IN THE SUPREME COURT OF THE STATE OF MONTANA 

THE STATE OF MONTANA, 

ex rel. JAY VOORHIES, 

Relator, 

No. 83-117 

DISTRICT COURT OF THE THIRD 

JUDICIAL DISTRICT OF THE STATE 

OF MONTANA, IN AND FOR THE 

COUNTY OF DEER LODGE, AND THE 

HONORABLE ROBERT J. BOYD, 

presiding as District Judge. 

Respondents. 

ORDER AND 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 jurisdiction when 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 18 years or no longer reside 

in the home. " He argues the trial court failed to consider 

his ability to pay. We affirm the contempt order. 

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 attempts by the wife to have him held in contempt and two 

petitions by the father to modify 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 remained with the mother. The mother asked that 

the father be held in contempt for failure to make the 

monthly house payments a.nd the father moved to modify the 

decree on custody. After a hearing 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 finding him in contempt or from 

the order compelling him to continue making the monthly house 

payments. 

Sixteen months later (in April 1982), the father again 

stopped making the monthly house payments. Ten months 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 for March 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 that he 

had recently bought some property and that the payments on 

the property ($194.78 per month) prevented him from making 

the house payment ($190 per month). The trial court did not 

accept his explanation, finding that the father had 
voluntarily 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 to make the house payments. 

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 first modification 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's duty 

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 

contempt order. 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 obligations and that he could not use those obligations 

by which to relieve himself of the duty of making the monthly 

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 house payments comes first. 

Because the District Court clearly had jurisdiction to 

hold Jay E. Voorhies in willful contempt, the application for 

a writ of certiorari is denied, and these proceedings are 

dismissed. 

DATED this /wday of August, 1983. 
LC. s 

We Concur: 

~,4 4% @+, 

Chief Justfce 

,.' Justices