No. 84-33 IN THE SUPREP4.E COURTOF THE STATE OF MONTANA 1984

IN RE THEMARRIAGE OF VIOLET AGNUS SMITH, Petitioner andAppellant, and VERNON IRVIN SMITH, Respondent and Respondent.

APPEAL FROM: District Court of the Tenth JudicialDistrict, In and for the County of Fergus, The Honorable Peter Rapkoch,Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: LawOffice of JohnChristensen;Mark Stermitz, Stanford, Montana

For Respondent: Torger S. Oaas, Lewistown,Montana

Submitted onBriefs: May 10, 1984 Decided: August 30, 1984

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# C$LALmA, 1 ClerkMr. Justice John C. Sheehy delivered the Opinion of the Court. Violet Agnus Smith appeals from an order of the District Court, Tenth Judicial District, Fergus County, denying her petition to hold her former husband, Vernon Irvin Smith, in contempt for failure topay her the sumof $3,200.00. Violet filed a complaint fordissolution of the marriage

on April 15, 1981, in the District Court. A decree of dissolution was entered on September 9, 1982 which included orders fordistributionof a substantial marital estate. The District Court includ.ed in its findings of fact a marital debt owed to the FirstNational Bank of Lewistown in the sum of $3,200.00 and in its conclusions provided that Vernon should be responsible for thepayment of the "maritaldebts." Neither party appealed from the final decree of dissolution. On February 5, 1983, Violet filed a motion in the District Court that Vernon be held in contempt of court unless he make payment of claimed marital debts amounting to $24,693.25. Included in the debts was a $3,200.00 note payable to the FirstNational Bank of Lewistown,with accrued interest of $1,327.11. Violet's motion stated that the $3,200.00 debthad been paid by her. On June 17, 1983,the District Court entered findings of fact and conclusions of law with respect to themotion. It determined that the $3,200.00 note was a marital debt that had not been paid by Vernon although he was obligated to do so,together with accrued interest. Hewas furtherobligated to pay the cost of baling strawwhich was left on the ranch premises on the basis of quantum meruit. The court found that the other debts claimed by the wife were not Vernon'sobligations as marital debts and denied Violet's petition to hold Vernon in contemptof court. On September 7, 1983, Violet again moved the District Court to findVernon in contempt of court for failure to pay the $3,200.00 debt to Violet. An order to show cause was issued, a.ndafter hearing, the District Court again denied Violet's petition to hold Vernon in contempt. The District Court in its findings found that the note had been paid by their adult daughter, Joan Smith,onAugust 16, 1982. It is from the denial order of September 7, 1983 that Violet appeals. The facts regarding the $3,200.00 debt to the First National Bank appear to be that the debt was incurred by their daughter,Joan Smith, in connection with a purchase of a mobile home by Joan. The mother, Violet, co-signed the note to the bank with Joan. Subsequently Joan sold the mobile home and used the proceeds of the sale topay thedebt to the Lewistownbank. The mother, Violet,had contributed a small amount to thepayment of the note, and for this amount Vernon had reimbursed Violet. The date of the payment was August 16, 1982 which preceded the original decree of dissolution in this cause. Ordinarily, the decision of a District Court with respect to contempt proceedings is not reviewable by the Court on appeal, but must be reviewed through certiorari. Matter of Gordon's Estate (Mont. 1981), 628 P.2d 1117, 38 St.Rep. 887. We permit an exception to this rule,however, in dissolution of marriage proceedings and we consider the subjectby way of appeal. The rule of review is the same in either case,however;we are limited to examining the record to see whether the District Court acted within itsjurisdiction a-ndwhether the evidence supportsthe finding of the court with respect to the purported contempt. Schneider

v. Ostwald (Mont. 1980), 617 P.2d 1293, 37 St.Rep. 1728. The evidence in this case shows that after the original decree of dissolution, the husband went to thebank in order to clear up the marital debts which the District Court had ordered him to pay in the original decree. The ba.nkwas unable to produce the note which was referred to in the decree, itnow appears obvious for the reason thatJoan Smith had alreadypaid the indebtednesson thenote. Now Violet is contending, although the note was paid, that Vernon must nevertheless pay the amount of the indebtedness to her, the effect of which would be to increase the amount of property that was distributed to her under the decree of dissolution. It is clear,however, that the decree of dissolution intended that Vernon pay the marital d.ebtswhich had been amassed during the marriage, and that the $3,200.00 was mistakenly listed as amaritaldebt in the decree of dissolution. We find no error in the court's refusal to hold Vernon in contempt in this case. On appeal, counsel for Vernon contends that Violet's appeal from the refusal of the order to find Vernon in contempt is frivolous and has caused Vernon great expense in defending two orders to show cause in the District Court and the appeal here. We are controlled in this respect by Rule 32 of the Montana Rules of Appellate Civil Procedure which provides: "Damaqes 

### - for appeal without merit. If the Supreme Court is satisfied from the record and the presentation of the appeal that the samewas taken without substantial or reasonable grounds, but apparently for purposes of delay only, suchdamages may be assessed on determination thereof as under the circumstances are deemedproper."It does appear that in this cause the appeal was ta.ken without substantial reasonable grounds. The factswerewell known toViolet that the note had been paid by Joan prior to the decree of dissolution and that the 1ia.bilityno longer existed as a marital debt. Nonetheless shehas continuously endeavored to collect fromVernon the $3,200.00,which Violet

was not obliged to pay a-lthoughshe had co-signed the note. Our rule allowing damages for a frivolous appeal however has another prong, it must be taken for purposes of delay only. We cannot gather from the record here that Violet's appeal had as one of itspurposes todelay the proceedings either in District Court or on appeal. For that reasonunder our rule we must deny Vernon's petition for attorney's fees and costs for the appeal in this case, except as provided in Rule 33, Montana Rules ofAppellate CivilProcedure. The order of theDistrict Court isaffirmed.

We Concur: