Marriage of Marez and Marshall , 377 Mont. 304 ( 2014 )

December 23 2014
DA 14-0128
Case Number: DA 14-0128
IN THE SUPREME COURT OF THE STATE OF MONTANA
2014 MT 333IN RE THE MARRIAGE OF
TONIA J. MAREZ,
Petitioner and Appellant,
and
DAVID B. MARSHALL,
Respondent and Appellee.
APPEAL FROM: District Court of the Fourteenth Judicial District,
In and For the County of Musselshell, Cause No. DR 03-13
Honorable Randal I. Spaulding, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Tonia J. Marez, Self-Represented, Billings, Montana
For Appellee:
Michelle R. Lee, Harper & Lee Law Firm, Billings, Montana
Submitted on Briefs: October 22, 2014
Decided: December 23, 2014
Filed:
__________________________________________
Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 Tonia J. Marez and David B. Marshall have been involved in an acrimonious
dispute over the parenting of their minor daughter, A.C.M., since the dissolution of their
marriage in 2003. In August 2013, David, represented by counsel, filed a motion in the
Fourteenth Judicial District Court, Musselshell County, seeking to hold Tonia in
contempt for failure to abide by the parenting plan. Tonia, pro se, moved to hold David
in contempt for failure to pay child support. David also moved to sanction Tonia for
filing numerous pleadings with the intent to harass David. The District Court granted
David’s motion for contempt, denied Tonia’s motion for contempt, and imposed
sanctions against Tonia. Tonia appeals. We affirm.
¶2 Tonia presents the following issues for review:
1. Did the District Court err when it granted David’s motion to hold Tonia in
contempt for failure to abide by the parenting plan?
2. Did the District Court err when it denied Tonia’s motion to hold David in
contempt for failure to pay child support?
3. Did the District Court err when it imposed sanctions against Tonia?
BACKGROUND
¶3 Tonia and David were married in 1997. Tonia had a daughter, B.J.M., from a
previous marriage. A.C.M., born in 1999, was the only child of the marriage. During the
marriage, David received monthly benefits from the Department of Veteran’s Affairs,
including $186.00 per month designated for the support of Tonia and B.J.M. Tonia and
David separated in April 2003. On September 9, 2003, the parties filed a stipulation
regarding support. They agreed that David should pay child support for A.C.M. in the
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amount of $481.00 monthly and that the $186.00 benefit designated for Tonia and B.J.M.
should be paid to Tonia. The District Court entered an order adopting the stipulation of
the parties. That order specified that David’s VA benefits included “$186.00 per month
for the support and care of the Petitioner and her daughter [B.J.M.],” and directed David
to pay the benefit to Tonia until such time as it was discontinued.
¶4 On September 15, 2003, for reasons which are not clear from a review of the
record, a second order on support was entered. That order also adopted the stipulation of
the parties and directed David to pay child support of $481.00 monthly. The language of
this order differed slightly from the September 9 order, as it stated that David “receives
$186.00 per month from the VA for the support of Petitioner and children,” (emphasis
added) rather than specifically for the support of B.J.M. David notified the VA that
Tonia and B.J.M. were no longer living in the family home, and the VA terminated the
benefit as of September 1, 2003.
¶5 The marriage was dissolved by decree November 28, 2003. In the decree of
dissolution, the District Court ordered David to pay Tonia $1,020.00, representing the
amount of VA benefits David had received for the support of Tonia and B.J.M. prior to
September 1, 2003. The District Court also directed the parties to submit their proposed
child support calculations within 30 days of entry of the decree of dissolution. On
December 23, 2003, the parties entered another stipulation, agreeing that child support
for A.C.M. should be set at $494.00 per month. This stipulation was subsequently
adopted by the District Court.
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¶6 The final parenting plan, issued November 28, 2003, and incorporated into the
decree of dissolution, provided that A.C.M.’s primary residence would be with Tonia.
David was granted visitation on alternate weekends and for a total of four weeks during
the summer. Exchanges were to take place at a public location. The parenting plan
included notice that failure to abide by its provisions could subject the violating party to
sanctions, including contempt.
