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### IN THE SUPREME COURT OF THE STATE OF MONTANA OP 21-0311 

# FILED
SCOTT R. MORGAN, 

### OCT 0 52021

Petitioner, v. THE HONORABLE RIENNE H. McELYEA, EIGHTEENTH JUDICIAL DISTRICT COURT,

Respondent. Bowen Greenwood Clerk of Supreme Coun State of Montana 

### ORDER

In our June 22, 2021 Order, this Court deemed Scott R. Morgan's (Scott) appeal of
a lone contempt order inNo.DA 21-0285 as an originalproceeding, specifically, a petition for a writ of review, and ordered briefing while holding in abeyance the underlying dissolution proceeding in the Eighteenth Judicial District Court, Gallatin County, pending this Court's review. Scott has filed his brief, and Amy Morgan (Amy), through counsel, has filed herresponse brief. This Court has received copies ofthe June 15, 2020 transcript for the hearing on Amy's contempt motion, and Scott has filed an affidavit in support of his petition. This proceeding began in March 2018 when Amy filed a complaint for legal separation. The parties have four minorchildren. The District Court referredthe matter to the Standing Master. Both parties initially appeared with counsel, and a hearing on the parenting plan was held. The District Court converted the action to a dissolution of marriage proceeding in May 2019. The parties filed a Stipulated Marital Property Settlement Agreement and a Stipulated Final Parenting Plan, which were approved by the District Court in its findings of fact, conclusions of law, and final decree ofdissolution. Scott agreed and was ordered to pay $1,528 per month in child support, effective September 2018. On approval ofthe court, counsel for Scott withdrew at that time. Amy filed her first motion for contempt with the court in June 2019, because Scott had already fallen six months behind on his child support obligation. Scott responded by 10/05/2021

Case Number: OP 21-0311urgingthat the conflict should be directed to mediation, which the District Court ordered.

In August 2019, Amy filed a second motion for contempt and requested a hearing, which the District Court conducted on August 8, 2019. The court found that Scott failedto abide by the terms ofthe Stipulated Marital Property Settlement Agreement, and found him in contempt, sentencing him to two days of jail time. The court also gave Scott the opportunity to purge the contempt and dSnied Amy's request for attorney's fees and costs. However, in early 2020, Amy renewed her request for contempt becaus'e Scott had not paid any child support and owed $27,504. The court held a hearing on June 15, 2020, after the filing ofScott's response and a continuance. After a hearing, the court entered a Contempt Order onJune 17, 2020. The courtheld Scott in contempt, ordered him to spend five days in detention, and provided he could purge his contempt by paying a single monthly payment ofhis support obligation of$1,528 by July 1, 2020, selling one ofhis businesstrucks, a2004 1-TonDodgepickuptruck,within45 days andpaythe equity above the lien toward his support obligation, andpayingthe reinaining arrearage over 24 months in equal installments. Amy was also granted her attorney fees and costs. This Order and the court's subsequent Orders are the basis ofScott's request for review. Pursuant to § 3-1-523, MCA,this Court may revieworders ofcontemptunder awrit of certiorari. "This Court reviews contempt orders to first determine whether the court acted within itsjurisdiction and second whether there is evidence to support the finding of contempt." AnimalFound. ofGreatFallsv. Mont. EighthJudicialDist. Ct.,2011MT289, ¶ 16, 362 Mont. 485, 265 P.3d 659 (citation omitted). Section 27-25-101,MCA, provides that a "writ of certiorari may be denominated the writ ofreview." A writ ofreview may be granted by "the supreme court

. . . in proceedings for contempt in the district court" or "'when a [district court]has exceeded [its]jurisdiction

. . . and there is no appeal or, in the judgment ofthe court, any plain, speedy, and adequate remedy.'" Cross Guns v. Eighth JudicialDist. Court, 2017MT 144, 387, ¶8,Mont. 525, 396 P.3d 133 (citing § 27-25-102, MCA). Montana Rule of Appellate Procedure 14(2) provides that a writ of review or certiorari is an extraordinarywritwhich "shall be commenced and conducted inthemanner

2prescribed by the applicable sections ofthe Montana Code Annotated for the conduct of

such or analogousproceedings and by these rules." "A contempt is civil if the sanction imposed seeks to force the contemnor's compliance with a court order," and provides "the contemnor can end the incarceration or avoidthe finebycomplyingwith acourtorder." Section3-1-501(3),MCA;see VanSlcyock

v. Manley, 2017MT 99, ¶ 13, 387Mont. 307, 393 P.3d 1068 ("a cognizable claim for civil contempt must seekto compel performance of'an actthat is inthepower ofthe contemnor to perform."). In contrast, a contempt is criminal "ifthe court's purpose in imposingthe penalty is to punish the contemnor for a specific act and to vindicate the authority ofthe courtM" and "the contemnor cannot end the incarceration or avoid the fine by complying with a court order." Section 3-1-501(3), MCA; VanSkyock, ¶9 ("A contempt proceeding is criminal ifthepurpose oftheproceedingisto impose a penalty 'topunish the contemnor for a specific act' thereby `vindicat[ing] the authority ofthe court.") (citations omitted). The contempt hereis civil contempt, becausethe Order gave Scott the opportunityto purge the contempt. "The second critical characterization of an order or judgment of contempt is to identify whether the contempt was committed in the presence ofthe court and requires the court to take immediate action, § 3-1-511, MCA, or instead was not committed in immediateitiewandpresenceofthecourt, inwhich casetheprovisions of§ 3-1-518,MCA, dealing with an indirect contempt apply." Cross Guns, ¶ 15. As explained in the statute, direct contempt "is committed inthe immediate view andpresence ofthe court orjudge at chambers, and the contemptuous conduct requires immediate action in order to restore order, maintain the dignity or authority ofthe court, or prevent delay[t Section 3-1-511, MCA. In contrast, indirect contempt is"not committed intheimmediateviewandpresence ofthe court orjudge at chambers

