No. 82-155 INTHE SUPREP! COURT OF THE STATE OFMONTANA 1982

INRE THE MARRIAGE OF: LILLIANA. GRENFELL, Appellant



### vs

# . ALLENW. GRENFELL, Respondent, and INRE THE MARRIAGE OF: ALLEN

### W. GRENFELL,



### vs

# . LILLIANA. GRENFELL.

Appeai from: DistrictCourtof the ThirdJudicial District, 

### Inand fortheCountyof DeerLodge HonorableMarkP. Sullivan, Judgepresiding. Counselof Record: For Appellant: Knight, Dahood, McLean & Everett; David M. McLean, Anaconda, Montana For Respondent: R. LewisBrown, Jr., Butte, Montana



# - Submittedon briefs: August 12, 1982 Decided: October4, 1982

Filed: 

# ott

# a

# -1982

%mg.*h Clerk

### Mr. Chief Justice Frank I. 

### Haswell delivered the Opinion of the Court. Lillian A. Grenfell appeals from an order of the Deer Lodge County District Court holding that Allen W. Grenfell was not in contempt of court and changing the payment schedule on support and maintenance. We affirm. In 1976, Lillian and Allen filed suit against each other for divorce. The actions were consolidated. At the divorce hearing the evidence disclosed a $3,806.92 spending spree by Lillian following the parties' separation with the indebtedness charged to Allen. Lillian had also forged Allen's name to an income tax refund check and spent the $1992. Allen had been paying $450 per month in temporary child support and maintenance, which he reduced to $300per month following the spree. On March 3, 1977, the District Court issued findings of fact and conclusions of lawand entered a decree dissolving the marriage. The court found Lillian liable to Allen for the shopping spree and the tax refund to the extent of $5,798.92. The court ordered Lillian to repay Allen by transferring to him stock worth $5,798.22 from her half of the stock in the family corporation. 

### The court also ordered Allen to pay $375 per month as child support and maintenance, stating that such a reduction would enable him to liquidate "the debts Mrs. Grenfell showered upon him

# ..." over the course of four or fiveyears. The decree was modified on July 28, 1977. On appeal of that order, this Court held that the District Court had improperly penalized appellant twice for thedebts shehad accumulated--firstby orderingher to give



### a portion of her corporate stock shares to Allen and againby reducing the child support and maintenance tobe paid by Allen. Grenfell v. Grenfell (1979), 182Mont. 229, 233, 596 P.2d 205, 207. On remand theDistrict Court held a hearing toadjust the property rights between the parties. The stock in the family corporation was once again equally divided between theparties and supportand maintenancepayments 

### were raised to$450permonth. Allen has failed to pay any of the debts from the shopping spree, and Lillian has been sued by most of the creditors involved. She requested that Allen be held in contempt of court. The District Court held that Allen had not violated the provisions of tne amended divorce decree and was therefore not in contempt of any order of the District Court and ordered Allen tomake support and maintenance payments on or before the 25thday of eachmonth. Two issues areraisedon appeal: (1) Whether Allen violated the provisions of the amended divorcedecree and shouldhave been held incontempt of court; and (2) Whether theDistrictCourterred inmodifying the schedule for child support and maintenance payments - sua sponte? For thisCourt toreverse the District Court, Lillian rnust demonstrate that there was a 

### clear abuse of discretion by the District Court, that there is a clear preponderance of evidence against the District Court's findings, and she must overcome the presumption that the judgment of the District Court is correct. Jensen v. Jensen (1979), 182 Mont. 472, 474, 597 P.2d 733, 734.The District Court has the power to compel obedience to 

### its orders, section 3-1-111(4), MCA, and topunish disobedience of an order in a cause before it as contempt of court, section 3-1-501(e), MCA. See also, Board of Commissioners of Flathead County v. Eleventh Judicial District Court (1979), 182Mont. 463, 470, 597 P.2d 728, 732; In Re Nelson et al. (1936), 103 Mont. 43, 52, 60 P.2d 365, 369, and cases cited therein. The District Court is not, however, bound to find a contempt of court where the facts do not supportwillfuldisobedience of a courtorder. Williams

v. Budke (1980), Mont. 

