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: 

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### .!! Submitted on briefs: October 4, 1979Mr. 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 $100per month per child as support which was incorporated in the decree. Pursuant to a show cause hearing held onNovember 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 DistrictCourt'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 theminor 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 pertinentpart: "The judgment and orders of the court or judge made in cases of contempt are final and conclusive. There isno appeal, but the action of a district court or judge can be reviewed on a writ of certiorariby the supreme court or a judge thereof

# . .." The statutes governing contempt of court are found at sections 3-1-501, et seq., MCA. These statutesprovide 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. Itmust be noted, however, that these two sectionsmake the distinction between the two types of contempt merely on proceduralgrounds. Section 3-1-523makes no distinctionbetween the two types of contempt. In State ex rel. Rankin v. District Court (1920), 58 

## a36 Mont. 

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### P. 772,a case which involved contempt committed in the presence of the court, this Court said 

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# . .. the convicted contemnor, if he chooses,may submit it [the record] to the appellate tribunal for reviewby appeal from the final judgment,

or by other appropriatemethod. In this statehe may do this only by invoking the writ of certiorari

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# ." 58 Mont. at 289. Subsequently, this Court cited the above language from Rankin with approval in Ex parte Burns (1928), 83Mont, 200, 208, 271 P. 439. Burns involved a contempt citation which was issued when the relatorwould not relinquishcustody of aminor 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 contemptproceeding and the defendant appealed, In a per curiam opinion this Courtmerely cited the relevant statute (nowsection 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: "Thepower to inflict punishment in either [indirector direct contempt] is inherent in the courts

# . . ,Thepower isdesignated as 'inherent' because it is necessary to preserve the dignity of the judicial department of the government, and 

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# . .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 isnecessary to preserve the dignity and authority of the court. Appeal dismissed.Chief Justice

We concur: , 

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