No. 94-476

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

IN RE THE MARRIAGE OF

TERRI ANN BOYER,

Petitioner and Appellant,

and

GARY GREG BOYER,

APPEAL FROM: District Court of the Second Judicial District,

In and for the County of Silver Bow,

The Honorable James E. Purcell, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Leonard J. Haxby, Christine D. Somers, Butte,

Montana

For Respondent:

Respondent did not appear on appeal.

Filed:

Submitted on Briefs: June 29, 1995

Decided: December 19, 1995
Justice William E. Hunt, Sr. delivered the Opinion of the Court.

Appellant Terri Boyer (Terri) appeals an order of the Second

Judicial District Court, Silver Bow County, which granted the

motion of Respondent Gary Boyer (Gary) to modify the parties'

divorce decree, and denied Terri's motion to find Gary in contempt

of court for failing to abide by the dictates of the decree.

Affirmed in part, reversed in part, and remanded.

ISSUES

The following dispositive issues were raised on appeal:

1. Did the District Court err by modifying the custody of the

parties' two younger children?

2 . Did the District Court err by awarding Gary liberal

visitation or by permitting him to act as the children's day-care

provider?

3 . Did the District Court err by refusing to hold Gary in

contempt?

4 . Did the District Court err by refusing to allow interest

to be added to a $1,438.82 debt owed to Terri by Gary?

5 . Did the District Court err by ordering Gary to repay the

$1,438.82 debt at a rate equal to $7.50 per month?

FACTS

Terri and Gary were married in 1978 and divorced in 1992.

They have two minor daughters, Natoshia and Tristan, and one minor

son, Gage. The parties' January, 1992 divorce decree gave sole

custody of all the children to Terri, and gave Gary reasonable

visitation. The decree provided that Gary would set up a $1,000

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trust fund for each child using funds from the estate of his

father. It further provided that Gary was to sell the family home

and use the proceeds to pay off the parties' medical and credit

card debts.

In February, 1992, the parties stipulated to the amendment of

the final decree. By that stipulation, Gary was granted unlimited

visitation. The stipulation also set out the specific medical and

credit card debts which were to be paid by Gary once the house was

sold.

On June 1, 1993, Gary moved the District Court to modify the

divorce decree. By his motion, Gary contended that his older

daughter, Natoshia, resided with him and he consequently requested

a change in the status of her custody. Gary's motion explicitly

limited the requested custody change to Natoshia only, and

requested that Terri retain custody of Tristan and Gage.

On the same day, Terri moved the District Court to hold Gary

in contempt for failing to sell the family home and pay off the

couple's debts, and for failing to set up the children's trust

funds, as ordered by the decree. Gary responded that the decree

did not specify a deadline for either the sale of the house or the

establishment of the trust funds, and that therefore he was not in

contempt.

The District Court held hearings on both motions on June 30

and July 20, 1993. It appointed a Special Master to investigate

and ordered him to submit his findings and conclusions to the

District Court.

3
On April 11, 1994, the District Court issued its Findings of

Fact, Conclusions of Law and Order which adopted the Special

Master's proposed findings and conclusions. It also incorporated

modifications to the Special Master's findings and conclusions

which were requested by Gary through a "Notice of Respondent's

Request to Adopt the Special Master's Findings of Fact, Conclusions

of Law and Order with Modifications."

1n its order, the District Court specifically noted Terri's

failure to object to the Special Master's proposed findings or to

Gary's requested modifications. However, the Special Master's

proposed findings and Gary's "Notice of Respondent's Request" to

modify the same were filed with the District Court on April 15,

1994, four days after the District Court had entered its final

order in the matter.

Terri appeals from the District Court's order. Gary did not

appear in this appeal.

I

Did the District Court err by modifying the custody of the

parties' two younger children?

Terri first contends that the District Court erred by changing

the custody of the two younger children from sole to joint. She

claims that neither party formally moved for such a change and that

the District Court lacked jurisdiction to alter the existing

arrangements.

Section 40-4-219, MCA, provides:

The court may in its discretion modify a prior custody

decree if it finds, upon the basis of facts that have

4
arisen since the prior decree or that were unknown to the

court at the time of entry of the prior decree, that a

change has occurred in the circumstances of the child or

the child's custodian and that the modification is

necessary to the serve the best interest of the child and

if it further finds that:

(a) the custodian agrees to the modification;

(b) the child has been integrated into the family of

the petitioner with consent of the custodian;

(c) the child's present environment endangers

seriously the child's physical, mental, moral, or

emotional health and that the harm likely to be caused by

a change in environment is outweighed by its advantages

to the child;

(d) the child is 14 years of age or older and

desires the modification;

(e) the custodian willfully and consistently:

(i) refuses to allow the child to have any

contact with the noncustodial parent; or

(ii) attempts to frustrate or deny the

noncustodial parent's exercise of visitation rights;

(f) the custodial parent has changed or intends to

change the child's residence to another state.

