I:\ THE SllPRElvlE COlJR7' OF THE STATE OF 'LIONTANX

IU Rt: THE IIIXRR14GP OF. i* r* - .* 2 < BETH LAUREN MORGENSTERN, n,lkPa + @ p . + pv-* *2 @ g @ * ' - . ~aeV4& j BETH LAGREN MORGEYSTERN-KOUBA, 6 *.,,,,*, * .# : ~+ ,,<*

Petitioner, . il;iV . ,. ,. - .~-.,-- 1i:ljt

Respondcnt.

APPEAL, FROM: District Court of the Eleventh Judicial District, In and for the County of Flathead, The Honorable Stewart E. Stadier, Judge presiding

COUNSEL Of. RECORD:

For Appellant:

hfark Grams (pro se), L~ttleto~l, Colorado

For Respondent:

Gail H. C;olicen, Attorney at Law, tialnil~on, Montana

Subniitted on Briefs: May 23; 2002

Filed: Justice '1-erry V. 'I-ricweilcr delivered thc Opinion of the CourT.

"I jl Pursuant to Sccticm 1, Paragraph ?(ej; %lvlonlana Suprernc I'ortrt 1'305 lnternai

Operating Rules: the following decision shall not be cited as precedent but shall bc filed as

a public document with the Clerk of the Supreme Court and shall be reported by casc title,

Supreme Court cause number, and result to the State Reporter Publishing Company and to

West Group in the quarterly table of noneitable cases issued by this Court.

72 Following our decision in In re 12.frrvinge (Moryerzsterr~ 2001 MT oj'~Erlo~-gerzstern I),

173N, 306 Mont. 535. cert. denied, 70 U.S.L.W. 3725 (G.S. May 28,2002) (No. 01-9249),

and re~nand the District Court for the Eleventh Judicial District in Flathead County, tlle to

Petitioner, Beth Morgenstct-n-Kouba (Morgenstern) requested that the District Court amend

its previous Qualified Domestic Relatiotis Order (QDRO), to correct the payee riame and

make other minor adjustments to ensure that the appropriate party was responsible for tax

liability accruing from the transfer of the retirement account. 'The District Court granted that

request. The Respondent, Mark Grams, appcals from the District Court's Amended QDRO.

Morgenstern reclucsts sanctions and attorney fees be awarded against Grams. We aftir~n the

District Court's amendment of the QDRO and a~vard attorney fees to Morgenstcrn.

73 There are two issues presented on appeal:

'i4 I . .%rethe issues raised by Grams on appeal barred by principles of res juclicata or

waiver?

75 2. Is this an appropriate case for the imposition of sanctiorts pursuant to Rule 32,

M.R.App.P.'! FACTUAL AKD PROCEZ>1!RAI., HACKGKGUND

The factual background ofthis divorce and child custody procecdicg was sct hrih in

I, .1-liil-g-oisfei-t? '' 2-6.

77 Morgenstern and Grams dissolved their marriage in a California cou~rt November on

9, 1992. The court awarded joint custody of their two children. Physical custody was

awarded to Morgenstenl. The court ordered Grams to pay $1,222.00 per month for child

support. At the time of the dissolution of the marriage, Grams resided in Colorado.

Morgenstern resided in California, however, subsequently movcd to Kalispcll, Montana, in

1993.

18 On Septcmbcr 13, 1995. Morgcnstern filed the California dissolution decree in the

Eleventh Judicial District Court in Flathead County. During August 1997. Morgenstern

learned that Grams had disappeared and was suspected of criminal activity related to funds

missing from his fonner employer. Morgenstern then sought modification of the original

parenting plan from the Flathead County District Court; and on November 5, 1997, obtained

a Final Parenting Plan which suspended Grams' visitation and parental rights. continued his

child support responsibilities as set by the California Superior Court: and required a monthly

payment for medical insurance.

