Marriage of Julson ( 2013 )


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  •                                                                                            September 3 2013
    DA 12-0749
    IN THE SUPREME COURT OF THE STATE OF MONTANA
    2013 MT 252N
    IN RE THE MARRIAGE OF:
    ROSS JULSON,
    Petitioner and Appellee,
    and
    MARCI LYNN JULSON,
    Respondent and Appellant.
    APPEAL FROM:            District Court of the Nineteenth Judicial District,
    In and For the County of Lincoln, Cause No. DR 11-84
    Honorable James B. Wheelis, Presiding Judge
    COUNSEL OF RECORD:
    For Appellant:
    Douglas C. Allen; Attorney at Law; Cut Bank, Montana
    For Appellee:
    Heather McDougall; Attorney at Law; Troy, Montana
    Submitted on Briefs: August 14, 2013
    Decided: September 3, 2013
    Filed:
    __________________________________________
    Clerk
    Justice Jim Rice delivered the Opinion of the Court.
    ¶1     Pursuant to Section I, Paragraph 3(d), 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     Marci Lynn Julson (Marci) appeals from the October 16, 2012 order of the
    Nineteenth Judicial District Court granting the motion of Ross Julson (Ross) to hold
    Marci in contempt for her failure to pay interim child support as previously ordered by
    the District Court, and imposing attorney fees. Marci likewise challenges the court’s
    subsequent order of November 13, 2012, adjusting the total amount of fees to be paid.
    ¶3     The parties were married on August 28, 1992, and had three children together.
    They separated on May 31, 2011. Ross filed a petition for dissolution on June 7, 2011,
    and Marci filed a response and counterclaim on June 27, 2011. Ross filed a motion for
    an interim parenting plan and child support on August 18, 2011, alleging that the children
    had been living with him since the parties’ separation and requesting that Marci pay
    $1,329 per month in child support. After a hearing on the motion, the District Court
    entered an order on December 19, 2011, stating “[t]he court believes that Ross has been
    the major caretaker and has taken more interest in and spent more time with the
    children’s various athletic and social activities. . . . All told, the best interest of the
    children is for Ross to be the major caretaker.”
    2
    ¶4     Noting Ross’s child support request and calculations,1 the District Court found
    “that child support should be paid according to the child support guidelines as the parties’
    incomes and expenses stand for 2012, insofar as that can be calculated now. . . . Child
    support should be calculated as of January 1, 2012.” The court ordered that “[c]hild
    support shall commence as calculated for the parties’ income after January 1, 2012.”
    ¶5     A hearing on final determination of the dissolution issues was conducted on
    January 11, 2012, and the District Court entered findings of fact, conclusions of law, a
    final parenting plan, and a decree of dissolution on April 30, 2012. In its findings, the
    court noted that “[a]s ordered in the December 19, 2011, order adopting an Interim
    Parenting Plan, Marci shall begin to pay child support commencing January 1, 2012.”
    The court also ordered Marci to make permanent child support payments of $1,257 per
    month, commencing May 1, 2012, and adjusted that amount downward effective on
    future dates to reflect the cessation of support for the parties’ children as they graduated
    from high school. The court permitted Marci to reduce these payments by $750 per
    month “to offset the additional property settlement amounts due her.” The court again
    noted that Marci “was earlier ordered to pay child support commencing January 1, 2012.”
    ¶6     Ross filed a motion for contempt and for attorney fees in September 2012, stating
    that Marci had failed to pay “child support as ordered for January 1, 2012 to April 30,
    2012.” Marci filed a response asserting that the interim order was superseded by the final
    1
    The court stated that Ross’s calculations at the hearing indicated that Marci should pay $1,314
    per month in child support.
    3
    judgment and was of no further force and effect, arguing that Ross “simply has no basis
    to seek the temporary child support.”      Ross filed a reply to Marci’s response, and
    thereafter the court entered an order on October 16, 2012, ordering Marci to pay $5,028
    “for child support from January 1, 2012 to April 30, 2012.” On November 13, 2012, the
    court entered an order revising the amount owed to $5,256.
    ¶7     On appeal, Marci argues that the District Court erred and violated her due process
    rights by failing to convene a hearing to give her to a reasonable opportunity to meet the
    contempt charge and be represented by counsel, to permit her to deduct $750 per month
    from the interim support obligation, and by awarding attorney fees to Ross. Ross argues
    that the contempt order is not appealable, that Marci had a reasonable opportunity to
    respond and did not request a hearing, that Marci did not raise the $750 offset before the
    District Court, and that attorney fees were proper. He requests that we award him fees on
    appeal.
    ¶8     We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
    our Internal Operating Rules, which provides for noncitable memorandum opinions.
    Contempt orders in family law cases involving ancillary orders affecting the substantial
    rights of a party are appealable. Lee v. Lee, 
    2000 MT 67
    , 
    299 Mont. 78
    , 
    996 P.2d 389
    .
    Marci was represented by counsel and filed a response to the contempt motion. She did
    not request a hearing prior to the court’s order or seek an offset, but rather contested the
    validity of the interim child support order. The issues in this case are ones of judicial
    discretion and there clearly was not an abuse of discretion, including the award of
    4
    attorney fees.     Any legal issues are controlled by settled law and were correctly
    interpreted by the District Court. Ross’s request for attorney fees on appeal is denied.
    ¶9     Affirmed.
    /S/ JIM RICE
    We concur:
    /S/ MIKE McGRATH
    /S/ MICHAEL E WHEAT
    /S/ LAURIE McKINNON
    /S/ BRIAN MORRIS
    5
    

Document Info

Docket Number: 12-0749

Filed Date: 9/3/2013

Precedential Status: Precedential

Modified Date: 10/30/2014