Time-Limited Contractual Rights to Post-Divorce Pet Custody and the Appealability of Contempt Orders in Montana: Commentary on In re Marriage of Burgard & Jacobsen

I. Introduction

The Montana Supreme Court’s memorandum opinion in In re the Marriage of Burgard & Jacobsen, 2025 MT 279N (DA 24‑0321), presents a deceptively simple dispute over an elderly cat, “Yasmine,” that raises important issues about:

how courts interpret marital property settlement agreements (MPSAs) as contracts;
whether post-divorce rights to a family pet can be indefinite or are time-limited;
the narrow appealability of contempt orders under Montana law; and
the Montana Supreme Court’s own handling of inconsistent jurisdictional rulings.

Formally, the opinion is nonprecedential: issued as a memorandum under Section I, Paragraph 3(c) of the Court’s Internal Operating Rules (IOR), it “shall not be cited and does not serve as precedent.” Substantively, however, it applies settled law to a fact pattern that will recur in family law practice: the enforcement (or attempted re‑enforcement years later) of a property settlement provision relating to a family pet.

This commentary analyzes the decision in depth, focusing on:

the factual and procedural background of the nearly decade-long controversy over Yasmine;
the Court’s treatment of the MPSA as a contract and the expiration of Jacobsen’s rights;
the standards governing contempt and the limited appealability of contempt orders;
the significance of the Court’s self‑acknowledged inconsistency regarding appealability; and
the broader implications for Montana family law and contractual pet custody arrangements.

II. Summary of the Opinion

Jacobsen appealed from:

the district court’s February 15, 2024 Findings of Fact, Conclusions of Law and Order denying her motion to hold her ex‑husband, Burgard, in contempt for not turning over the parties’ cat; and
a May 2, 2024 Notice and Order to Close Matter.

The Montana Supreme Court:

reviewed the contempt ruling for blatant abuse of discretion (citing In re Marriage of Harms),
treated the MPSA as a contract governed by contract law (under § 40‑4‑201(5), MCA, and Harms),
held that the MPSA’s provision on Yasmine was unambiguous and gave Jacobsen only a time-limited right to take possession of the cat following Burgard’s notice in 2016;
concluded that Burgard lawfully retained Yasmine after the expiration of that time, since Jacobsen failed to act within the agreed extension (“weeks or months, and not years”);
rejected Jacobsen’s argument that the district court had “misinterpreted” or impermissibly modified the MPSA; and
found no blatant abuse of discretion in the district court’s refusal to hold Burgard in contempt.

While Burgard argued that the appeal should be dismissed under § 3‑1‑523(2), MCA, as an improper appeal from a non-appealable contempt order, the Court—after acknowledging its own “rather inconsistent” prior orders on appealability—proceeded to decide the case on the merits and affirmed. Because the Court’s inconsistent rulings contributed to the confusion, it declined to award Burgard attorney’s fees and costs on appeal.

III. Factual and Procedural Background

A. The Marital Property Settlement Agreement and Yasmine

In connection with their 2015 divorce, Burgard and Jacobsen executed a Marital Property Settlement Agreement (MPSA) on November 23, 2015. The clause concerning the parties’ cat, Yasmine, provided:

“Wife shall be awarded possession of the parties’ cat (Yasmine). Husband agrees to care for said cat until Wife requests possession thereof. Following the sale of the marital home as set forth under ¶ 9(d) below, if Husband’s new residence does not allow cats, he shall notify Wife and Wife shall make arrangements to either take the cat[] or make other arrangements for the care of the cat[] within 20 days following Wife’s acknowledged receipt of said notice from Husband. If Wife fails to take the cat or make arrangements for care, Husband shall be allowed to give the cat[] to an appropriate caregiver.”

Key structural features of this provision:

Jacobsen (“Wife”) was awarded possession of Yasmine.
Burgard (“Husband”) would care for the cat until she requested possession.
If his new residence, following the sale of the marital home, did not permit cats, he had to notify her.
After notice, she had 20 days to either:
- take possession of Yasmine, or
- “make other arrangements for the care” of the cat.
If she failed to act, Burgard could “give the cat to an appropriate caregiver.”

The decree of dissolution was entered December 17, 2015.