1 Sonietimc during the spring of 1909. Grams was arrested for alleged emberrlement

of his cmploycr's funds. On October 18, 1909, Grams filed a motion to modify the amount

of his child support payments. 'l'hc District Court set the issue for trial, and by the time of

trial, Grams' past duc support obligation lvas $38,059.74, After trial, on June 23,2000. the

3 District Court entered Findings of Fact, Conclusions of Law, and an Order in which ir foi,und

that Grams' circumstances had substantially changed and ordcrcd ~I-iirl ~nonihly his payr~~enis

be rcbuccd retroacti\~e Korcrnber 1; 1999. The Order required that the support obligation to

be subject to annual review and recalculation npon the request of either party. The Order

also established guidelines for Grams' reestablishment of aparental relationship. Finally, the

Order directed that a QIIRO be prepared by Morgenstern for delivery to Grants' employer

to permit immediate distrib~~tion his retirement plan to satisfy his unpaid support of

obligations. The QDRO was drafted on July 30, 2000, and sewed on Grams' former

employer.

10 1 Grams and PIilorgenstern appealed the District Court's decision. That appeal was

decided in Morgcnster-12 I. In that appeal Grams raised numerous arguments but did not

challenge the validity of the QDRO or the District Court's authority to issue the QDRO. We

affirmed the decision, including the District Cottrt's award of attoniey fees to Morgenstern,

and remanded for a deter-mination of attorney fees and costs incurred because of the appeal.

,bIorg-erzstt.rn I, ?[Ti 22-23.

TI 1 Since our opinion in h r g e n s t c v ~I, Morgenstern attempted to obtain Grams' ~

retirement funds, brrt was informed by the retirement plan administrator that the QDRO had

a technical flaw tllat needcd correction. The administrator recognized from the language of

the original order that Grams was supposed to be responsible for all tax liability as a result

of the transfer. but the administrator informed Morgenstem that in order to make sure the

transfer properly designated the tax liability, that the QDRO should be arnentlcd to designate

4 her children as "altcrnatc payees," rather than Morgenstern in her capacity.

f 12 011 October i 9,22001, tlorgeilsit-rn scnt a letter to Judgc Sradler with a copy eo Grams,

in which she rcqucsted that the District C:ourt amend thc QDRO to reflect rhc netcssary

change in designation of the payee. On October 25, 2001, thc District Court entcrcd an

amended QDRO reflecting the requested tax changes. On October 31, 2001, the

administrator of Grams' retirement plan issued payments of S17,166.33 and $1 7,166.33 to

Joel Morgetistern and Jamie Morgenste111-Grams, respectively. Grams now appeals the

District Court's amendments to the QDRO.

S7'ANI>-2RDOF REVIEW

71 13 The District Court's amendments to the QDRO were tcchrrical cliangcs in the f o m ~ of

an order to facilitate collection of child support. We will apply the same standard of review

that \ve would apply to an order which modified child support. We review a court's decision

to modify child support to determine whether the court abused its discretion. In re hlnr-rirrge

o f K o w ~ s (l995), 170 Mont. 517, 521, 893 P.2d 860, 863. i~

ISSUE I

$14 Are the issues raised by Grams on appeal barred by principles of res judicata or

waiver?

7I5 Grams raises four broad issues in this appeal from the Amended QDRO. First, Grams

contends that the Amended Q I X O violates the Employee Rctirelnent income Security Act

("ERISA"), 29 U.S.C. $5 1001 through 1461. His general argumcnt is that Colorado state

law, jwherc Grams' retireiuent account is located) exempts or otherwise protccts retirement

5 accounts fiom QIlROs. Grams' second contention is that the Amended QDRO vioiates

f~inds satisfaction ofthe principal hllontana law because it f i i i s gir distribute the rc~irement in

obligation owed, as opposed to the principal and interest. In addition, Gra17ts contends that

because the Montana Child Support Enforcement Division does not charge interest, equal

protection prohibits the District Court from doing so. Third, Grams contends that the

Amended QDRO violated his right to due process because his retirement funds were seized

before the opportunity for a hearing. Finally, Grams claims that the Amended QDRO

v~olates Montana common lam because it orders that payments be made d~rcctly the~r to

children illstead of blorgenstern.

