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In re Marriage of Hobart

Supreme Court of Montana

January 30, 2018

HOBART, Respondent and Appellant. and Appellee, And JEFFREY

          Submitted on Briefs: November 29, 2017

         District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DR-15-878 (C) Honorable Heidi Ulbricht, Presiding Judge

          For Appellant: David F. Stufft, Attorney at Law, Kalispell, Montana

          For Appellee: Katherine P. Maxwell, Law Office of Katherine P. Maxwell, PLLC, Kalispell, Montana


          Mike McGrath, Chief Justice.

         ¶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 Jeffrey Hobart (Hobart) appeals a decision by the Eleventh Judicial District Court denying Hobart's Motion to Set Aside Order of Contempt. We affirm.

         ¶3 On September 7, 2016, Hobart and Jenna Kavanaugh (Kavanaugh) signed a Parenting Plan and Separation and Property Settlement Agreement (Agreement). The Agreement required Hobart to pay Kavanaugh $7, 000 within ten days of the receipt of his annuity in November 2016 for family support. The Agreement awarded Kavanaugh possession of a 2015 Toyota RAV4 that the couple began to lease shortly before their divorce. The Agreement required that Kavanaugh make the monthly lease payments of $374.90.

         ¶4 Kavanaugh could not keep up with the monthly lease payments for the RAV4. On October 13, 2016, Hobart went to Kavanaugh's residence and picked the vehicle up along with its documentation. On December 7, 2016, Hobart's counsel wrote to Kavanaugh's counsel, saying Hobart did not want to make the lease payments and would deliver the car back to Kavanaugh the following day along with the $7, 000 family support payment. Hobart failed to do so and continued to drive the vehicle and make lease payments.

         ¶5 On January 11, 2017, Kavanaugh filed a Motion for Contempt and to Modify Decree. Along with the provision regarding the RAV4, Kavanaugh also asked the District Court to modify the Agreement to allocate $2, 229.14 that had accumulated in an escrow account to cover insurance and property taxes for the family home. Because the loan was in Hobart's name, the escrow balance was refunded to him after closing. These funds were not mentioned in the original Agreement. Kavanaugh's counsel certified that she mailed the motion to Hobart's counsel on January 11, 2017. Hobart did not respond to the motion.

         ¶6 On January 17, 2017, the District Court issued an Order to Show Cause requiring Hobart to appear on February 8, 2017, and show cause why he should not be found in contempt for failing to pay family support. Hobart did not appear at the show cause hearing on February 8, 2017. Hobart's attorney alleges that he did not appear because he was ill and did not know about the hearing. Further, the attorney acknowledged he did not advise his client because during this time, the attorney had stayed home and did not check the online District Court calendar.

         ¶7 On February 13, 2017, the District Court issued its Findings of Fact, Conclusions of Law and Order on Contempt, as well as its Order Modifying Decree. The District Court held Hobart in contempt for not paying Kavanaugh $7, 000 in family support. The District Court modified the Agreement, making Hobart responsible for the lease payments on the RAV4 and ordered Hobart to pay Kavanaugh half of the escrow amount. The District Court's minute entries following the February 8, 2017 show cause hearing indicate that the court ruled Hobart could purge the contempt by paying the full amount of family support within thirty days. Hobart did not pay the amount due within thirty days, and he filed a Motion to Set Aside Order of Contempt on February 13, 2017.

         ¶8 Hobart's counsel argued that the contempt order should be vacated because his conduct constituted "excusable neglect" pursuant to M. R. Civ. P. 60(b)(1) and (b)(6). Hobart alleged that the contempt order and modifications were the result of Kavanaugh "and her attorney failing to inform the Court what was ongoing" and that the District Court's finding was not supported by substantial evidence. On May 1, 2017, the District Court denied Hobart's motion. On June 1, 2017, the District Court ordered Hobart to pay Kavanaugh $2, 152 for attorney fees and costs pursuant to an attorney fee provision within the Agreement.

         ¶9 Montana law does not provide for an appeal from a contempt order; the exclusive method of review in civil proceedings is by application for writ of certiorari. Section 3-1-523(1), MCA. However, a party may appeal a contempt judgment or order in a family law proceeding 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. If the family law exception applies, this Court reviews contempt orders to first determine whether the district court acted within its ...

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