B. 2016: Notice, Extension, and Inaction

Post-dissolution, Burgard remained in the family home; Yasmine stayed with him. In June 2016, in connection with the sale of that home, Burgard—through counsel—sent formal written notice to Jacobsen’s attorney (June 16, 2016), stating that the marital home was being sold and requesting that Jacobsen take custody of Yasmine as contemplated by the MPSA.

This triggered the contractual mechanism:

Jacobsen’s 20-day window to take the cat or arrange for her care began upon “acknowledged receipt” of that notice.

Jacobsen was unable to take Yasmine or arrange care and, on July 29, 2016, requested an extension of the deadline. Burgard responded the same day that he was:

“OK with it being longer than exactly 21 days, as long as there is momentum and progress towards a solution,”

and agreed to extend the timeline for

“a matter of weeks or months and not years.”

Despite this extension, Jacobsen never:

took possession of Yasmine,
made alternative arrangements, or
provided financial support for the cat.

Yasmine remained with Burgard continuously.

C. 2023–2024: Renewed Demand and Contempt Motion

Nearly seven years later, in February 2023, Jacobsen attempted to reclaim possession of Yasmine. Burgard refused, asserting that Jacobsen’s rights under the MPSA had long since expired and that she had forfeited any claim to the cat.

On November 16, 2023—approximately eight years after the divorce—Jacobsen filed a Motion for Contempt in the Eleventh Judicial District Court, alleging Burgard had violated the MPSA by not delivering Yasmine to her.

At a January 16, 2024 hearing, the district court orally denied the motion. It made findings including:

Burgard had given Jacobsen proper notice under the MPSA.
Jacobsen understood that notice (corroborated by a Facebook post—Exhibit D—in which she tried to find someone to take the cat).
Jacobsen provided no financial support for Yasmine.
Burgard had granted an extension “of weeks and months, but not years.”

On February 15, 2024, the court entered written Findings of Fact, Conclusions of Law and Order denying contempt. Jacobsen did not appeal within 30 days.

D. Post-Judgment Motions and Appealability Tangle

Instead, Jacobsen pursued several procedural avenues:

February 27, 2024 – Rule 59/60 Motion. Jacobsen moved to present additional evidence under M. R. Civ. P. 59 and 60.
March 18, 2024 – Petition for Out-of-Time Appeal. She sought an out-of-time appeal of the February 15 order. On March 26, 2024, the Montana Supreme Court denied the petition, holding that the order did not affect her substantial rights and was not appealable.
Rule 59/60 Motion Deemed Denied. The district court did not rule on her Rule 59/60 motion; by operation of Rules 59(g) and 60(c), it was deemed denied after 60 days.
May 2, 2024 – Notice and Order to Close Matter. The district court issued a notice and order closing the case. Jacobsen then filed the present appeal.

After Jacobsen filed her opening brief, Burgard moved to dismiss, invoking § 3‑1‑523(2), MCA, which generally bars appeals from contempt orders unless they contain an ancillary order affecting substantial rights. He emphasized that the Supreme Court itself had already treated the February 15 order as nonappealable in its March 26 denial of the out-of-time appeal.

The Supreme Court acknowledged that Burgard’s argument was “persuasive” given the Court’s “rather inconsistent orders,” but it proceeded to reach the merits anyway, reasoning (per an order of May 6, 2025, referenced in footnote 1) that the district court’s final closure of the matter made the February 15 order appealable.

IV. Precedents and Authorities Cited

A. In re Marriage of Harms, 2022 MT 41, 408 Mont. 15, 504 P.3d 1108

The Court relies heavily on Harms for two propositions:

Standard of Review for Contempt. Orders denying contempt are reviewed for a blatant abuse of discretion. The test is whether the trial court:

“acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice.”
MPSAs as Contracts. Marital property settlement agreements are governed by general contract principles. Their construction and interpretation, and determinations of ambiguity, are reviewed for correctness.

Harms thus anchors both the deferential standard applicable to the contempt ruling and the de novo standard on contract interpretation.

B. Eschenbacher v. Anderson, 2001 MT 206, 306 Mont. 321, 34 P.3d 87

Cited for the established principle that contract interpretation and the determination of ambiguity are questions of law, reviewed for correctness. This case supports the Court’s authority to independently interpret the MPSA’s language regarding Yasmine.

C. Morley v. Morley, 2022 MT 12, 407 Mont. 241, 502 P.3d 666

From Morley, the Court reaffirms:

“Where a contract provision is clear and unambiguous, a court must apply the language as written.”