¶7 Relations between the parties remained antagonistic after dissolution of the
marriage. Nearly 200 additional documents were filed in the District Court after entry of
the decree of dissolution and final parenting plan. In the numerous filings that followed,
each parent alleged neglect, abuse, or manipulation of A.C.M. by the other parent. Each
requested amendment of the parenting plan to require supervision of the other parent’s
visitation. Tonia petitioned for orders of protection on behalf of herself, A.C.M., and
other household members.
¶8 This appeal is immediately concerned with filings made in 2013, after A.C.M.
reached the age of 14. On April 23, 2013, Tonia petitioned the Yellowstone County
Justice Court for an order of protection on behalf of A.C.M. A typed statement bearing
A.C.M’s signature was attached and stated that A.C.M. was afraid of David because he
slept during her visits, did not provide acceptable food, emotionally manipulated her, and
tried to take her away from her mother. Tonia also included her own statement alleging
that David had a long history of domestic violence. The Yellowstone County Justice
Court granted a temporary order of protection. David moved to have the action removed
to the Musselshell County District Court. The Yellowstone County Justice Court granted
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the motion, due to the ongoing parenting action in the Musselshell County District Court.
After the removal, David moved the Musselshell County District Court to vacate the
order of protection.
¶9 On May 7, 2013, David filed an affidavit in support of his motion to vacate the
order of protection. In the affidavit, David alleged that prior to A.C.M.’s 14th birthday,
Tonia contacted him and informed him that the parenting plan needed to be amended now
that A.C.M. was old enough to “have a say.” He said that Tonia appeared at a scheduled
visitation exchange on April 19, 2013, without A.C.M. Tonia allegedly informed David
that A.C.M. no longer wanted to have contact with him, she would no longer be bringing
A.C.M. to the exchanges, and David had no choice but to accept the circumstances.
David said he had not had contact with his daughter since April 19, 2013.
¶10 On May 9, 2013, Tonia filed a response to David’s motion to vacate the order of
protection. Attached to the response were affidavits by Tonia, A.C.M., Tonia’s husband
Silvester Marez, and Jennah Ritz, a family friend. Tonia stated in her affidavit that
A.C.M. did not want anything to do with David. She said she had tried unsuccessfully to
help David repair his relationship with A.C.M. Tonia said A.C.M. behaved differently
around David and was scared of him. Tonia was concerned that because David would
not allow A.C.M. to participate in extracurricular sports, he may not allow her to have an
after-school job, in which case Tonia feared A.C.M. would “turn to a life of crime.”
Tonia was also upset by David’s references to A.C.M. as “HIS” daughter, rather than
“OUR DAUGHTER.” Tonia claimed David had spoken to A.C.M. on the phone on
April 21, 2013.
5
¶11 A.C.M. stated in her affidavit that her mother “has mostly given me the choice”
whether she wanted to see her father, whom she called Dave. She said she did not want
any contact with her father because “[h]e will just keep talking about the Court things.”
Silvester stated that A.C.M. “made her choice to stop seeing Dave.” Ritz stated that on
April 19, 2013, A.C.M. “did not want to go with Dave.” Ritz said she accompanied
Tonia to the exchange location. Ritz said Tonia pulled up next to David’s truck, rolled
down her window, and told David that A.C.M. was very upset and did not want to see
him. Ritz said that Tonia “always gives A.C.M. the choice whether she wants to go [visit
David] or not. . . . [Tonia] always tells A.C.M. that she can do whatever she wants to do.”
On May 13, 2013, the District Court dissolved the order of protection, concluding that the
petition appeared to be “nothing more than a poorly veiled attempt to amend the final
parenting plan . . . .” The District Court ordered the parties to comply with the final
parenting plan.
¶12 On June 7, 2013, Tonia filed a motion to temporarily suspend David’s visitation
schedule. Attached was another affidavit by A.C.M., stating that she knew a parenting
plan was in place, she was refusing to attend scheduled visits with her father, and she
believed neither parent could force her to do so because she was 14 years old. The
District Court denied the motion, and again affirmed that the final parenting plan
remained in effect.
¶13 On August 13, 2013, David moved to hold Tonia in contempt for failure to comply
with the final parenting plan. David attached an affidavit stating that he had not seen
A.C.M. since April 7, 2013, and had not spoken to her on the phone since April 19, 2013.
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David noted that on May 23, 2013, Silvester had filed a petition for stepparent adoption
of A.C.M. in the Yellowstone County District Court, to which David “vehemently
objected.” David stated that despite the two recent orders of the Musselshell County
District Court reaffirming the final parenting plan, Tonia refused to allow him any
visitation or telephone contact with A.C.M.
