13 and $30,119.56. By 2015 Noel had not complied and Yoshie
received demands for payment from Navy Federal and then from attorneys attempting to
collect on the debts. Yoshie was concerned with maintaining her credit rating and
reached an agreement with the collection attorneys that required her to make monthly
payments on the debts.
¶4 Yoshie initiated the present proceeding requesting that Noel be held in contempt
for failure to comply with the decree of dissolution; that he be ordered to remove
Yoshie’s obligation from the Navy Federal debts; that he be ordered to pay Yoshie’s
attorney fees; and that the District Court grant such other relief as it deemed proper. The
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District Court held an evidentiary hearing on July 24, 2015. Yoshie testified to her
continuing exposure to the Navy Federal debts and the payments she made on those debts
to avoid further exposure. Noel testified and admitted that he had not paid the Navy
Federal debts and had failed to refinance to remove Yoshie’s obligation. Noel also
testified that he hired an attorney to work out the Navy Federal debts, but the effort had
not been successful.
¶5 The District Court did not hold Noel in contempt, but in the September 15, 2015
order required him to remove Yoshie from the Navy Federal obligation within 45 days
and to reimburse Yoshie for the payments she made on the debts. The District Court also
ordered Noel to pay Yoshie’s attorney fees. In November 2015 Yoshie filed a motion
seeking enforcement of the District Court’s order, contending that Noel had done nothing
to comply. Noel’s appeal intervened.
¶6 On appeal Noel contends that the District Court lacked jurisdiction to order relief
without first holding him in contempt; that the District Court wrongfully awarded relief
based upon facts not set out in the pleadings seeking contempt; and that the order is not
supported by substantial evidence.
¶7 We find no authority in the law or basis in the facts to support Noel’s contentions.
Noel does not contest his obligations regarding the Navy Federal debts. He agreed to
assume liability for the obligations as part of the 2012 dissolution decree, but has failed to
do so. This failure exposed Yoshie to continuing liability and demands arising from
those debts. Noel also agreed in 2012 to indemnify Yoshie from all “damages, costs and
expenses, including reasonable attorney fees” that she might incur as a result of any
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failure to comply with the obligations under the property settlement. Yoshie testified
without contradiction as to her exposure to the debts and the payments she made on them.
¶8 The District Court had both jurisdiction and authority to enforce the obligations of
the property settlement agreement that was incorporated into the decree of dissolution,
whether or not Noel was held in contempt. Simpson v. Simpson, 2013 MT 22, ¶ 23, 368
Mont. 315, 294 P.3d 1212. A district court has continuing jurisdiction in matters of
property disposition arising from a dissolution of marriage. Lee v. Lee, 2000 MT 67,
¶ 49, 299 Mont. 78, 996 P.2d 389.
¶9 We affirm the District Court. We further grant Yoshie’s request for attorney fees
and costs on appeal. She is entitled to reimbursement for those fees and costs under the
property settlement agreement. Cadena v. Fries, 2015 MT 90, ¶ 26, 378 Mont. 409, 346
P.3d 347; M. R. App. P. 19. We remand to the District Court for a determination of
Yoshie’s attorney fees on appeal.
¶10 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. In the opinion
of the Court, this case presents a question controlled by settled law.
¶11 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON
/S/ JIM RICE
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