. . . ." Section 3-1-518(1), MCA. Here, Scott did not comply with the court's prior child support orders. This contempt did not occur in the irnmediate view and presence ofthe court orjudge. See Malee v. Dist. Ct.for the Second JudicialDist., 275 Mont. 72, 75, 911 P.2d 831, 832 (1996) ("Indirect contempt is often a

3matter ofa party not following a court's order.") (citations omitted). Thus, this is indirect,

civil contempt. Regarding the merits, Scott argues "[t]he 2004 Dodge is a necessary and primary piece ofequipment for business operations." He contends that he must have two business vehicles in case one truck breaks down. He contends he has lost income because ofbeing forced to relocate his business to a less favorable location due to the dissolution of marriage, the effect ofthe novel coronavirus, and inclement weather. He faults the court for finding that he had "prioritized his own expenses instead of paying" child support, because "'prioritizing' is not against the law." He states that the Judge has not considered all of his challenges and "has a history of not judging fairly." Scott challenges the impositionofattorney's fees and costsbecause "itshows alack ofregard for alevelplaying field." Scott requests that this Court reverse the order ofcontempt. Amy notes that Scott testified during the June 15, 2020 hearing that it would be possible for him to sell one ofhis business trucks "to help pay the arrearages[.]" Indeed,

we note that Scott, through counsel, moved to amend the 2018 temporary economic restraining order in January 2019 to allow the sale of assets, including the 2004 Dodge truck. Based on this record, Amy argues it was reasonable for the District Court to order Scott to sell the truck to apply to his overdue child support obligation. Despite his earlier concessions about the truck, Scott now argues "the 2004 Dodge is a necessary and primary piece ofequipment for business operations." He contends the relocation of his business slowed his income, but that occurred over two years ago. The court recognized the possible effect of the novel coronavirus on Scott's busihess, but reasoned thatthis was not the cause ofhis failure to pay support, and that his business was and would continue to dowell:

[B]ut in this case, it's not COVID-19 that appears to have prevented Mr. Morgan from paying his child support. It is a combination ofthe wet season and so forth, but he is able to work, and he's testified today that he has more work than he is, actually, able to perform. He believes, in his testimony, that his business is doing well, and he [believes] that he will continue to do well.

4The [c]ourt concludes here today thathiswork ispickingup. That he

has one asset that can be sold -- that he's tried to sell -- and that is the 2004 Dodge one ton. He believes he can sell it for, approximately, $30,000 with a $1,0,000 lien.
While Scott contends thejudge was unfair, the record indicates the court has been patient with Scott. In 2019, the parties agreed to abide by the provisions ofthe Stipulated Marital Property Settlement Agreement and the Stipulated Parenting Plan. Scott agreed to pay monthly child support of$1,528 per month. Scott received both the 2016 DodgeRam and2004Dodgetruckinthe StipulatedMarital Property SettlementAgreement, alongwith the release of the economic restraining order. The May 22, 2019 Findings of Fact, Conclusions of Law, and Final Decree of Dissolution provided that "[v]iolation of the Settlement Agreement may be deemed a contempt ofthis [c]ourt and punishable as such." In earlier proceedings, the District Court declined to order sale of the 2004 Dodge truck, but the child support is not being paid despite the granting ofadditional time.1 Even so, the court so far declined to order the sale of Scott's mountain bike or other assets. The District Court denied Amy's earlier requests for attorney fees and costs, butAmy has been forced to pursue the support, and the substantial evidence supported the fee award. Lastly, Scott argues that his pending motion to modify his child support has not been ruled upon, but that motion would address his future obligation, not the need to satisfy past orders for support. Scott is presumed to be in contempt for his failure "to pay support as ordered." Section 40-5-601(5)(c), MCA. We conclude Scott has not demonstrated the District Court acted beyond its jurisdiction, or that there was not substantial evidence to support its contempt determination. Therefore,

Amy has filed notices ofstatus reports with the court, indicating that Scott continued to fail to pay any child support payments. On February 19, 2021, after we dismissed Scott's appeal, Amy moved for enforcement ofthe court's contempt order, noting Scotthad not spent five days injail, sold his truck, or made any child support payments. 5

### IT IS ORDERED that Scott's Petition for Writ of Review is DENIED and

DISMISSED. IT IS FURTHER ORDERED that this matter is CLOSED ofthis Order's date, and the court record should be returned as soon as possible to adjudicate pending issues in the District Court. The Clerk ofthe Supreme Court is directed to provide a copy to: the Honorable RienneMcElyea,EighteenthJudicial District Court,GallatinCounty;SandyErhardt,Clerk of Court, Gallatin County, under Cause No. DR-18-105B; counsel of record, and Scott Morgan personally. DATED this ,S~ day ofOctober, 2021.

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### Justices