IN RE THE MARRIAGE OF: JENNA C. HOBART, n/k/a JENNA C. KAVANAUGH, Petitioner
HOBART, Respondent and Appellant. and Appellee, And JEFFREY
Submitted on Briefs: November 29, 2017
Court of the Eleventh Judicial District, In and For the
County of Flathead, Cause No. DR-15-878 (C) Honorable Heidi
Ulbricht, Presiding Judge
Appellant: David F. Stufft, Attorney at Law, Kalispell,
Appellee: Katherine P. Maxwell, Law Office of Katherine P.
Maxwell, PLLC, Kalispell, Montana
McGrath, Chief Justice.
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
Jeffrey Hobart (Hobart) appeals a decision by the Eleventh
Judicial District Court denying Hobart's Motion to Set
Aside Order of Contempt. We affirm.
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.
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.
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
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.
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.
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
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 ...