No. 84-33 

IN THE SUPREP4.E COURT OF THE STATE OF MONTANA 

1984 

IN RE THE MARRIAGE OF 

VIOLET AGNUS SMITH, 

Petitioner and Appellant, 

and 

VERNON IRVIN SMITH, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Tenth Judicial District, 

In and for the County of Fergus, 

The Honorable Peter Rapkoch, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Law Office of John Christensen; Mark Stermitz, 

Stanford, Montana 

For Respondent: 

Torger S. Oaas, Lewistown, Montana 

Submitted on Briefs: May 10, 1984 

Decided: August 30, 1984 

<A* *- fq I C$LALmA, 1 

Clerk 
Mr. 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 to pay her the sum of $3,200.00. 

Violet filed a complaint for dissolution of the marriage 

on April 15, 1981, in the District Court. A decree of 

dissolution was entered on September 9, 1982 which included 

orders for distribution of a substantial marital estate. The 

District Court includ.ed in its findings of fact a marital 

debt owed to the First National Bank of Lewistown in the sum 

of $3,200.00 and in its conclusions provided that Vernon 

should be responsible for the payment of the "marital debts." 

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 First National Bank of Lewistown, with accrued 

interest of $1,327.11. Violet's motion stated that the 

$3,200.00 debt had been paid by her. 

On June 17, 1983, the District Court entered findings of 

fact and conclusions of law with respect to the motion. 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. He was further obligated 

to pay the cost of baling straw which 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's 
obligations as marital debts and denied Violet's petition to 

hold Vernon in contempt of court. 

On September 7, 1983, Violet again moved the District 

Court to find Vernon in contempt of court for failure to pay 

the $3,200.00 debt to Violet. An order to show cause was 

issued, a.nd after 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, on August 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 to pay the debt 

to the Lewistown bank. The mother, Violet, had contributed a 

small amount to the payment 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 

subject by 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 its 
jurisdiction a-nd whether the evidence supports the 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 the bank in order 

to clear up the marital debts which the District Court had 

ordered him to pay in the original decree. The ba.nk was 

unable to produce the note which was referred to in the 

decree, it now appears obvious for the reason that Joan Smith 

had already paid the indebtedness on the note. 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.ebts which had been amassed 

during the marriage, and that the $3,200.00 was mistakenly 

listed as a marital debt 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 same was taken 

without substantial or reasonable grounds, but 

apparently for purposes of delay only, such damages 

may be assessed on determination thereof as under 

the circumstances are deemed proper." 
It does appear that in this cause the appeal was ta.ken 

without substantial reasonable grounds. The facts were well 

known to Violet that the note had been paid by Joan prior to 

the decree of dissolution and that the 1ia.bility no longer 

existed as a marital debt. Nonetheless she has continuously 

endeavored to collect from Vernon the $3,200.00, which Violet 

was not obliged to pay a-lthough she 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 its purposes to delay the proceedings either in 

District Court or on appeal. For that reason under 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 of Appellate Civil Procedure. 

The order of the District Court is affirmed. 

We Concur: