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No. 98-691 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2000 MT 128 

300 Mont. 1

2 P.3d 822

IN RE THE MARRIAGE OF 

CATHARINE GAY GROUNDS f/k/a

CATHARINE GAY COWARD,

Petitioner/Appellant, 

v.

HAROLD MARK COWARD, 

Respondent/Respondent.

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula,

The Honorable John W. Larson, Judge presiding.

COUNSEL OF RECORD:

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For Appellant:

Karen S. Renne, Denver, Colorado

For Respondent:

Rachel Wright, Missoula, Montana

Submitted on Briefs: December 2, 1999 

Decided: May 9, 2000

Filed:

__________________________________________

Clerk

Justice William E. Hunt, Sr. delivered the Opinion of the Court.

¶1 Catharine Gay Grounds, f/k/a Catharine Gay Coward (Catharine), appeals from the 

September 29, 1998 Order of the Montana Fourth Judicial District Court, Missoula 

County, refusing to lift a stay on a contempt and commitment order it had issued in 1996 

against Harold Mark Coward (Mark) for failing to pay required maintenance under the 

parties' 1991 dissolution decree. Although Catharine raises several issues pertaining to the 

District Court's contempt power, we conclude that under the authority of our recent 

decision in Lee v. Lee, 2000 MT 67, 996 P.2d 389, 57 St.Rep. 308, we are without 

jurisdiction to address the questions presented. Thus, we dismiss this appeal. 

¶2 A party is permitted to appeal from a civil judgment or order "except when expressly 

made final by law." Rule 1(b), M.R.App.P. In turn, § 3-1-523, MCA, provides:

The judgment and orders of the court or judge made in cases of contempt are final 

and conclusive. There is no appeal, but the action of a district court or judge can be 

reviewed on a writ of certiorari by the supreme court or a judge thereof . . . .

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Section 3-1-523, MCA; see also State ex rel. Anderson v. District Court (1980), 188 

Mont. 77, 79, 610 P.2d 1183, 1185 (holding that a writ of supervisory control may be 

granted in contempt cases where the party is barred from using a writ of certiorari). 

¶3 Notwithstanding the foregoing statutory mandate, this Court has for years recognized a 

judicially created "exception" permitting direct appellate review of contempt orders in the 

family law context, including marital dissolution proceedings. See In re Marriage of 

Sessions (1988), 231 Mont. 437, 441, 753 P.2d 1306, 1308 (citing In re Marriage of Smith 

(1984), 212 Mont. 223, 225-26, 686 P.2d 912, 914) (acknowledging the "family law 

exception" to the writ of certiorari mandate in the context of dissolution of marriage 

proceedings). Nevertheless, we have also recognized in the family law context, as a matter 

of public policy, that "the best remedy to insure respect for the law and the orderly 

progress of relations between family members split by dissolution is to give effect to the 

contempt powers of the District Court." Milanovich v. Milanovich (1982), 201 Mont. 332, 

336, 655 P.2d 963, 965.

¶4 Because discretionary review of a petition for certiorari or supervisory control is "far 

more efficient and effective in upholding the 'family law' policy set forth in Milanovich," 

we sought in Lee to better define the family law direct appeal exception so that it could be 

"properly narrowed" in light of the underlying public policy. Lee, ¶ 34. In Lee, we began 

by noting that there are two distinct circumstances under which a court's contempt power 

may be challenged: first, where the court acts without jurisdiction; and second, where the 

court acts within its jurisdiction but in an arbitrary and tyrannical manner. See Lee, ¶ 35. 

Since a writ of certiorari cannot be used to correct errors within a lower court's 

jurisdiction, we explained that where a court finds one party in contempt but also acts 

within its jurisdiction in adjudicating ancillary matters between the parties vis-à-vis the 

contemptuous conduct (e.g., marital property division, maintenance, child custody, 

visitation, etc.), the judgment must stand and may not be attacked by writ of certiorari. 

Lee, ¶ 36. A writ of certiorari would be barred, under such circumstances, because the 

lower court did not exceed its jurisdiction in issuing the ancillary order. See Lee, ¶ 36.

¶5 To illustrate, the contempt order at issue in Lee was reviewable on direct appeal under 

the "family law exception" because of the nature of the judgment in that case. See Lee, ¶¶ 

15-16 (discussing the judgment in some detail). In Lee, although one party was obligated 

pursuant to the underlying dissolution decree to transfer a horse and horse trailer to the 

other party as part of the distribution of the marital estate, the obligated party had sold 

those assets prior to final judgment while continuing to represent that she possessed them. 

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Following appeal, the other party attempted to execute on the judgment and it was 

discovered that the obligated party had already disposed of the assets. The district court 

held the obligated party in direct contempt for her " 'deceitful omission' " concerning the 

marital assets and her refusal to comply with the terms of the precedent dissolution decree. 

Lee, ¶¶ 3, 15. Then, in the very same judgment, the district court calculated the money 

judgment due under the dissolution decree, factoring in the cash value of the horse and 

trailer and providing the other party with offsetting deductions to his maintenance 

obligations under the decree. Lee, ¶¶ 3, 16. 

¶6 Thus, where a court in a single judgment, issues an order of contempt against one party 

and an ancillary order within its jurisdiction in determining the rights of the parties as a 

result of the contemptuous conduct, a petition for writ of certiorari would necessarily be 

denied. Lee, ¶ 37. Only this limited scenario triggers application of the family law 

exception to the writ of certiorari mandate contained in § 3-1-523, MCA. We held in Lee, 

therefore, that "the 'family law' direct appeal exception . . . applies when, and only when, 

the judgment appealed from includes an ancillary order which effects [sic] the substantial 

rights of the involved parties." Lee, ¶ 37. Conversely, "a lone contempt order, regardless 

of the underlying law of the case, cannot be reviewed by this Court on direct appeal." Lee, 

¶ 37.

¶7 Thus, the "threshold question" in this case becomes whether § 3-1-523, MCA, bars a 

direct appeal by Catharine. In re Marriage of Harper (1988), 235 Mont. 41, 44, 764 P.2d 

1283, 1285. We conclude that it does. As stated in Catharine's appellate brief, she is 

appealing from the District Court's denial of her request to vacate its stay of a prior 

contempt and commitment order issued against Mark in 1996. While Catharine is not 

appealing from the court's initial finding of contempt, we determine that this direct appeal 

falls outside of the family law exception as narrowed in Lee. 

¶8 Here, Catharine is appealing from the District Court's refusal to enforce its contempt 

power against Mark by lifting its stay on commitment and imprisoning him. As we have 

suggested in the past, however, a court's contempt power "must be exercised to its fullest 

extent to enable the court to discharge its high duty of administering justice between 

parties whose rights are put in issue before it, or to enforce these rights after they have 

been determined." State ex rel. Rankin v. District Court (1920), 58 Mont. 276, 288, 191 P. 

772, 774 (emphasis added). Without going into the merits, it is clear that the District Court 

has been discretionarily exercising its contempt power to properly enforce the parties' 

rights as determined in the 1991 dissolution decree.

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¶9 The order appealed from goes purely to the District Court's contempt power; the court 

did not adjudicate any ancillary matters falling within its continuing jurisdiction over the 

rights of the parties as determined under the 1991 dissolution decree. Catharine appeals 

from "a lone contempt order" and, therefore, her challenge "cannot be reviewed by this 

Court on direct appeal." Lee, ¶ 37. Under the facts of this case, Catherine is precluded 

from challenging the District Court's enforcement of its contempt power on direct appeal. 

Rule 1(b), M.R.App.P.; § 3-1-523, MCA; Lee, ¶¶ 36-37. 

¶10 As a result, this Court is without jurisdiction to reach the merits of Catherine's 

challenge on direct appeal. It is well settled that jurisdictional defects may be raised at any 

time by either party, as well as by the court sua sponte. See Thompson v. Crow Tribe of 

Indians, 1998 MT 161, ¶ 12, 289 Mont. 358, ¶ 12, 962 P.2d 577, ¶ 12. We decline, sua 

sponte, to entertain Catherine's direct appeal. 

¶11 This appeal is dismissed without prejudice. 

/S/ WILLIAM E. HUNT, SR.

We Concur:

/S/ KARLA M. GRAY

/S/ TERRY N. TRIEWEILER 

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART

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