In order to change an existing custody arrangement, the

District Court must find changed circumstances as well as one or

more of the factors listed in 5 40-4-219(a)-(f), MCA. Such

findings are a jurisdictional prerequisite for a change in custody

and, without them, a district court may not modify a prior award of

sole custody. In re Marriage of Johnson (1994), 266 Mont. 158, 879

P.2d 689; In re Marriage of Anderson (1989), 240 Mont. 316, 783

P.2d l.372; In re Marriage of Stephenson (1988), 230 Mont. 439, 750

P.2d 1073.

Terri apparently agreed to change the custody of Natoshia from

sole to joint, but the record does not reflect that she agreed to

such a change regarding Tristan and Gage. While the order in this

case purports to change the custody of all the children from sole

to joint, the District Court did not make the sort of findings

5
which § 40-4-219, MCA, mandates. Without such findings, the court

had no jurisdiction to modify the existing custody arrangements.

Furthermore, neither party by their pleadings raised the

custody of Tristan and Gage as an issue. On the contrary, in his

motion to change the custody of Natoshia, Gary specifically

requested that Terri retain custody of both Tristan and Gage. A

judgment is conclusive only so far as it determines matters which

by the pleadings are put at issue. In re Marriage of DiPasquale

(1986), 220 Mont. 497, 499, 716 P.2d 223, 225.

Because the issue of the custody of Tristan and Gage was not

properly before the District Court, and because it failed to comply

with the dictates of § 40-4-219, MCA, we hold that the District

Court lacked jurisdiction to change the existing custody

arrangements regarding the two younger children. Under the

original divorce decree and later stipulation, Terri retains sole

custody of Tristan and Gage, and Gary has the right to visitation.

II

Did the District Court err by allowing Gary liberal visitation

or by permitting him to act as the children's day-care provider?

Terri next contends that the District Court erred by granting

Gary liberal visitation and by allowing him to act as the

children's day-care provider when he is not working.

The original divorce decree granted Gary "reasonable" rights

to visitation, and the stipulation granted him an "unlimited" right

to visit the children in their home in order to allow him to visit

them "to the fullest extent possible." While the stipulation

6
contemplated long-distance visitation, as Terri and the children

were then planning a move to California, nothing in it indicates

that the visitation arrangements were to be different should Terri

and the children return to Montana, as in fact they have.

Therefore, by ordering that Gary is to have liberal visitation, the

District Court was not modifying visitation, but merely clarifying

and confirming that Gary is entitled to liberal visitation under

the original terms of the stipulation.

Nevertheless, Terri contends that Gary should not enjoy

liberal visitation with the younger children or be allowed to act

as their day-care provider. She contends that he does not

supervise them properly or feed them nutritiously, and notes that

the two daughters do not get along. At the hearing, she also

alleged sexual improprieties involving Gary and the children, which

he emphatically denied.

The district court has broad power to address all problems

concerning custody and visitation.

The standard of review for custody and visitation is

whether substantial credible evidence supports the

district court's judgment. We will overturn a court's

custody or visitation decision only when the court's

findings and conclusions clearly demonstrate an abuse of

discretion.

In re Marriage of Hunt (1994), 264 Mont. 159, 164, 870 P.2d 720,

723.

Further, this Court may not substitute its judgment for that

of a district court in making a finding based to a large extent on

credibility and weight of the evidence. Woolf v. Evans (1994), 264

Mont. 430, 872 P.2d 777. "[T]he trial court, having had the

7
opportunity to observe the demeanor and judge the credibility of

the witnesses, is in a better position to resolve conflicting

factual testimony than is this Court. In re Marriage of Gerhart

(1990), 245 Mont. 27'9, 800 P.2d 698." In re Marriage of Newton

(1992), 255 Mont. 463, 466, 844 P.2d 47, 49.

All the allegations Terri makes on appeal were properly made

before the District Court, who heard testimony from both parties as

well as several other witnesses. It then determined the

credibility of the parties and witnesses, as well as the weight to

be given to their testimony. The District Court found Gary to be

an appropriate day-care provider for the children, and substantial

credible evidence supports this finding, as well as the finding

that Gary should receive liberal visitation. We will not

substitute our judgment for that of the District Court, which had

the opportunity to evaluate the evidence personally. Accordingly,

the order of the District Court is affirmed regarding these issues.

III

Did the District Court err by refusing to hold Gary in

contempt?

The original divorce decree provided that Gary would set up a

trust fund of $1,000 for each child, using funds from the estate of

his father. When he failed to establish the trust funds, Terri

moved to have him held in contempt. The District Court denied her

motion and declined to hold Gary in contempt. Terri claims this

denial was error.

8
Unlike contempt orders in other types of cases, which are

reviewable only by writ of certiorari, contempt orders in family

law cases may be appealed. In re Marriage of Dreesbach (1994), 265

Mont. 216, 875 P.2d 1018. However, this Court's review is limited

to whether the district court acted within its jurisdiction and

whether the evidence supports its finding. Dreesbach, 675 P.2d at

1023; In re Marriage of Sullivan (1993), 258 Mont. 531, 539-40, 853

P.2d 1194, 1200.