This principle is central to the Court’s refusal to treat Jacobsen’s subjective reading (that she had an “indefinite right” to Yasmine) as altering the clear temporal limits built into the MPSA.

D. Gabert v. Seaman, 2025 MT 198, 424 Mont. 9, 574 P.3d 920

Although rendered the same year as Burgard & Jacobsen, Gabert is invoked for a familiar rule of contract law:

Mere party disagreement over meaning does not create ambiguity; ambiguity is determined objectively.

This undercuts Jacobsen’s attempt to manufacture ambiguity in the MPSA by asserting her own different understanding.

E. Statutes and Rules

§ 40‑4‑201(5), MCA – Provides that, when approved by the court, a separation (or property settlement) agreement is binding upon the court, and generally is treated under contract law principles. This is the foundation for analyzing the MPSA as a contract.
§ 28‑3‑301, MCA – Contracts must be interpreted to give effect to the parties’ mutual intention at the time of contracting.
§ 28‑3‑303, MCA – Where possible, the parties’ intention must be determined from the writing alone (the “four corners” rule).
§ 3‑1‑523(2), MCA – Governs appealability of contempt judgments: generally, contempt judgments are final and not appealable unless the order includes an ancillary order affecting substantial rights. Burgard relied on this in seeking dismissal of the appeal.
M. R. Civ. P. 59 & 60 – Rules governing post-judgment motions for new trial, amended findings, and relief from judgment. Subsections 59(g) and 60(c) deem such motions denied if not ruled upon within 60 days.
Montana Supreme Court IOR, Section I, ¶ 3(c) – Authorizes memorandum opinions in cases controlled by settled law or clear application of standards of review; designates such opinions as noncitable and nonprecedential.

V. The Court’s Legal Reasoning

A. Appealability of the Contempt Order

Burgard argued that the appeal must be dismissed under § 3‑1‑523(2), MCA, because the February 15, 2024 order:

was a straightforward denial of a contempt motion; and
did not include any ancillary order affecting substantial rights (e.g., modification of the property disposition, imposition of fines, or other substantive relief).

The Supreme Court conceded that Burgard’s argument was “persuasive,” particularly as the Court itself had previously denied Jacobsen’s petition for an out-of-time appeal on the ground that the same order was nonappealable and did not affect her substantial rights.

However, in an intervening order (May 6, 2025, mentioned in footnote 1), the Court had determined that, once the district court entered its May 2, 2024 Notice and Order to Close Matter, there was now a final judgment closing the case. On that basis, the Court treated the February 15 contempt order as properly before it on appeal.

The Court candidly acknowledges that its orders were “rather inconsistent” and “arguably inconsistent,” but nonetheless proceeds to the merits. This is a pragmatic choice: rather than resolving a thorny jurisdictional issue definitively, the Court elects to hear the case—likely in part because its own prior rulings created the confusion.

B. Interpretation of the MPSA: Time-Limited Right vs. Indefinite Right

Jacobsen’s core argument on the merits was that the district court had misinterpreted the MPSA, effectively modifying the divorce decree by depriving her of an “indefinite right” to Yasmine. The Supreme Court rejects this characterization.

1. Application of Contract Interpretation Statutes

Applying §§ 28‑3‑301 and 28‑3‑303, MCA, the Court emphasizes:

The goal is to determine the mutual intention of the parties at the time they contracted.
Where possible, that intention must be ascertained from the writing alone.

Under Morley and Gabert, if the language is clear and unambiguous, the court must:

apply it as written, and
not treat mere disagreement as creating ambiguity.

2. Reading the Yasmine Clause

The Court underscores several textual points:

Jacobsen is “awarded possession” of Yasmine—but that award is subject to the operative mechanism triggered by the sale of the marital home and Burgard’s new residence not allowing cats.
Upon Burgard’s notice, Jacobsen has a specific, short period (20 days) to act—either to take Yasmine herself or arrange alternative care.
If she fails to act within this period, Burgard “shall be allowed to give the cat to an appropriate caregiver.”

Once Burgard provided notice in June 2016, Jacobsen’s 20-day contractual window began to run. She then negotiated an extension, which Burgard granted, but only:

“for a matter of weeks or months and not years.”

The Court treats this extension as a limited, mutually agreed modification of the MPSA’s time frame, not as an indefinite waiver of Burgard’s rights or an ongoing obligation to maintain Yasmine for Jacobsen’s future convenience.

