INTHE SUPREME COURT OF THE STATEOF MONTANA

THE STATEOF MONTANA, ex rel. JAYVOORHIES, Relator, No. 83-117

DISTRICTCOURT OF THETHIRD JUDICIAL DISTRICT OF THE STATE OF MONTANA, INAND FOR THE COUNTY OF DEER LODGE,AND THE HONORABLE ROBERT J. BOYD, presiding as DistrictJudge. Respondents.

ORDERAND OPINION

This Court accepted a petition for a writ of certiorari from Jay Voorhies, relator,who contends that the Deer Lodge County District Court exceeded its jurisdictionwhen it found him in willful contempt of a marital dissolution decree providing that he must make the house payments "until the minor children attain the age of 18years or no longer reside in the home.

### " He argues the trial court failed to consider his ability topay. We affirm the contemptorder. The marital dissolution decree was entered by the Deer Lodge County District Court on August 13, 1980. Since then, the father's failure to pay the house payments has triggered two attemptsby the wife tohave him held in contemptand two petitions by the father tomodify the decree. In addition to the order requiring the father to make the monthly house payments, the father was also ordered to pay $150 per month child support for each child.In May 1981, the father stopped making house payments and in September the son came to live with the father while the daughter remainedwith themother. Themother asked that the father be held in contempt for failure to make the monthly house payments a.ndthe father moved to modify the decree on custody. After ahearing on both issues, the trial court changed custody of the son from the mother to the father, but also found that the father was in contempt for failure to make the house payments. In ruling on the house payments, the trial court ordered the father to make them because "the necessity of providing support and shelter for his minor daughter remains constant." Clearly, the father's obl-igation under the decree to make house payments was unaffected by his obtaining custody of the son. The father did not appeal from the order findinghim in contemptor from the order compelling him to continue making themonthly house payments. Sixteen months later (inApril 1982), the father again stopped making the monthly house payments. Tenmonths later (in January 1983), the mother obtained an order for the father to show cause why he had stopped making the monthly house payments. A hearing was set forMarch 2, 1983,and on that date the father filed a response in which he asked that the trial court modify the house payment provision of the decree. His petition alleged no facts occurred after the last dissolution decree on which he based his request to modify. However, the father testified at the hearing thathe had recently bought some property and that the payments on the property ($194.78 per month) prevented him from making the house payment ($190per month). The trial court did not accept his explanation, finding that the father hadvoluntarily incurred the additional obligation that prevented him from making the house payment required in the dissolution decree. The trial court found the father in contempt for failure tomake the housepayments. The father then petitioned this Court for a writ of certiorari and we entered a stay order. In arguing that the trial court's contempt order should be set aside, the father relies on both the firstmodification hearing and the second modification hearing. First, he contends that when his son
came to live with him he no longer had to make the house payments. However, the trial court ruled against him and found in the first modification order that the father'sduty to make the house payment to support his daughter remained constant, and was not affected by the fact that his son was then living with him. The father did not appeal from that ruling and he cannot now raise it as a defense to the contemptorder. Second,the father argues that at the second hearing the trial court did not consider his ability to pay. But the court found that the father had voluntarily incurred other obligationsand thathe could not use those obligations by which to relievehimself of the duty ofmaking themonthly house payments. We agree. The father undertook these voluntary obligations knowing that he had an obligation to make the monthly house payments. His duty to make the monthly housepayments comes first. Because the District Court clearly had jurisdiction to hold Jay E. Voorhies inwillful contempt,the application for a writ of certiorari is denied, and these proceedings are dismissed. DATED this/wdayof August, 1983.LC. s

WeConcur: 

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# 4% @+, Chief Justfce

,.' Justices