No. 14799 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

IN RE THE MARRIAGE OF 

THERESA C. O'NEILL, 

Petitioner and Respondent, 

-vsPAT A. O'NEILL, 

Respondent and Appellant. 

Appeal from: District Court of the Nineteenth Judicial District, 

Honorable Robert M. Holter, Judge presiding. 

Counsel of Record: 

For Appellant: 

Donald L. Shaffer, Libby, Montana 

For Respondent: 

Fennessy, Crocker, Harman and Bostock, Libby, Montana 

Filed: NOV "t t-- - .!! 

Submitted on briefs: October 4, 1979 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the 

Court. 

A father appeals from a judgment of the Lincoln County 

District Court holding him in contempt of court for failure to 

pay child support. 

Pat and Theresa O'Neill were granted a dissolution of 

marriage on January 14, 1977. On January 6, 1977, the parties 

had entered into a child custody and property settlement agreement whereby the mother was granted custody of the minor children 

and the father was required to pay $100 per month per child as support which was incorporated in the decree. 

Pursuant to a show cause hearing held on November 16, 1978, 

the husband was found in contempt of court for failure to pay child 

support. He was sentenced to five days in Lincoln County Jail and 

was required to pay the accrued child support. The five day sentence, according to the District Court's order, was suspended if 

the husband paid the accrued child support, continued making such 

payments in the future, and maintained major medical and dental 

insurance for the benefit of the minor children. The father appeals 

from this judgment and order. 

Neither party addresses the controlling issue in this appeal, 

viz. Is a contempt order appealable? 

Section 3-1-523, MCA, states in pertinent part: 

"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 . . ." 

The statutes governing contempt of court are found at 

sections 3-1-501, et seq., MCA. These statutes provide for two 

kinds of procedure depending upon whether the contempt was committed 

in the presence of the court or not. Sections 3-1-511 and 512, MCA. 

It must be noted, however, that these two sections make the distinction between the two types of contempt merely on procedural 
grounds. Section 3-1-523 makes no distinction between the two 

types of contempt. 

In State ex rel. Rankin v. District Court (1920), 58 

a36 

Mont. m, 191 P. 772, a case which involved contempt committed 

in the presence of the court, this Court said " . . . the convicted contemnor, if he chooses, may submit it [the record] to the 

appellate tribunal for review by appeal from the final judgment, 

or by other appropriate method. In this state he may do this 

only by invoking the writ of certiorari . , ." 58 Mont. at 289. 

Subsequently, this Court cited the above language from Rankin 

with approval in Ex parte Burns (1928), 83 Mont, 200, 208, 271 

P. 439. Burns involved a contempt citation which was issued when 

the relator would not relinquish custody of a minor daughter pursuant to a valid court order. 

In Hanson v. Hanson (1928), 83 Mont. 428, 272 P. 543, the 

District Court held a hearing concerning the plaintiff's alleged 

contempt in failing to comply with the terms of a decree of divorce. 

The District Court dismissed the contempt proceeding and the defendant appealed, In a per curiam opinion this Court merely cited 

the relevant statute (now section 3-1-523, MCA) and said, "nothing 

remains for us to do but to dismiss the attempted appeal, and it 

is so ordered." 83 Mont. at 429. 

In the Rankin case, supra, this Court said: 

"The power to inflict punishment in either 

[indirect or direct contempt] is inherent in the 

courts . . , The power is designated as 'inherent' 

because it is necessary to preserve the dignity 

of the judicial department of the government, 

and . . . must be exercised to its fullest extent . . . to enforce . . . rights after they have 

been determined." 58 Mont. at 288 

This inherent power must be exercised by the courts with 

the knowledge that it will not be upset on appeal. This is necessary to preserve the dignity and authority of the court. 

Appeal dismissed. 
Chief Justice 

We concur: , 

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