3. Expiration of Jacobsen’s Rights

Critically, Jacobsen did not:

take Yasmine, or
make other arrangements for her care,

within “weeks or months” of the 2016 extension. Instead, she remained inactive for almost seven years.

The Court concludes:

Her rights to obtain Yasmine under the MPSA expired months after the agreed extension, not years later.
Upon expiration of that period, Jacobsen had no further contractual right to demand possession of Yasmine under the MPSA.

In other words, her original “award” of possession was conditioned on timely exercise of her rights following notice; it was not an enduring, indefinite option she could exercise any time during the cat’s life.

4. “Appropriate Caregiver” Includes Burgard Himself

The MPSA allowed Burgard, if Jacobsen failed to act, to “give the cat to an appropriate caregiver.” Jacobsen did not argue (at least as reflected in the opinion) that this term excluded Burgard himself. The Court notes explicitly:

“There is nothing in the MPSA precluding Burgard from then giving the cat to himself.”

This is a pragmatic reading:

Burgard was the existing caregiver for Yasmine.
The phrase “appropriate caregiver” is functional, not strictly third-party in nature.

Thus, upon Jacobsen’s failure to act within the extended time frame, Burgard could lawfully retain Yasmine as her “appropriate caregiver.” This conclusion is central to the finding that he was not in violation of the MPSA.

C. No Improper Modification of the Divorce Decree

Jacobsen’s argument that the district court “misinterpreted” the MPSA to the point of improperly modifying the decree is squarely rejected. The Supreme Court emphasizes:

The district court did not alter the terms of the MPSA.
It simply applied the clear terms—including the notice-and-20-day mechanism and the agreed extension.
Proper application of an unambiguous contract is not a modification; it is enforcement.

By framing Jacobsen’s claim in this way, the Court implicitly draws a line between:

using contempt to enforce a decree or agreement, and
using contempt as a vehicle to revisit or expand rights long after they have lapsed.

D. Standard of Review and Deference to the District Court

Under Harms, the Court reviews the denial of a contempt motion for a “blatant abuse of discretion.” Having found the MPSA unambiguous and the district court’s interpretation correct, the Court concludes there was no abuse of discretion, let alone a blatant one.

The district court’s factual findings—that notice was given and understood, that Jacobsen did not support the cat, and that the extension was limited—were supported by evidence, including Jacobsen’s own Facebook post seeking someone to take Yasmine. Accordingly, there was:

no arbitrary or unreasonable action;
no failure to exercise conscientious judgment; and
no substantial injustice.

E. Attorney’s Fees and the Court’s Own Inconsistency

Because the appeal would likely never have been perfected but for the Supreme Court’s own inconsistent rulings on appealability—first deeming the order unappealable, then later treating it as appealable once final judgment issued—the Court declines to award attorney’s fees and costs to Burgard.

This reflects a measure of institutional fairness: Jacobsen’s pursuit of the appeal is not treated as frivolous or sanctionable when the Court itself played a role in the procedural confusion.

VI. Impact and Practical Implications

A. Pet Custody as Property and Time-Limited Rights

Though nonprecedential, the opinion is instructive on how Montana courts will likely handle disputes over pets allocated in divorce:

Pets remain treated as property—subject to contractual allocation in MPSAs and enforcement through property and contract principles.
Where an MPSA grants one party “possession” of a pet but establishes a specific mechanism and timeline for actual transfer, the right can be lost by inaction.
Parties cannot assume an indefinite future entitlement to a pet when their agreement clearly conditions that entitlement on timely conduct.

Practitioners drafting MPSAs involving pets should:

be explicit about timelines and consequences of non-performance; and
advise clients that failure to act within specified time frames may permanently extinguish their rights.

B. Contempt as an Enforcement Tool, Not a Second Bite at the Apple

The case underscores the limited role of contempt in post-dissolution litigation:

Contempt is designed to enforce an existing decree or order, not to reinstate lapsed rights or alter the property division years later.
Attempts to use contempt to reopen settled property issues—especially after long delays—are likely to fail.

This promotes the finality of divorce settlements and discourages long-delayed litigation over property allocations, including pets.