¶14 Tonia responded to the motion for contempt on August 27, 2013, stating that
A.C.M. had employment and social obligations which conflicted with David’s scheduled
visitation. She also claimed forcing A.C.M. to attend visitation with David would violate
A.C.M.’s constitutional rights and require Tonia to commit child abuse. David replied on
September 9, 2013. His reply indicates that following his objection to Silvester’s petition
for stepparent adoption, Silvester also filed a petition to terminate David’s parental rights.
The reply also indicates that the adoption and parental termination pending in the
Yellowstone County District Court had been transferred to the Musselshell County
District Court.
¶15 Tonia then filed a flurry of documents. On September 10, 2013, she moved to
hold David in contempt for allegedly failing to pay VA benefits received for the support
of A.C.M. to Tonia, as she claimed he had been ordered to do. Tonia attached the
September 15, 2003 interim support order, which referred to benefits received “from the
VA for the support of Petitioner and children.” Tonia also attached a January 25, 2011
order referring to the September 15, 2003 interim support order, and stating that benefits
received “for the support of the Petitioner and the child” were to be paid to Tonia “for so
long as the Respondent received such funds.”
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¶16 On September 11, 2013, Tonia filed a second response to David’s motion for
contempt. She also moved to have the parenting action, the pending stepparent adoption,
and the petition for termination of parental rights transferred to the Yellowstone County
District Court. On September 23, 2013, the Musselshell County District Court set a show
cause hearing on David’s motion to hold Tonia in contempt. David did not immediately
respond to Tonia’s motions for contempt and to transfer the pending actions. On
September 27, 2013, Tonia moved the Musselshell County District Court to enter a
default judgment granting her motion for contempt. On September 30, 2013, Tonia also
asked the Musselshell County District Court to grant her motion to transfer the pending
actions by default. She also moved to vacate the show cause hearing on David’s motion
for contempt. The District Court, observing the “numerous matters pending before this
Court, as well as the companion cause DA-13-04,” a reference to the pending stepparent
adoption and termination of parental rights, ordered a combined hearing on all pending
motions.
¶17 On October 3, 2013, David filed his response to Tonia’s motion for contempt and
motion to transfer the pending actions. He also moved for sanctions against Tonia and
Silvester pursuant to M. R. Civ. P. 11(b), alleging that the numerous pleadings filed by
Tonia “were not presented for any proper purpose and . . . were filed solely to harass,
cause unnecessary delay, and needlessly increase the cost of litigation.” David also
claimed Silvester’s petition for stepparent adoption was “a frivolous [p]etition that is not
warranted by existing Montana law,” because A.C.M. was not legally available for
adoption. David asked the District Court to award him attorney fees and costs.
8
¶18 The hearing on all pending motions was held October 11, 2013. The District
Court determined that Yellowstone County was the proper venue for the pending
stepparent adoption and termination of parental rights, and ordered the case transferred.
The District Court denied Tonia’s motion to transfer the parenting action and continued
to hear motions in that case. Extensive testimony was then heard.1
¶19 On January 28, 2014, the District Court issued its Findings of Fact, Conclusions of
Law, and Order on Motions. The District Court found that David’s obligation to pay
Tonia benefits received for the support of Tonia and B.J.M. ceased as of September 1,
2003, the date those benefits were terminated by the VA. The District Court stated that
its references to those benefits in previous orders had unfortunately “caused much
confusion,” and that it had erroneously included the benefits in the January 25, 2011
order relied upon by Tonia in her motion for contempt. The District Court found that
David had never been ordered to pay Tonia any benefits received for the support of
A.C.M., and that he had paid in excess of the full amount of child support, $494.00 per
month, ordered. The District Court therefore denied Tonia’s motion to hold David in
contempt for failure to pay child support.
¶20 The District Court interviewed A.C.M. in private, at which time A.C.M. said she
did not want to see her father. The court did not find credible, however, Tonia’s assertion
that she had attempted to persuade A.C.M. to attend visitation with David. The District
Court found Tonia had “repeatedly attempted to limit or outright suspend David’s
visitation rights,” citing her actions in obtaining an order of protection in the Yellowstone
1
A transcript of the hearing was not provided to this Court.
9
County Justice Court, supporting Silvester’s petition for stepparent adoption and
termination of David’s parental rights in the Yellowstone County District Court, and
moving the Musselshell County District Court to suspend David’s visitation schedule.
The court found that Tonia was aware of the terms of the final parenting plan, the
parenting plan remained in effect, and David had been allowed no contact with A.C.M.
since mid-April 2013. The court found that rather than attempting to facilitate visitation,
Tonia “seems to acquiesce in A.C.M.’s purported refusal to visit Dave . . . .”
¶21 The District Court characterized the issue of “[w]hether a contempt order is
appropriate when a child refuses to attend court[-]ordered visitation with a noncustodial
parent because the parent charged with facilitating such visitation has, as the court finds
here, either acquiesced in or encouraged the child’s refusal to visit” as an issue of first
impression in Montana. The District Court concluded that Tonia was in violation of the
final parenting plan by submitting to A.C.M.’s desires rather than taking reasonable
affirmative steps to abide by the plan and ensure David’s visitation. The District Court
therefore granted David’s motion to hold Tonia in contempt. The court fined Tonia
$500.00 and sentenced her to serve 30 days in the Musselshell County Jail. The court
suspended the fine and jail time, conditioned upon Tonia delivering A.C.M. to David for
his scheduled visitation.
¶22 The District Court also granted David’s motion to sanction Tonia pursuant to
M. R. Civ. P. 11(b). The District Court found that Tonia had filed “voluminous
pleadings” in an attempt to harass David, deprive him of parenting time, cause
unnecessary delay, and increase the costs of litigation. The District Court determined
10
Tonia to be a vexatious litigant and required her to obtain leave of court before filing any
future pleadings relating to the parenting of A.C.M. The District Court also ordered
Tonia to pay David’s attorney fees and costs reasonably incurred in pursuing his motions
for sanctions and contempt, and in defending against 10 pleadings filed by Tonia in three
different courts between April 23, 2013, and September 30, 2013. The District Court
directed David’s counsel to file an affidavit of fees and costs and serve a copy on Tonia,
although no deadline for filing the affidavit was specified. Tonia was allowed 14 days
after the filing of the affidavit to object to the amount, in which case a hearing would be
held. At the time of this appeal, David’s counsel had not yet filed an affidavit of fees and
costs.
STANDARDS OF REVIEW
¶23 A contempt order is ordinarily not subject to appeal. Section 3-1-523(1), MCA.
A limited exception exists for contempt orders issued in family law cases, “only when the
judgment or order appealed from includes an ancillary order that affects the substantial
rights of the parties involved.” Section 3-1-523(2), MCA; M. R. App. P. 6(3)(j); In re
Marriage of Lutes, 2005 MT 242, ¶ 7, 328 Mont. 490, 121 P.3d 561. If a contempt order
falls within this exception, we review the order to determine whether the district court
acted within its jurisdiction and whether the evidence supports the contempt. Novak v.
Novak, 2014 MT 62, ¶ 37, 374 Mont. 182, 320 P.3d 459. We will reverse a district
court’s decision not to find a party in contempt only where there has been a blatant abuse
of discretion. Lutes, ¶ 7.
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DISCUSSION
¶24 1. Did the District Court err when it granted David’s motion to hold Tonia in
contempt for failure to abide by the parenting plan?
¶25 A contempt order in a family law proceeding is reviewable only if, within a single
judgment, the court issues both an order of contempt and an ancillary order determining
the substantive rights of the parties. Section 3-1-523(2), MCA; Grounds v. Coward,
2000 MT 128, ¶ 6, 300 Mont. 1, 2 P.3d 822. A “lone contempt order” is not subject to
direct appeal. Lee v. Lee, 2000 MT 67, ¶ 37, 299 Mont. 78, 996 P.2d 389. As a threshold
matter, we conclude that the order finding Tonia in contempt is appealable under this
standard. The contempt order was issued as part of the District Court’s fifteen-page
Findings of Fact, Conclusions of Law, and Order on Motions, which followed a show
cause hearing addressing at least nine separate motions. In that order, the District Court
ordered David’s parenting time reinstated as of February 7, 2014; ordered all future
visitation exchanges to take place at the Musselshell County Sheriff’s Office; denied
Tonia’s motion to transfer venue of the parenting action; granted Tonia’s motion to
transfer venue of the stepparent adoption and termination of parental rights; determined
David had not been ordered to pay VA benefits for the support of A.C.M. to Tonia; and
determined Tonia had likely influenced A.C.M.’s stated desire not to have a relationship
with David. The District Court adjudicated several matters affecting the rights of the
parties related to their parenting dispute. The fifteen-page all-motions order was not a
“lone contempt order,” and is therefore subject to review. Grounds, ¶ 9; Lee, ¶ 37.