7/16 Molgenstern contends that Grams' arguntcnts are elthcr harrcd hq prrnciplcs o f res

they were either raised or could have been raised prior to the first appeal or judicata becat~se

that this issue was waived because it was not raised in the District Court prior to this appeal.

'117 "A claim is res judieata when four criteria are met: the parties or their privies are the

same; the subject matter of the claim is the sante; the issues are the same and relate to the

same sub.ject matter; and the capacities of the persons are the same in reference to the subject

matter and the issues." ljragg v. ,blcLrrughlin~I999 M-T320, fi 16,297 Mont. 282, r! 16,903 P.2d 062, 1 16 (citing I,onc.$-1). ;Ililn~/ragoviclzr 1 Ilale R I)ve, P.C. (1995), 273 Vont. 506,

51 1, 905 P.2d 158, 161). "'The most important of the four criteria for res judicata is the

identity of the issues." Brugg; ti 16 (citing ?/(crt-t-iage ofBlair (1995), 271 Moiit. 196, 203,

8% P.2d 958, 963). Principles of res judicata procedurally bar a party from raising issues that cvere or coarld have been raised on direct appeal. i;olleiiotl 1: . Srare, I Y"i) blT 2 i0,s; 5 1,

296 Mant. 6: ! 51,986P.Zd 335, 5 i . !

=]I8 Grams previously raiscd his first two arguments, the ERISA and Colorado state law

isst~e the payment of principal r7ersusinterest issue, before the District Court prior to and

entry of the original. The District Court disregarded Grams' arguments and issued the

original QDRO. Grams appealed the District Court's findings of fact and conclusions of law,

but did not raise the ERISA and Colorado state law issues in rbforgei~sternI. Grarns now

presents arguments that he could have raised in his previous appeal. We hold that these

issues are bai-red by principles of res judicata and cannot now be considered.

119 Grams' third contention that his retirement funds were seized \vithout due process of

law is not barred by principles of res judicata, but is raised tbr the first time on appeal and

would normally he waived. However, because of the unusual procedural posture of the case

and to save the parties further time and expense we also note that it is without merit. First,

Grams' assertion that Clorgenstern received tbe check prior to the date of the Amended

QDRO is not supported by any substantial evidence. Copies of the check and disbursement

records to the extent they can even be considered part of the record, note the disbursement

date as October 30 or 3 I . 2001; several days after the October 25, 2001, Amended QDRO.

111 addition, we conclude that Grams received sufficient due process prior to the taking.

"t2lthough the phrase 'due process' cannot be precisely defined, the phrase expresses the

reyuirements of 'fundamental fairness."' /?7 re i3.F.-C'., 2001 MT283,T 50, 307 Mont. 358,

' 50, 37 P.3d 724,:: 50, (citing L~issiterv. Dcpc~rt,t~ewt ofSociu1 Set-vices (l981), 452 U.S. 7 ~'d'dd~';rl'bx 'ZE a[nx 0%luansrnd suo!znues jo uor~rsodur!aql . ~ o j .. ur: ase3 a ~ e u d o ~ d d a sly3 st ~zll, Z 3:1SS1 .["addl3 30 sasodrtid soj pa,yvn anssr. sly) waap ah\ "alojalayj, . . ~ ~ U L ~ lssg U I U I ~ S ayl os op 01 Qiunlsoddo Z~ . . at11 ~ A F ) lotr prp 31 LIP UO!ILI~J~R s , ~ n o 131sis!a ayz o) iy2nosq lou sent anss? s!ql asnmaq 3 s a p x uoddns s,l.inoa i a y s r a aql qltu oxab papuaurr: s,vnoa i3!.rIsra ~ y a[!suo3a.1 oi l a1qmrn ate arn ru~od Xp3a~rp s! . ~ ~ J [ P ?a[rq.m / L ( no lou ~ ~ u 'a~ocurayl~nyl ,feaddeuo acuy )SJI~ aylroj p3s1a.1osle sr ' 0 ~ pz.d OOL'6 ' J U ~ I / \ Ia) [ Z '(~86t),121ln~tyl+ln(l 1 - oi ' A uap.io,,+f 'la-i xa ' 1 j7 ~ .. uo [[!M a i w ur. u01~133p~nopasaq uo1~a2t~qo d d r tplrq3 srqLjs!~~s:ou ua.ip1!y3s y o 1 uqd . . ~o s lualuai!la.i s!y a i o ~rip331jp apvw szuauiLr:d uoddns p[ya 1r:q~ j ur!el3 ,sua.~t) 'L[[Ru!~ 0 ~ h ~sura.19 n j s u a s papualur aql ruog sailrlrqerl sei ayljo ~[qpasodwr lunoa~a ol ... . puv iuaiua.1!13.1 ,suresf) j o 11" 1001 qloq pue oxab . ~ o ? ~ d oxan papuaurv ay.1, '13a~oldol L~!umroddo u n 3~ loud e az-ey ~ o prp smelt) lay1 slsalalu! Lpado~d a u Lue 1 3 3 ~ IOU p!p o;rlabpapuaurv ayl ur spew s33ur:qa ayL .aJnzras LLIO.IJ Klil~ado~d 13alo.rd 03 Lllunuoddo i[ej a peq swr:.tt) sly laql paysrlas ale 2~ 'vno3 s r y ~ paurrtp pua panarAas alavl suo!sn~auo3 Lq s,lmoy)~anls!a a y ,L[sno~oa'~.t auop svy ay lay) sl3a~a.1 ~ os p~o3a.1n o 3 13u~sra pile sp~rnj u . . ayl ~uai.ua.~!la.~ srq a ~ n ~ d a 3 sldurarlr! sLu.iajsua2~o~.\: o) asoddo o~ iliun~roddoaidme pvy slu-ei3 'cc li . . 7 .v - 6 :s'I 1 1 7 6 m pc'd ~ 6 -1-z is '. - .11!0/1; 8 6 '~2: 'SE_[_I% ~ i)()()z ' ; : ~ I - ~ Jt ~ ? . ~ i/i~a~np~30.td .I[EJ sailnba~ . -. ssaturar ~e$uauepirnj ,(&pc)0 ~ ' ) ' 59 i 9 pcyg~-j 3 ' 8 5 1~ 'ES 12 '13'si) ' 2 ~ - 3 81~ 722 When an appeal is taken without substantial or reasonablc grountis, sanctions maybe

appropriate. Rule J L , I1.R.App.P.; S C ~ S L V.C I T ~ ~(~ I -I ' CIiniilio 19S9), 238 tlont.2 i8-22?. 777 P.Zd

335, 3 7 - 3 8 , While this Court will accommodate pro se litigants, wlte~r possible, \rJeneed

not do so, cspeeially when the litigant is "no strangerto litigation." Ht!flize 11. Boylnil(1989j.

239 Mont. 5 1 5 , j17: 782 P.2d 77,78.

723 We conclude that Grams' appeal is without merit and that it is appropriate to award

reasonable attorney fees to Morgenstern. Grams, while pro se, is "no stranger to litigation"

in this case, and has multiplied the proceedings beyorid what the issues in this case rcquire.

724 Amended QDRO is affirmed and this case is rcl~ianded the The District Cot~rt's to

District Court for a determination of Morgenstem's reasonable attorney fees and costs

incurred on appeal and entry ofjudgment for that amount.

- . .

We Concur: