30. 32-333 INTHE SUPREME COURT OF THE STATE OF MONTANA 1982

PHILIP J. MILANOVICH, Plain-tiff,
-vsROSEMARY J. MILANOVICI3, Defendant.

ORIGINAL PROCEEDING:

Counsel of Record: For Plaintiff: Hull & Sherlock; Jeffrey M. Sherlock, Helena, Xontana
For Defendant: Deirdre Caughlan, Butte,Nontana

.- - - Submitted: October 13, 19132 Decided: December 2, 1982

Filed:Mr. Justice John C. Sheehy delivered the Opinion of the Court. Philip J. Milanovich (husband)filed a petition for writ of review to vacate a contempt order issued by the District Court of the Second Judicial District, Silver Bow County. Originally, husband attempted to appeal the contempt order in Milanovich v. Milanovich (1982), -P4ont. 1 - P.2d -

### , 39 St.Rep. 1554. His attemptwas rejected, because
no appeal canbe taken from an order in contempt. Contempt orders can, however, be considered hy this Court on awrit of review. Section 3-1-523,MCA. Sufficient facts to decide this case were set forth in the earlier Milanovich case cited above, and need not be restated here. The District Court found that husband was guilty of contempt of court for refusing to allow wife her court ordered visitation for Christmas of 1979 and the summer of 1981. Husband was fined $500 and sentenced to five days in jail. The jail sentencewas suspended as l~ng as husband satisfactorily complied with the court's orders. Husband contends the District Court erred in holding him in contempt of court for several reasons. First, husband states that itwas error to hold him in contempt of court for denial of visitation for Christmas of 1979 becausewife did notmention husband's refusal to allow Christmas visitation in the affidavit shepresented to the court. We must agree with the husband. As stated in section 3-1-512,MCA, "Whenthe contempt is not committed in the immediateview and presence of the court or judge at chambers, an affidavit of the facts constituting the contempt

# . . . shallbe presented to the court or judge." Since wife failed to include in her affidavit
-2-facts constituting contempt in regard to visitation for Christmas of 1979, the court had no jurisdiction to address that incident. In addition,husband states that any action to hold him in contempt for denial of visitation forChristmas of 1979 is barred by the statute of limitations. Again,we must agree. A person found guilty of contempt commits a misdemeanor,
as exemplified by section 3-1-519,MCA, which imposes up to a $500 fine and/or a fiveday jail sentence upon a person found guilty of contempt. Section 45-1-205(2)(b) provides, "Aprosecution for amisdemeanormust be commencedwithin 1 year after it is ccmmitted." Therefore,prosecution for denial of visitation for Christmas of 1979 shculd have been commenced within one year. Since wife did notmake her motion asking the District Court to find husband in contempt until August 18, 1981, the DistrictCourt is clearly without jurisdiction to hold husband in contempt for denial of visitation for Christmas of 1979. Husband also contends that the District Court erred in holding him in contempt for denial of visitation for the
summer of 1981. We disagree. Our review of the contempt order is limited to examining the record to seewhether the District Court acted within its jurisdiction and whether the evidence supports the finding of contempt. Schneiderv. Ostwald (1980), -Mont. 

### , 617 P.2d 1293, 37 St.Rep. 1728; In the Matter of the Contempt of Gravely and Hammerbacker (19801, Mont. 

### , 614 P.2d 1033, 37 St.Rep. 1261. After a review of the record,we find that there is substantial evidence to support the District Court's finding of contempt. In the District Court's order of October 

### 4, 1979,wifewas given the right to visitation for themonthof July each sununer. By an agreement entered in February of 1981, the partiesmodified visitation for the summer of 1381 so that wife waived her July 1981 visitation in return for being able to accompanyhusband and the children on a two week summer vacation to Canada. The vacation was to begin
on July 1, 1981. At the contempt hearing,wife testified that husband notified her oneweek before the intended summer vacation thathe had changed theplans for the vacation. Husband then left on vacation early and failed to leave an addresswherewife couldmeet husband and the children. By
so doing,husband violated the February 1981 agreement and the DistrictCourt's order grantingwife visitation for the month of July. By disobeying a lawful order of the District Court, husband committed an act of contempt, and could rightly be punished therefor. Sections 3-1-501(1)(e)and 3-1-519,MCA. Husband's testimony regarding summer vistitation differs. He claimswifewas informed of the change in plans and the
new itinerary several months in advance. He further testified that wife called him oneweek prior to their departure and stated that the vacation plans were unacceptable. She thereforewanted to change her time for visitation to August. Where conflicting evidence exists, if there is competent and substantial evidence to support the findings, the reviewing court will not reversemerely because itmight have drawn from the evidence a conclusion at variance with that reached by the trial judge. 17C.J.S. Contempt § 124(4). The credibility of the witnesses heard by a district court in a contempt proceeding and the weight to be given to their testimony arematters for the District Court's determination, and are not reviewable by the Supreme Court. State ex rel. Zoselv. DistrictCourt

(1919),56 Mont. 578, 185 P. 1112.Although the District Court erred by finding husband in contempt for denial of visitation for Christmas of 1979,we hold this to be harmless error. The District Court found that husband was guilty of contempt for violating the court's order of October 

### 4, 1979. Husband's denial of visitation for the summer of 1981 is in itself 

### a violation of that order, and exhibits sufficient cause for the District Court to hold him in contempt of court. The record in this case reflects a certain degree of recalcitranceby the husband toward the orders of the District Court on visitation. In such case, the best remedy to insure respect for the law and the orderly progress of relations between familymembers splitby dissolution is to give effect to the contempt powers of the DistrictCourt. We follow that course here. Affirmed.

We Concur:

Chief Justice \