Woolf v. Evans

No. 93-485
IN THE SUPREME COURT OF THE STATE O F MONTANA
1994
RHONDA SO WOOLF f/k/a RHONDA J O EVANS,
Petitioner and Appellant.
vs.
APPEAL FROM: District Court of the Fifteenth Judicial District,
In and for the County of Sheridan,
The Honorable M. James Sorte, Judge presiding.
COUNSEL OF RECORD:
F o r Appellant:
Richard A. Simonton; Simonton, Howe 6i Schneider,
Glendive, Montana
For Respondent:
Laura Christoffersen; Christoffersen & Knierim,
Wolf Point, Montana
Submitted on Briefs: January 7 , 1994
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
Rhonda Jo Woolf (Rhonda) appeals from an order of the
Fifteenth Judicial District Court, Sheridan County, holding her in
contempt. The court believed that Rhonda fabricated an incident of
child sexual abuse to deprive her former husband, Joseph Douglas
Evans (Joseph), of his telephonic visitation rights set forth in
their dissolution decree. Rhonda asserts error in the court's
contempt and evidentiary rulings. We affirm.
Rhonda and Joseph's marriage was dissolved in December of
1991. The dissolution decree granted Rhonda sole custody of their
minor daughter, Caitlin. Joseph was granted reasonable visitation,
including a ten-day visitation period every two months and the
right to telephone Caitlin twice a week.
On January 19, 1993, Joseph filed a motion with the District
Court requesting that his entitlement to a ten-day visitation
period every two months be changed to a twenty-day visitation
period every four months. Joseph sought the modification to
address logistical difficulties, arising from Rhonda and Caitlin's
move to Idaho, in exercising his visitation rights. Rhonda
subsequently filed a motion for modification in an Idaho court
which was later dismissed for lack of jurisdiction. Following a
hearing held March 4, at which Rhonda did not appear, the District
Court modified the dissolution decree to provide Joseph with a
fifteen-day visitation period every three months.
The events leading to the court's contempt ruling occurred
while the parties were attempting to modify the dissolution decree.
Caitlin, who was then three years old, visited her father from
January 19 to February 2, 1993. For more than three weeks
following that visit, Joseph continued to speak with Caitlin over
the telephone: their last telephone conversation occurred on
February 27. Joseph's attempts to call Caitlin on March 3, 4 and
6 were unsuccessful. On March 7, Rhonda's husband answered
Joseph's telephone call, informed Joseph that unspecified charges
were being brought, and advised Joseph not to call again. Rhonda
intervened in, and refused, Joseph's subsequent attempts to speak
with Caitlin.
On April 7, Joseph petitioned the District Court to issue an
order directing Rhonda to show cause why she should not be held in
contempt for violating the visitation rights specified in the
dissolution decree. He also requested an award of attorney's fees
incurred in enforcing his visitation rights. The District Court
granted Joseph's petition and a show cause hearing was held on May
20. The District Court subsequently issued its findings of fact,
conclusions of law, and order. The court held Rhonda in contempt,
ordered that she comply with the dissolution decree, and awarded
attorney's fees to Joseph.
Did the District Court err by holding Rhonda in contempt?
Contempt of court is a discretionary tool used to enforce
compliance with a court's decisions. The power to inflict
punishment by contempt is necessary to preserve the dignity and
authority of the court. Marriage of Jacobson (1987), 228 Mont.
458, 464, 743 P.2d 1025, 1028.
As a general rule, contempt orders are final and not
reviewable by this Court except by writ of certiorari. Section 3-
1-523, MCA. We have created an exception in family law cases,
however, and review contempt orders on appeal. In re Pedersen
(Mont. l993), 862 P.2d 411, 414, 50 St.Rep. 1338, 1340. Our review
is limited to examining the record to determine whether the
district court acted within its jurisdiction and whether evidence
supports the finding of the court with respect to the contempt.
Pedersen, 862 P.2d at 414. Rhonda does not raise a jurisdictional
issue.
Here, the contempt ruling was based on the District Court's
finding that the testimony of Rhonda and Joseph was consistent in
important part and its belief that Rhonda had fabricated an
incident of child sexual abuse in order to deprive Joseph of the
visitation rights to which he was entitled. We review the record
to determine whether evidence supports the contempt ruling.
At the hearing, Rhonda testified that she became aware of the
alleged sexual abuse during a conversation with Caitlin a few days
after the February 27 telephone call. In that conversation,
Caitlin purportedly revealedthat Joseph had touched her pubic area
causing "redness" and "bleeding." Joseph testified that Caitlin's
comments to Rhonda probably referred to his application of ointment
to a rash Caitlin had during the January visit. Rhonda's own
testimony indicated that the rash existed immediately prior to the
visit. Thus, the testimony of both Joseph and Rhonda provided the
same explanation for Caitlin's comments regarding touching, redness
and bleeding in the pubic area and supported the court's finding of
consistent testimony.
To determine whether evidence supports the District Court's
belief that Rhonda had fabricated the sexual abuse allegation, we
examine the conflicting evidence advanced by Rhonda and Joseph. To
justify her belief that Caitlin had been abused by Joseph, Rhonda
testified as to the conversation in which Caitlin purportedly
revealed the sexual abuse. The record is unclear, however, as to
the date the conversation occurred. Although Rhonda testified that
the conversation followed Joseph's unsuccessful telephone calls of
March 3 and 4, she also testified that her conversation with
Caitlin took place a few days after the February 27 telephone
conversation and that she knew of the alleged sexual abuse prior to
March 4.
In addition to the purported conversation with caitlin, Rhonda
testified that she believed Caitlin had been sexually abused by
Joseph because of a change in Caitlin's behavior. Rhonda stated
that Caitlin would become upset and begin to cry during her
telephone conversations with Joseph following the January visit.
She also testified that Caitlin began to frequently wet herself and
have nightmares following the February 27 telephone conversation
with Joseph. She presented no other evidence to support her
account of Caitlin's behavioral changes.
Rhonda also testified that, on unspecified dates, she took
Caitlin to Dr. Hal W. Davis, a physician at a children's medical
center, and to an unnamed social worker at the Idaho Department of
Health and Welfare. She attempted to justify her termination of
the telephonic visitation by repeating verbal recommendations by
Dr. Davis and the social worker that all contact between Caitlin
and Joseph be terminated. Rhonda did not testify as to when these
purported statements were made. Upon objection, the District Court
ruled that the statements of Dr. Davis and the Idaho social worker
were inadmissible hearsay.
Finally, Rhonda attempted, through the testimony of Pamela
Hodges (Hodges), a community social worker for the State of
Montana, to introduce a letter from Dr. Davis, dated April 30,
1993. Although the District Court refused to admit the letter
itself on hearsay grounds, the content of the letter was read into
the record by Hodges. It indicated that Dr. Davis had examined
Caitlin on May 5, which post-dated the date of the letter, and that
he recommended the termination of all contact between Joseph and
Caitlin at the time of the exam. The content also indicated Dr.
Davis' belief that Caitlin had been sexually abused by her father,
although it does not set forth any medical findings of sexual abuse
or the basis for his determination that Joseph was the perpetrator.
No motion was made to strike that portion of Hodges' testimony and,
therefore, the content of the letter remained of record.
The evidence advanced by Joseph as to Caitlin's reaction to
him contradicts Rhonda's position. He testified that he spoke with
Caitlin over the telephone five times between February 2 and 27.
According to Joseph, Caitlin neither sounded upset nor cried during
these telephone conversations. Indeed, Joseph characterized the
February telephone conversations as no different than the
conversations with Caitlin which preceded the January visit.
Edith Wilson, Joseph's neighbor who babysat Caitlin during the
January visit, testified to Joseph's warm rapport with Caitlin and
Caitlin's lack of fear toward him during that time. She also
indicated that Caitlin felt free to talk about Joseph, recounting
a specific conversation in which she felt Caitlin would have
expressed some indication of the sexual abuse if it had occurred.
The resolution of the conflicting evidence presented by Rhonda
and Joseph necessarily entails an assessment of their credibility.
It is clear that the District Court considered the parties'
credibility in weighing the evidence and believed that Rhonda had
fabricated an incident of child sexual abuse in order to deprive
Joseph of his visitation rights. The credibility of the witnesses
and the weight to be given their testimony in a contempt proceeding
are matters for the district court's determination and are not
reviewable by this Court. Marriage of Milanovich (1982), 201 Mont.
332, 335, 655 P.2d 963, 964. We conclude that sufficient evidence
supports the District Court's belief that Rhonda fabricated the
sexual abuse allegation.
The District Court's finding as to Rhondalsfabrication of the
child abuse allegation undermines her reliance on Marriage of
Jacobsen (1987), 228 Mont. 458, 743 P.2d 1025, for error in the
court's contempt ruling. There, we determined that the district
court properly denied the father's motion for contempt based on its
finding that the mother had refused visitation out of a concern for
the health of the minor child. Jacobsen, 743 P.2d at 1028. The
District Court's finding of fabrication in the case before us is
the opposite of the operative finding in Jacobsen. Nothing in that
case suggests that this Court properly may substitute its judgment
for that of a district court in making a finding based to such a
large extent on credibility and weighing of evidence.
