Marriage of Ramstad

No. 02-596
IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 39N
IN RE THE MARRIAGE OF
TERRI LEE RAMSTAD,
Petitioner and Respondent,
and
BARRY LYNN RAMSTAD,
Respondent and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead, Cause No. DR-00-530(A)
The Honorable Ted O. Lympus, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Peter F. Carroll, Attorney at Law, Kalispell, Montana
For Respondent:
Paula M. Johnson, Attorney at Law, Whitefish, Montana
Submitted on Briefs: January 23, 2003
Decided: March 11, 2003
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray, delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent. It shall be filed as
a public document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.
¶2 The Eleventh Judicial District Court, Flathead County, granted Terri Lee Ramstad's
petition for a decree of legal separation from Barry Lynn Ramstad in January of 2001 and,
in January of 2002, dissolved their marriage. In April of 2002, the court held a hearing on
Barry's motions to modify the parenting plan, terminate his maintenance obligation to Terri
and modify child support, and Terri's motion to hold Barry in contempt for failing to pay
maintenance. Barry appeals from the order entered by the District Court following that
hearing. We affirm.
¶3 After the post-dissolution hearing, the District Court declined to modify Barry's
original maintenance obligation of $350 per month for three years and found him in
contempt for failing to pay the maintenance as ordered. The court also ordered Barry to pay
Terri's attorney fees. On appeal, Barry contends the District Court abused its discretion in
failing to terminate his maintenance obligation to Terri and that substantial evidence does
not support the court's contempt finding. He also argues the court abused its discretion in
awarding Terri attorney fees.
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¶4 Barry first asserts that, in obtaining the original maintenance order on his default after
he failed to answer the petition, Terri under-reported her income and inflated his. He did
not, however, appeal the original order. On appeal in this case, Barry claims Terri continues
to under-report the income she receives from tips. However, the District Court's findings on
the amount of Terri's tip income are supported by her testimony and copies of income tax
documents she filed with the court. We will not substitute our judgment for that of the finder
of fact as to the weight of evidence and credibility of witnesses. In re Marriage of Drake,
2002 MT 127, ¶ 20, 310 Mont. 114, ¶ 20, 49 P.3d 38, ¶ 20 (citations omitted).
¶5 Barry next contends that, in refusing to modify maintenance after the post-dissolution
hearing, the District Court failed to consider whether he could both support himself and
make the maintenance payments, ignoring his testimony about his "financial distress." He
states the difference between his and Terri's incomes, as represented by Terri in the
dissolution hearing and established by the evidence at the post-dissolution hearing,
constitutes "changed circumstances so substantial and continuing" as to make the
maintenance terms unconscionable. See § 40-4-208(2)(b), MCA.
¶6 Employment changes which increase the income of a maintenance recipient do not
automatically entitle a maintenance payer to modification of the maintenance award where
there is no showing of unconscionability and the recipient is still not able to meet his or her
needs. Brandon v. Brandon (1995), 271 Mont. 149, 155, 894 P.2d 951, 955. In this case,
the Child Support Worksheet from March of 2002, submitted for the post-dissolution
hearing, set forth Barry's earned income as $41,728 and Terri's as $14,685; the figures upon
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which the court had relied earlier in granting the dissolution were $47,000 and $10,712,
respectively. Neither party had changed employment and their incomes remained, in the
words of the District Court, "disparate." In addition, Terri submitted an exhibit showing that
her monthly expenses exceeded her monthly income--excluding child support and
maintenance--by $1,070. We hold that the District Court did not abuse its discretion in
concluding there had not been a sufficiently substantial change in circumstances since the
original decree to warrant modification of the maintenance provision.
¶7 With regard to the District Court's contempt finding, Barry points out that where the
facts do not support willful disobedience of an earlier order, a court is not bound to find
contempt of court. See Grenfell v. Grenfell (1982), 200 Mont. 490, 493, 652 P.2d 1170,
1171 (citations omitted). He asserts he could "barely afford to live" on the income he had
left after paying child support, and his failure to pay maintenance was not willful. We
observe in this regard that Grenfell does not preclude a court from finding contempt absent
willful disobedience; it merely states a court is not required to find contempt unless willful
disobedience is established.
¶8 We review a judgment of contempt to determine whether there is substantial evidence
to support it. Morton v. Lainer, 2002 MT 214, ¶ 27, 311 Mont. 301, ¶ 27, 55 P.3d 380, ¶ 27.
Terri points to the evidence at the post-dissolution hearing that Barry had income of over
$41,000 per year, whereas she and the two minor children--who only visited Barry one or
two days per month--were existing on her annual income of $14,685 plus the child support.
Even accepting Barry's evidence that he had income in excess of expenses each month of
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$150, the District Court noted Barry did not make a single $350 per month maintenance
payment or partial payment from the date of the decree of dissolution through the entry of
judgment on the post-dissolution hearing, some 18 months later. We conclude substantial
evidence supports the District Court's finding that Barry was in contempt.
¶9 Finally, on the attorney fee issue, Barry points out the District Court did not make any
specific findings relative to the ability to pay. He relies on In re Marriage of Gingerich
(1994), 269 Mont. 161, 168, 887 P.2d 714, 718, for the proposition that, without supporting
findings of fact, an award of attorney fees is an abuse of discretion. Barry mischaracterizes
Marriage of Gingerich. Moreover, Terri properly relies on a more recent case, Schmeiding
v. Schmeiding, 2000 MT 237, ¶ 34, 301 Mont. 336, ¶ 34, 9 P.3d 52, ¶ 34, in which we
determined that even if a district court does not delineate its factual reasons for awarding a
party attorney fees, the findings as a whole can adequately support an award of attorney fees.
¶10 Here, on the record and findings as a whole, and considering Terri's limited income
and the disparity in the parties' incomes, we conclude the District Court did not abuse its
discretion in awarding Terri her reasonable attorney fees for the post-dissolution hearing.
¶11 Affirmed.
/S/ KARLA M. GRAY
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We concur:
/S/ PATRICIA COTTER
/S/ JIM RICE
/S/ W. WILLIAM LEAPHART
/S/ JIM REGNIER
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