## , 606 P.2d 515, 518, 37 St.Rep. 228, 232; Statev. District Court of Third Judicial District (1938), 107Mont. 185, 81P.2d 692. Here, the District Court had before it the agreed facts as presented by counsel for both parties, the transcript of the modification hearing on remand, and the previous orders, findings of fact, and conclusions of law entered in this action. The record on appeal supports the District Court's determination thatAllen 

### was not inviolation of thedivorce decree

### as amended. The decree of dissolution was entered on March 3, 1977. On July 28, 1977, the findings of fact, conclusions of law and supporting opinion of the District Court 

### were modified and supplemented. 

### Inthedecree and 

### its supporting findings, conclusions and opinion, the District Court plainly indicated that Lillian owed Allen property to the extent of the $5,798.92 totalof the shopping spree and the tax refund check appropriated by Lillian. The decree ordered Lillian to transfer stock worth $5,798.92 toAllen tobalance the property rights of theparties. The findings

### of fact and the decree's supporting opiniorl indicated that Allen was to pay three specificbills that totaled less than $200 

### "as he [was] able" and provided as the rationale for the lowering of the child support and maintenance payments to $375

### per month that thiswould giveAllen the opportunity to pay off the bills Lillian had "showered upon him" over four to fiveyears. The court noted in the findings of fact that Lillian's shopping spree had plunged Allen so far into debt that creditors

### were beginning to suehim on the accounts. The decree did not, however, order Allen to assume responsibility for the debts. On appeal this Court held that the reduction in child support and maintenance for the purpose of allowing Allen to liquidate 

### the debts constituted a second penalty to Lillian since she had already been required to transfer stock to Allen in order to balance the property award. Upon remand, the District Court divided the stock equally between the parties and then proceeded to raise the child support and maintenance awards on the basis of changed circumstances. 'The record on appeal does not support Lillian's contention that tne raise in the maintenance and support award was in part due to the District Court's consideration of the previous reduction in child support and maintenance for the purpose of allowing Allen to liquidate the debts. The findings and conclusions of the court in support of the amended decree make no reference to the previous reduction. They base the raise in the award solely upon a change in circumstances. Again, the decree did not orderAllen topay the debts.

### The record demonstrates an awareness on the part of the original trial court of the likelihood that Allen would be sued for collection on the accounts and that therefore the property award should be adjusted accordingly. It does not show that this was considered thereafter on remand when the trial court equalized the property award and adjusted the support and maintenance award based upon a change in circumstances. The record supports the order of the District Court entered on March 17, 1982, which held that Allen had not vlolated the decree of divorce as amended and entered on Narch 6, 

### 1980. Lillian has failed to make a showing that Allen is in contempt of court in regard to the bills from the shopping spree. Nor does the record show thatAllen was "able" to pay the three minor bills, was requested to do so and refused. This argument fails. The second issue raised by Lillian is whether the District Court erred in modifying the schedule for child support and maintenance payments sua sponte. Here, however, tile court's action was not sua sponte. Lillian's argument iswithoutmerit. Lillian, in her affidavit in support of order to show cause, requested the District Court to order Allen to make payments "whendue." At thehearing on this matter, counsel for Lillian again asked the court to examine existing problems with thepayment schedule for supportpayments. The original decree and the amendments of July 28, 1977, called for one payment on the 15th day 

### of the month. On remand, the District Court provided that the support payments be made "on a bi-monthly schedule as required bytheoriginaldecreeof the court on March 3, 1977toconform withhispay periods setby employer." Since conflictexistsbetween thepayment schedule as set forth in the original decree and in the decree as amended on remand, it was theduty of theDistrict Court to resolve it. The District Court questioned both Allen and Lillianastotheexistingpayment scheduleand theproblems with it. Modification of the schedule to conform to the original requirement of one payment per month and to allow Allen toprocess hispaycheck before sending hismoney order tothe clerk of court's office is well within the District Court's discretion. Section 3-1-111(8), 

### MCA. Affirmed.

Chief Justice