30. 32-333 

IN THE 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 attempt was rejected, because 

no appeal can be taken from an order in contempt. Contempt 

orders can, however, be considered hy this Court on a writ 

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 sentence was 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 it was error to hold him in contempt of court 

for denial of visitation for Christmas of 1979 because wife 

did not mention husband's refusal to allow Christmas visitation 

in the affidavit she presented to the court. We must agree 

with the husband. As stated in section 3-1-512, MCA, "When the 

contempt is not committed in the immediate view and presence 

of the court or judge at chambers, an affidavit of the facts 

constituting the contempt . . . shall be 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 for Christmas 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 five day jail sentence upon a person 

found guilty of contempt. Section 45-1-205(2)(b) provides, 

"A prosecution for a misdemeanor must be commenced within 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 not make her 

motion asking the District Court to find husband in contempt 

until August 18, 1981, the District Court 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 see whether the 

District Court acted within its jurisdiction and whether the 

evidence supports the finding of contempt. Schneider v. 

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, wife was given the right to visitation for the month 
of July each sununer. By an agreement entered in February of 

1981, the parties modified visitation for the summer of 1381 

so that wife waived her July 1981 visitation in return for 

being able to accompany husband 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 one week before the intended 

summer vacation that he had changed the plans for the vacation. 

Husband then left on vacation early and failed to leave an 

address where wife could meet husband and the children. By 

so doing, husband violated the February 1981 agreement and 

the District Court's order granting wife 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 claims wife was informed of the change in plans and the 

new itinerary several months in advance. He further testified 

that wife called him one week prior to their departure and 

stated that the vacation plans were unacceptable. She 

therefore wanted 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 reverse merely because it might have drawn 

from the evidence a conclusion at variance with that reached 

by the trial judge. 17 C.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 are matters 

for the District Court's determination, and are not reviewable 

by the Supreme Court. State ex rel. Zosel v. District Court 

(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 

recalcitrance by 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 family members split by dissolution is to 

give effect to the contempt powers of the District Court. 

We follow that course here. 

Affirmed. 

We Concur: 

Chief Justice \