340 P.3d 520
Mont.2014Background
- Tonia Marez and David Marshall divorced in 2003; final parenting plan awarded primary residential custody of daughter A.C.M. to Tonia and alternate-weekend visitation to David. The plan warned noncompliance could result in contempt.
- After years of hostile filings, in 2013 A.C.M. (age 14) refused visits with David; Tonia supported A.C.M.’s desire not to attend and pursued protective-order, adoption, and termination filings in related courts.
- David moved the Musselshell County District Court to hold Tonia in contempt for failing to facilitate court-ordered visitation; Tonia counter-moved to hold David in contempt for failing to pay VA-designated benefits and filed numerous pleadings.
- The District Court held a combined hearing, interviewed A.C.M. in camera, found Tonia had acquiesced in or encouraged A.C.M.’s refusal to visit, and found David had no contact with A.C.M. since April 2013.
- The court granted David’s contempt motion against Tonia (fine and 30-day jail sentence suspended if she complied), denied Tonia’s contempt claim against David, labeled Tonia a vexatious litigant, ordered pre-filing leave for future parenting pleadings, and directed Tonia to pay David’s attorney fees (amount to be determined).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court erred in holding custodial parent (Tonia) in contempt for failing to facilitate visitation when child refuses | Tonia: A.C.M., age 14, independently refused visits; mother cannot force child and therefore is not in contempt | David: Tonia encouraged/acquiesced in the child’s refusal and filed motions to obstruct visitation; court-ordered visitation must be enforced | Court affirmed contempt: parent must make good-faith efforts to secure child’s compliance; evidence supported finding Tonia influenced/acquiesced in refusal |
| Whether district court erred denying Tonia’s contempt motion against David for failure to pay VA benefits/support | Tonia: David violated earlier orders requiring VA benefits (or their equivalent) be paid to her | David: VA-designated benefits for Tonia/B.J.M. ceased in 2003; David paid ordered child support for A.C.M. | Court affirmed denial: David was not ordered to pay VA benefits for A.C.M.; child support ordered ($494/mo) was paid in excess |
| Whether court properly sanctioned Tonia under M. R. Civ. P. 11 and restricted filing without leave | Tonia: Sanctions and pre-filing restrictions were erroneous and overbroad | David: Tonia filed voluminous, harassing pleadings aimed at delaying and depriving visitation; sanctions warranted | Court imposed sanctions and pre-filing leave; however appellate review of fee award remanded as amount not yet determined (appeal of sanctions premature) |
Key Cases Cited
- In re Marriage of Lutes, 121 P.3d 561 (Mont. 2005) (contempt orders in family law appealability standard)
- Novak v. Novak, 320 P.3d 459 (Mont. 2014) (review standards for contempt: jurisdiction and evidentiary support)
- In re Marriage of Toavs, 56 P.3d 356 (Mont. 2002) (trial court retains continuing jurisdiction over custody)
- Billings v. Billings, 616 P.2d 1104 (Mont. 1980) (continuing jurisdiction principle)
- In re Marriage of Baer, 954 P.2d 1125 (Mont. 1998) (district court duty to enforce its orders)
- In re Marriage of Winters, 87 P.3d 1005 (Mont. 2004) (discretionary contempt power to protect court authority)
- Milanovich v. Milanovich, 655 P.2d 963 (Mont. 1982) (contempt powers necessary to enforce family law orders)
- Grounds v. Coward, 2 P.3d 822 (Mont. 2000) (“lone contempt order” vs. appealable contempt within broader order)
- Lee v. Lee, 996 P.2d 389 (Mont. 2000) (appealability limits for contempt orders)
- Rideout v. Rideout, 77 P.3d 1174 (Wash. 2003) (parental obligation to overcome child resistance to visitation)
- MacIntosh v. MacIntosh, 749 N.E.2d 626 (Ind. Ct. App. 2001) (supporting rule that parent must attempt to secure child’s compliance)
- Smith v. Smith, 434 N.E.2d 749 (Ohio Ct. App. 1980) (same)
- Commonwealth ex rel. Ermel v. Ermel, 469 A.2d 682 (Pa. Super. Ct. 1983) (parent’s duty to nurture positive regard for other parent)
- Hancock v. Hancock, 471 S.E.2d 415 (N.C. Ct. App. 1996) (limits on contempt where parent does everything short of force)
- State v. Loh, 914 P.2d 592 (Mont. 1996) (district court discretion under local rules for unanswered motions)