No. 14380 

IN THE SUPREME COURT OF THE STATE OF ~~ 

1978 

STATE OF M3NTANA, ex re1 JOY V. KAASA, 

Relator, 

DISTRIcr COURT OF THE S- JUDICIAL 

DISTRICT, IN AND FOR THE COUNTY OF PHILLIPS, 

AND THE HON. LEONARD H. LANGEN, PRESIDING JUDGE, 

ORIGINAL PFamEDING: 

Cousnel of Record: 

For Relator: 

Burns, Sola and MacKenzie, Chinook, Mntana 

Suhnitted: June 29, 1978 

Decided: J u L 2 1978 

Filed: j lj L 2 i;. 1978 
Mr. Justice John C. Sheehy delivered the opinion 

of the Court. 

 his is an Application for Writ of Supervisory Control 

or Other appropriate writ. 

Relator, Joy V. Kaasa, is the petitioner for dissolution of marriage in civil cause no. 6228 in the District 

Court of the Seventeenth Judicial District, Phillips County. 

Her petition, with a request for division of the marital 

property, was heard November 5, 1976. After hearing, the 

District Court issued its Findings of Fact, 'Conclusions of 

Law and Judgment on February 28, 1978. Notice of appeal to 

this Court was filed by the husband, Osborne A. Kaasa, on 

March 30, 1978. 

A copy of the Judgment appears in the record. By it, 

the marriage was dissolved and custody of a minor child was 

awarded to the mother for part of each year and to the husband 

for the remainder of each year; with the husband to pay the 

wife $75.00 for each month the child resides with her. With 

respect to the marital property, among other things, she is 

to receive $99,138.00 in value payable to her by delivering 

certain property to her at a decreed value and a balance of 

$67,656.00 to be paid to her over a period of 25 years computed 

on an amortized basis of 6% per annun, payments to be made 

annually beginning a year from the decree. She was also 

awarded attorney fees of $1,000.00. There are other provisions 

in the decree not important here. 

After the notice of appeal was filed, the relator wife 

filed a motion in the District Court requesting an Order to 

Show Cause addressed to the husband concerning temporary 

maintenance, custody and attorney fees. A hearing was held on 
April 20, 1978 and thereafter the Court indicated the findings 

it would enter in the cause, to be effective pending final 

determination on appeal. However, the District Court also 

indicated that it would not enter conclusions of law, or 

make a temporary order pending appeal, because of the District 

Court's interpretation that the filing of a notice of appeal 

had taken away its jurisdiction to enter such an order 

pending appeal. The provisions of the temporary findings 

which the District Court would enter on the hearing to show 

cause if it had jurisdiction would be in substantial variance 

from the provisions of the decree which is the subject of 

the husband's appeal. 

The District Court recommended that the wife file an 

application in this Court for an order which would grant the 

relief found by the District Court, or else authorize the 

District Court to enter such a temporary order. Hence, the 

wife, as relator, comes before us for a writ of supervisory 

control or other appropriate writ, requesting the temporary 

relief suggested by the District Court, either by our order, 

or by authorizing the District Court so to order. 

A decree of dissolution of marriage is final when 

entered, subject to the right of appeal. Section 48-328, 

R.C.M. 1947. The District Court has power to modify or 

terminate a decree for maintenance of support only under 

section 48-330, R.C.M. 1947. The District Court loses authority 

to modify its judgment or decree upon a notice of appeal 

being duly filed. Benolken v. Miracle, (1954) 128 Mont. 

262, 266, 273 P.2d 667. Then all further proceedings in the 

District Court are stayed upon the judgment appealed from, 

or " * * * upon the matters embraced therein. * * *" Section 

93-8011, R.C.M. 1947. 
The District Court is not completely powerless, however. 

It has the power to enforce the judgment already entered by 

contempt proceedings, where no stay of judgment has been 

ordered. Kramer v. Kramer , (1978 ) , Mont . , 578 

p.2d 317, 35 St.Rep. 635; Myhre v. Myhre, (1976) 170 Mont. 

410, 548 P.2d 1395, 33 St.Rep. 598. It further has the 

statutory power, under section 48-327, R.C.M. 1947, to require 

the husband to pay reasonable sums to the wife for attorney 

fees and costs in maintaining or defending a proceeding, even 

"after entry of judgment." In the final analysis, it also 

has the power to order temporary support pending appeal for 

the wife and minor children. 

This Court noted in Bordeaux v. Bordeaux, (1904) 29 

Mont. 478, 482, 75 P. 359 that: 

"We are of the opinion that under the 

above-quoted provisions of the statute the 

district court had jurisdiction and power, 

notwithstanding the judgment, at any time 

prior to the determination of the action 

on appeal from the judgment, or prior to 

the expiration of the time of appeal, to 

require the husband to pay any money necessary 

to enable the wife to support herself and to 

further prosecute or defend the action. 

(Citing cases)." 

The Court reached that conclusion in Bordeaux after 

analysis of statutes then in effect. Section 21-137, R.C.M. 

1947 (then Section 191, Civil Code) provided for expenses 

of action and alimony pending the action. Section 91-8076, 

R.C.M. 1947, still in effect, says that an action is deemed 

to be pending "from the time of its commencement until its 

final determination upon appeal, or until the time for appeal 

has passed, unless the judgment be sooner satisfied." Therefore, 

regardless of the appeal taken by the husband Osborne A. Kaasa, 

the action for marital dissolution is still pending in the 

District Court. The Court concluded in Bordeaux that the 
matter of temporary support and suit money, pending appeal, 

was not a matter "embraced" within the judgment, under 

section 93-8011, R.C.M. 1947, and therefore the District Court 

could award such temporary items even though an appeal is 

pending. 

Further, in an earlier action between the same parties 

(Bordeaux v. Bordeaux, (1902) 26 Mont. 533, 69 P. 103) this 

Court decided that the Supreme Court had no power to grant 

temporary alimony or suit money, nor was such power necessary 

to the complete exercise of its appellate jurisdiction. We 

agree with what Mr. Justice Pigott wrote in that case about 

the effect of an appeal upon an action and its pendency in the 

District Court: 

"* * * The action-the entire case-is not 

transferred by appeal. Questions of law only 

are presented on appeal, even where the relief 

sought is equitable in character. The action 

itself is still pending in the lower court. 

On an appeal only questions of law are tried; 

* * *Except insofar as affected by the appeal, 

the cause remains in the district court, the 

primary forum. * * *" 26 Mont. at p. 536. 

The District Court, by statute, may after judgment 

"proceed upon any other matter embraced in the action, and 

not affected by the order appealed from." Section 93-8011, 

R.C.M. 1947. 

The Uniform Marriage and Divorce Act now in effect in 

Montana gives the District Court authority to provide temporary 

orders for support and maintenance to a spouse. Section 48-318, 

R.C.M. 1947. Nothing in that statute restricts the power of the 

District Court to orders made before judgment. In fact, it 

is specifically provided that the granting of such an order 

does not prejudice the rights of the parties at "subsequent 

hearings in the proceeding," which would include an appeal. 

Section 48-318 (6) (a) , R.C.M. 1947. 
We hold therefore that a District Court has power to 

award necessary maintenance, child support and suit monies 

after judgment in a marital dissolution case, where an appeal 

is taken from the judgment, during the pendency of the appeal. 

To hold otherwise would leave a hiatus in the remedial power 

of the District Court that could cause unmeasured hardship and 

distress. Our holding is consonant with the purposes of the 

Uniform Marriage and Divorce Act, to "mitigate the potential 

harm to the spouses and their children caused by the process 

of legal dissolution of marriage." Section 48-302(4), R.C.M. 

1947 (Emphasis supplied) . 

Since the wife has an adequate remedy in the District 

Court, her application for a writ is denied. Because we have 

not ordered an adversary hearing on her application, we have 

not had the benefit of briefs on this matter from the husband. 

Should he desire to contest what we have said here, he may 

appeal directly from any temporary order granted during appeal, 

or we will entertain the issue if raised in his briefs on his 

appeal from the dissolution 

WE CONCUR: 

decree. 

x&~, $4fh& 

Chief Justice 

7 

/I Justice 

Justices