The disobedience of a lawful court order constitutes contempt
of the authority of the court. Section 3-1-501(l)(e), MCA. Thus,
the District Court's belief that Rhonda fabricated the incident of
sexual abuse to deprive Joseph of visitation rights pursuant to the
dissolution decree, a lawful court order, is a sufficient basis for
its contempt ruling. We hold that the District Court did not err
in holding Rhonda in contempt.
Did the District Court abuse its discretion in refusing to
admit out-of-court statements made by Dr. Davis and a social worker
from the Idaho Department of Health and Welfare?
As set forth above, Rhonda attempted to testify as to verbal
statements made by Dr. Davis and the Idaho social worker and to
introduce a letter from Dr. Davis recommending the termination of
all contact between Joseph and Caitlin. The District Court ruled
that the evidence was inadmissible hearsay. Evidentiary rulings
are within the sound discretion of the district court and are
reviewed only for manifest abuse of that discretion. Mason v.
Ditzel (1992), 255 Mont. 364, 370-71, 842 P.2d 707, 712.
Hearsay is a statement, not made by the declarant while
testifying at the trial, which is offered in evidence to prove the
matter asserted. Rule 801(c), M.R.Evid. Rhonda agrees that the
statements at issue here meet the first portion of the hearsay
definition as statements by declarants not testifying. She
contends, however, that the evidence was offered to prove its
effect on her state of mind in refusing further telephonic contact
between Joseph and Caitlin, rather than for the truth of the
matters stated. On that basis, she asserts that the offered
statements are not hearsay and are admissible under Moats Trucking
Co. v . Gallatin Dairies (1988), 231 Mont. 474, 753 P.2d 883.
In Moats Truckinq, we determined that a witness1 testimony
regarding a conversation between two other individuals was not
hearsay under Rule 801(c), M.R.Evid., because it was offered to
show the resulting effect of the out-of-court statements on the
witness' state of mind and why a party acted as it did. Moats
Truckinq, 753 P.2d at 886. We relied on Brown v. Homestake
Exploration Corp. (1934), 98 Mont. 305, 39 P.2d 168, where we
addressed a similar situation involving testimony of an out-of-
court conversation admitted to show that the statements were made
and relied on by the testifying witness. Brown, 39 P.2d at 179.
We quoted the following language from Brown:
Wherever an utterance is offered to evidence the state of
mind which ensued in another person in consecluence of the
utterance, it is obvious that no assertive or testimonial
use is sought to be made of it, and the utterance is
therefore admissible, so far as the hearsay rule is
concerned.
Moats Truckinq, 753 P.2d at 886 (emphasis added). Thus, if the
witness1 state of mind resulted from the out-of-court statement,
9
the statement is not hearsay and is admissible under Moats
Truckinq.
Here, Rhonda failed to establish that her state of mind in
refusing telephonic contact resulted from the statements she
offered into evidence. The first clear violation of the telephonic
visitation occurred on March 7, 1993. Rhondats offered evidence
did not establish that the statements were made prior to this time.
Rhonda's own testimony did not establish the dates of the verbal
recommendations by Dr. Davis and the Idaho social worker. The
offered letter from Dr. Davis, dated April 30, 1993, clearly
followed the termination of the telephonic visitations. Nor does
the letter provide evidence that Dr. Davis' verbal recommendation
preceded the termination; it indicates that the recommendation was
made during an examination of Caitlin on May 5, a date which post-
dates the writing of the letter. Rhonda attempts to rely on
another letter from Dr. Davis to establish the date of his verbal
recommendation. That letter was never offered into evidence,
however, and is not part of the record before us.
Absent evidence establishing that the statements were made
prior to Rhonda's termination of Joseph's telephonic visitation
rights, resulted in her state of mind and were relied on by her in
terminatingthe telephone visits, the statements are not admissible
as nonhearsay under Moats Truckinq. We conclude that the District
Court did not abuse its discretion in refusing to admit the out-of-
court statements made by Dr. Davis and the Idaho social worker.
Did the District Court err in entering a conclusion of law
regarding the absence of rvserious
endangermenttsunder 5 40-4-217,
MCA?
Rhonda contends that the District Court erred in entering a
conclusion of law regarding the absence of "serious endangerment"
under 5 40-4-217, MCA, because the sole purpose of the hearing was
whether she should be held in contempt of court. We agree that the
conclusion exceeded the scope of the show cause hearing.
To constitute reversible error, however, the court's action
must affect substantial rights of the complaining party. Davis v.
Church of Jesus Christ of LDS (1990), 244 Mont. 61, 71, 796 P.2d
181, 186. Here, the District Court's erroneous entry of a
conclusion under 5 40-4-217, MCA, did not affect Rhonda's
substantial rights in light of our affirmance of the court's
sufficiently supported contempt ruling.
Affirmed.
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4 Chief Justic