Terri does not assert that the District Court lacked

jurisdiction. Instead, she attacks on evidentiary grounds its

refusal to hold Gary in contempt. The decree specified that the

trust funds would be funded from the estate of Gary's father. Gary

admitted that he had not set up the trust funds as required, but

would do so upon the sale of the family home. He therefore

admitted that he was in violation of the decree, and the District

Court could justifiably have found him to be in contempt. However,

the court instead ordered him to set up the trust funds within 90

days of the date of the order. It is the responsibility of the

District Court to enforce its own orders, and the court has the

discretion to grant extensions if it deems proper. Therefore, the

District Court acted within its authority in denying Terri's

motion. Accordingly, the District Court's refusal to hold Gary in

contempt is affirmed.

I V

Did the District Court err by refusing to allow interest to be

added to a $1,438.82 debt owed to Terri by Gary?

9
The original divorce decree provided that Gary would pay

certain medical and credit card debts once the family home was

sold. The stipulation set out specifically what amounts were owed,

and to whom. Since Gary did not sell the house or pay the debts,

Terri was forced to make partial payments to several parties in

order to preserve her good credit history. Terri paid a total of

$1,438.82 towards debts which were Gary's responsibility pursuant

to the decree. The District Court found that Gary did in fact owe

this amount to Terri, but concluded that she, as a matter of law,

was not entitled to receive interest since she had made the

payments voluntarily.

We find this conclusion to be erroneous. Section 27-1-211,

MCA, provides:

Every person who is entitled to recover damages certain

or capable of being made certain by calculation and the

right to recover which is vested in him upon a particular

day is entitled also to recover interest thereon from

that day except during such time as the debtor is

prevented by law or by the act of the creditor from

paying the debt.

Gary was required to pay certain debts on behalf of Terri, which he

did not pay. Because of his non-payment, Terri risked damaging her

credit rating and her ability to obtain continuing services from

certain doctors. In order to prevent such a result, Terri paid

part of the debts herself. Therefore, Gary now has an obligation

to reimburse her, which he does not dispute.

Gary owes Terri damages in an amount which can be and has been

determined by calculation. She is therefore entitled to interest

pursuant to § 27-l-211, MCA, from the date that her right to

10

-
recover vested. Her right to recover vested on the date she paid

each debt and, in so doing, assumed the lender's right to be

repaid.

The fact that Terri paid part of the debts voluntarily cannot

change this result. To clarify, her payments were not wholly

voluntary; Terri felt compelled to pay in order to preserve her

relationships with the doctors and creditors. In any case, § 27-1-

211, MCA, extends to all parties who are entitled to recover

damages, irrespective of how the damages were incurred.

Pursuant to § 27-l-211, MCA, we hold that Terri is entitled to

interest on the debt owed to her, beginning on that date or dates

that her right to be repaid vested. Accordingly, we reverse and

remand this issue to the District Court for a factual determination

of when Terri's right to collect interest began.

V

Did the District Court err by ordering Gary to repay the

$1,4X8.82 debt at a rate equal to $7.50 per month?

The Special Master's proposed findings and conclusions in this

case acknowledged the debt owed to Terri, and would have required

Gary to repay her in one lump-sum upon the sale of the house. In

his request to modify those findings and conclusions, Gary

contended it would be "very difficult" for him to pay Terri a lumpsum payment, because the house had been sold "on a contract" and,

after making the monthly mortgage payment, he was only receiving

$7.50 per month.

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In its final order, the District Court accepted Gary's

proposed modifications without requiring any showing of proof

regarding the sale of the home or the equity payments Gary is

receiving. In explaining its adoption of Gary's proposed

modifications, the court noted Terri's failure to object to any of

Gary's proposals.

A s noted above, however, the Special Master's proposed

findings and conclusions, along with Gary's motion to modify them,

were filed on April 15, 1994. This was four days after the filing

of the District Court's final judgment, which substantially

incorporated both the proposed findings and Gary's proposed

modifications.

Terri alleges that she never objected to either document

because she never saw them until after they were filed and the

District Court's final judgment was handed down. Nothing in the

record contradicts this assertion. Terri alleges that it was an

abuse of discretion for the District Court to allow Gary to repay

her at the rate of $7.50 per month, and essentially penalize her

for failing to object to documents she had never seen. We agree.

At the current rate, it will take Gary sixteen years to pay off

this debt. We therefore remand this issue for the factual

determination of Gary's ability to pay and for the institution of

a reasonable payment schedule.

Affirmed in part, reversed in part and remanded to the

District Court for further proceedings in accordance with this

'\

opinion.

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13
December 19, 1995

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail,

following named:

Leonard J. Haxby, Esq.

Christine D. Somers, Esq.

1485 Continental Drive

P.O. Box 3008

Butte, MT 59702-3008

Gary Gregg Boyer

1317 West Granite Street

Butte, MT 59701

ED SMITH

CLERK OF THE SUPREME

STATE OF MONTANA

prepaid, to the

COURT