12
¶26 We review the contempt order first to determine whether the district court acted
within its jurisdiction. Novak, ¶ 37. The trial court has continuing jurisdiction in matters
of child custody. In re Marriage of Toavs, 2002 MT 230, ¶¶ 19-20, 311 Mont. 455,
56 P.3d 356 (citing Billings v. Billings, 189 Mont. 520, 522, 616 P.2d 1104, 1105
(1980)). The District Court issued the decree of dissolution and final parenting plan in
2003, and thus acted within its continuing jurisdiction when it determined Tonia was in
contempt for failure to comply with the final parenting plan.
¶27 Next, we review whether the evidence supports the contempt order. Novak, ¶ 37.
David’s affidavit states that he has had no contact with A.C.M. since April 19, 2013. The
affidavit by Ritz is consistent with David’s account and clearly establishes that Tonia did
not bring A.C.M. to the exchange location on April 19, 2013. Although Tonia’s affidavit
disputes the exact date of David’s last phone call with A.C.M., she does not deny that
David has not seen A.C.M. since April 2013, or that under the final parenting plan, he is
entitled to visitation on alternate weekends. Tonia claims her failure to comply with the
final parenting plan is due to A.C.M.’s independent refusal to attend visitation with her
father.
¶28 The District Court, however, found that A.C.M.’s desire to have no contact with
her father was likely not an independent choice, but the result of Tonia’s influence. The
District Court found Tonia had repeatedly attempted to limit David’s visitation, citing
several motions by Tonia to modify the final parenting plan, her petition for an order of
protection on behalf of A.C.M., her support of Silvester’s petition for stepparent adoption
and termination of David’s parental rights, and her motion to suspend David’s visitation.
13
The District Court found Tonia had not attempted to persuade or encourage A.C.M. to
visit David, as she claimed. Instead, Tonia had “likely done everything she [could] to
alienate A.C.M.’s affections” from her father. The District Court also found Tonia had
acquiesced in the wishes of her 14-year-old daughter rather than attempting to comply
with the visitation schedule.
¶29 The evidence supports the District Court’s findings. The affidavit by Silvester
states that “A.C.M. made her choice to stop seeing Dave.” Ritz confirms this, stating, “In
the time I have known the Petitioner and Silvester they have never said no to A.C.M.
when it comes to Dave. The Petitioner always gives A.C.M. the choice whether she
wants to go or not.” A.C.M. provided two signed, hand-written statements, one of which
was later typed by Tonia in the form of an affidavit and signed by A.C.M. before a
notary. In her affidavit, A.C.M. states that her mother “has mostly given me the choice if
I want to go see Dave or not.” This evidence supports the District Court’s finding that
rather than attempting to persuade A.C.M. to visit David as required by the final
parenting plan, Tonia acquiesced to A.C.M.’s desires.
¶30 There is also evidence supporting the District Court’s finding that Tonia likely
influenced A.C.M. in her purported decision not to visit her father. In her affidavit, Tonia
states her belief that David has engaged in “lies, manipulation, control, verbal abuse and
intimidation,” and has a need “to be in control” with respect to A.C.M. Tonia says she
believes David wants A.C.M. to live with him so she can care for him if his health
deteriorates. Tonia says she believes David’s refusal to allow A.C.M. to participate in
sports is potentially harmful to A.C.M. She also asks the court for an order allowing
14
A.C.M. to retrieve her belongings from David’s home, and attaches a list of items
hand-written by A.C.M. The affidavit by Silvester states that he believes David to be
“demanding and manipulative.” He says he and Tonia agreed A.C.M. should submit a
statement to the court. A.C.M.’s hand-written statement, which is not typed or notarized
but was included by Tonia as an exhibit, includes assertions which largely mirror
statements made by Tonia. A.C.M. says David wants her to live with him because of his
injured leg, and that he “has to be in control to the point that he won’t even let me play
sports in school.” A.C.M. says she is afraid David will try to take her away from her
mother, and that he has done so on two occasions, the first of which was in 2003, when
A.C.M. was only four years old.
¶31 Considering the obviously and undisputedly contentious nature of the proceedings,
the statements of Tonia and her husband indicating their strong and persistent belief that
visitation with David is not in A.C.M.’s best interest, the steps taken by Tonia to facilitate
A.C.M.’s personal involvement in the court proceedings, and the lengthy history of
filings by Tonia intended to limit David’s visitation, the District Court’s finding that
Tonia’s actions contributed to A.C.M.’s reluctance to visit David is supported by
evidence in the record. The District Court concluded, and we agree, that Tonia’s claim
that she is willing to help David repair his relationship with A.C.M. is not credible,
particularly in light of her support of Silvester’s petition to terminate David’s parental
rights. It is also clear that Tonia encouraged, if not solicited outright, A.C.M.’s active
involvement in legal actions taken against her father.
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¶32 As noted by the District Court, whether a parent may be held in contempt when a
child refuses to attend court-ordered visitation because the parent has either acquiesced in
or encouraged the child’s refusal is an issue of first impression in Montana. A district
court has the responsibility to enforce its own orders, In re Marriage of Baer, 1998 MT
29, ¶ 45, 287 Mont. 322, 954 P.2d 1125, and may exercise its discretionary contempt
power as necessary to enforce the dignity and authority of the court, In re Marriage of
Winters, 2004 MT 82, ¶ 41, 320 Mont. 459, 87 P.3d 1005. In family law cases, “the best
remedy to [e]nsure respect for the law and the orderly progress of relations between
family members split by dissolution is to give effect to the contempt powers of the
District Court.” Milanovich v. Milanovich, 201 Mont. 332, 336, 655 P.2d 963, 965
(1982); see also Grounds, ¶ 3; Lee, ¶ 29. This is particularly true in high-conflict cases
like the present one. Recognizing this, we agree with those courts concluding that where
a parent fails to make reasonable efforts to require a recalcitrant child to attend visitation
as provided for in a parenting plan, the parent has not made a good faith effort to comply
with the parenting plan, and a contempt order may be appropriate. See, e.g., In re
Marriage of Rideout, 77 P.3d 1174, 1181-83 (Wash. 2003) (citing MacIntosh v.
MacIntosh, 749 N.E.2d 626, 630-31 (Ind. Ct. App. 2001); Smith v. Smith, 434 N.E.2d
749, 752 (Ohio Ct. App. 1980); Commonwealth ex rel. Ermel v. Ermel, 469 A.2d 682,
685 (Pa. Super. Ct. 1983)).
¶33 We find additional support for this conclusion in our statutes. A parenting plan
must be determined “in accordance with the best interest of the child.” Section
40-4-212(1), MCA. “[F]requent and continuing contact with both parents” is considered
16
to be in a child’s best interest, unless determined otherwise. Section 40-4-212(1)(l),
MCA. Further, it is recognized that “continuous and vexatious parenting plan
amendment actions” may have “adverse effects” on a child. Section 40-4-212(1)(m),
MCA. A parent is also required to make a good faith effort to comply with the provisions
of a parenting plan, or the dispute resolution provisions therein, before moving to amend
the plan. Section 40-4-212(4)(b), MCA. The policies reflected in these statutory
provisions support our conclusion that a parent must make a good faith effort to require
an unwilling child to attend visitation with a noncustodial parent if visitation is provided
for in a parenting plan.
¶34 A parent is not “a powerless bystander” in the decisions and actions of a child, and
has “an obligation to attempt to overcome the child’s resistance” to visitation. Rideout,
77 P.3d at 1182. A parent has “a great deal of influence over [a child’s] ideas and
feelings,” which carries with it an affirmative responsibility to nurture in the child a
positive regard for his or her other parent. Ermel, 469 A.2d at 685. Although we
recognize the difficulty, at times, of compelling a child’s compliance with parental—or
judicial—directives, a parent must make a good faith effort to do so. Hancock v.
Hancock, 471 S.E.2d 415, 419 (N.C. Ct. App. 1996) (contempt order not appropriate
where mother “did everything possible short of using physical force or a threat of
punishment to make the child go with his father.”). This obligation is in no way met
where a parent allows a child to disregard a court-ordered parenting plan, passively
submits to the child’s judgment about his or her own parenting arrangements, or actively
17
fosters animosity and distrust toward the other parent.2 The District Court was justified
in exercising its contempt powers to “[e]nsure respect for the law and the orderly
progress of relations between family members” in this case. Milanovich, 201 Mont. at
336, 655 P.2d at 965. We affirm.
¶35 2. Did the District Court err when it denied Tonia’s motion to hold David in
contempt for failure to pay child support?
¶36 Tonia argues the District Court was required to grant her motion to hold David in
contempt by default because David failed to file a timely response. Uniform District
Court Rule 2(a) provides that within 14 days of service of a movant’s brief, the opposing
party shall file an answer brief. Rule 2(b) states that failure to file briefs may subject a
motion to summary ruling. Tonia’s motion to find David in contempt for failure to pay
support was filed September 10, 2013. On September 27, 2013, she moved for entry of
default. David did not file an answer brief until October 3, 2013. Rule 2(b), however,
allows a trial court discretion to either grant or deny an unanswered motion. State v. Loh,
275 Mont. 460, 466, 914 P.2d 592, 596 (1996). The District Court acted within its
discretion when it decided to consider Tonia’s motion on the merits rather than issue a
summary ruling.
2
Throughout these proceedings, the parties appear to have held the belief that upon
reaching 14 years of age, a child is permitted to make his or her own parenting decisions. This is
not the case. When considering a motion to amend a parenting plan, a court may consider,
among other factors, whether “the child is 14 years of age or older and desires the amendment.”
Section 40-4-219(1)(c), MCA. While the child’s wishes may be one appropriate consideration,
they are not dispositive. Regardless of the child’s wishes, the parenting plan may not be
amended unless the court finds the amendment necessary to serve the best interest of the child.
Section 40-4-219(1), MCA. The best interest of the child must be determined by the court, and
not by the child.
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¶37 The District Court reviewed the extensive record in this case and determined that
although David had been ordered to pay Tonia those benefits designated for the support
of Tonia and B.J.M., he was never ordered to pay Tonia benefits he received for the
support of A.C.M. Moreover, the benefits designated for Tonia and B.J.M. were
terminated in September 2003. David was ordered to pay $494.00 per month in child
support for A.C.M., and the District Court found he had paid in excess of that amount.
Accordingly, the District Court concluded David was not in violation of the support
order. The record supports this conclusion. The District Court’s decision not to find
David in contempt for failure to pay support was not a blatant abuse of discretion. Lutes,
¶ 7. We affirm.
¶38 3. Did the District Court err when it imposed sanctions against Tonia?
¶39 Tonia claims the District Court erred when it granted David’s motion to impose
sanctions against her pursuant to M. R. Civ. P. 11. The District Court ordered Tonia to
pay David’s reasonable attorney fees and costs incurred in pursuing certain actions. The
District Court also required Tonia to obtain leave of court before filing any future
pleadings relating to the parenting of A.C.M. The amount of attorney fees and costs has
not yet been determined.
¶40 Pursuant to M. R. App. P. 6(1), a party may appeal from a final judgment or from
specified final orders, including, as previously noted, certain contempt orders in family
law proceedings under M. R. App. P. 6(3)(j). A final judgment is one that “conclusively
determines the rights of the parties and settles all claims in controversy in an action or
proceeding, including any necessary determination of the amount of costs and attorney
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fees awarded or sanction imposed.” M. R. App. P. 4(1)(a) (emphasis added). While the
contempt order is appealable under M. R. App. P. 6(3)(j), the award of sanctions is not
yet a final judgment as defined by M. R. App. P. 4(1)(a), because it does not include a
necessary determination of the amount of costs and attorney fees awarded. Tonia’s
appeal from the award of sanctions is therefore premature, and we remand for entry of a
final judgment, including a determination of the amount of costs and attorney fees
awarded.
CONCLUSION
¶41 We affirm the order finding Tonia in contempt for failure to comply with the final
parenting plan. We affirm the order refusing to find David in contempt for failure to pay
support. We decline to address the merits of the M. R. Civ. P. 11 sanctions against
Tonia, and remand for further proceedings consistent with this Opinion.
/S/ LAURIE McKINNON
We Concur:
/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ JIM RICE
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