C. Appealability of Contempt Orders

Although the Court does not offer a new or definitive gloss on § 3‑1‑523(2), MCA, the case:

reaffirms that simple contempt rulings (especially denials of contempt without additional relief) are generally not appealable absent an ancillary order affecting substantial rights;
suggests that where a contempt ruling is embedded in a final disposition closing a case, appellate review may be available in that context; and
illustrates the practical difficulties that can arise when appellate courts shift their characterization of orders between nonappealable and appealable.

Lawyers should be vigilant in:

identifying appealable orders accurately and promptly;
understanding that not every adverse contempt ruling can be appealed; and
avoiding overreliance on contempt for issues that should be addressed through other procedural mechanisms (e.g., direct appeals from final judgments, motions to amend, or separate civil actions where appropriate).

D. Judicial Candor and Institutional Fairness

Footnote 1, where the Court acknowledges its own “arguably inconsistent” orders, is notable for its judicial candor. The refusal to award fees against Jacobsen reinforces a broader message:

When appellate courts contribute to procedural confusion, they may take that into account in deciding ancillary issues such as fees and sanctions.

VII. Complex Concepts Simplified

A. Memorandum Opinions and Nonprecedential Status

Under the Montana Supreme Court’s Internal Operating Rules:

Certain cases may be resolved by memorandum opinion when they involve issues controlled by settled law or straightforward applications of existing standards.
These opinions are noncitable and do not serve as precedent for other cases.
They are, however, binding on the parties and are reported in quarterly lists.

In Burgard & Jacobsen, the Court emphasized that the case “presents a question controlled by settled law or by the clear application of applicable standards of review.” That is why it chose the memorandum format.

B. Contempt and Its Appealability

“Contempt” generally refers to disobeying or disrespecting a court order. In civil family law contexts, contempt is often used to:

compel compliance with child support, custody, or property orders; or
punish past noncompliance.

In Montana, § 3‑1‑523(2), MCA, provides that:

Contempt judgments are usually final and not appealable directly.
They may be appealable if the contempt order includes an ancillary order that affects substantial rights (for example, significant fines, incarceration, or modification of substantive rights).

In this case, the denial of contempt itself did not alter anyone’s rights; it simply left the status quo in place. That is why the Court initially treated it as nonappealable, though later concluded that, in light of final judgment closing the case, it would review the ruling.

C. Contract Interpretation and Ambiguity

Basic contract interpretation principles applied here:

Mutual Intent: Courts seek to discern the parties’ shared intent when they signed the agreement, not what either party later claims to have meant.
Four Corners Rule: If possible, the court determines intent solely from the written document, not from outside statements or subjective views.
Unambiguous Language: If the language is clear, the court applies it as written; it does not rewrite the contract or insert new terms.
Ambiguity: A contract is ambiguous only if it is reasonably susceptible to more than one reading. Mere disagreement by the parties does not prove ambiguity.

Here, the MPSA’s 20-day deadline after notice, and the express condition that an extension applied only for “weeks or months and not years,” made the time limitation clear, so no ambiguity existed.

D. Motions under M. R. Civ. P. 59 and 60

Rules 59 and 60 allow a party to seek post-judgment relief:

Rule 59: Motions for new trial or to alter or amend a judgment.
Rule 60: Relief from a judgment for reasons such as mistake, newly discovered evidence, fraud, or other extraordinary circumstances.

Montana’s rules also provide that if the court does not rule within 60 days on such motions, they are deemed denied. That is what happened to Jacobsen’s motion; the district court’s silence triggered an automatic denial, after which the court formally closed the case.

E. Pets as Marital “Property”

Although many people view pets as family members, in most jurisdictions (including Montana), pets are legally classified as personal property. In divorce:

Pets are typically allocated in the same way as other marital assets.
“Custody” arrangements for pets are a matter of contract between the parties, not of statutory child custody law.

In Burgard & Jacobsen, the Court treats Yasmine’s placement entirely in terms of contract and property rights, not in terms of “best interests of the animal” or ongoing pet‑custody arrangements as seen in some other jurisdictions.

VIII. Conclusion

In re the Marriage of Burgard & Jacobsen is, on its face, a modest memorandum opinion about an 18‑year‑old cat. Yet it offers a clear, practical application of Montana’s settled doctrines on contract interpretation, contempt, and appealability in the family-law context.

Key takeaways include:

MPSAs are construed as contracts, and clear, unambiguous provisions—especially those imposing deadlines—will be enforced according to their terms.
Rights granted in a divorce agreement, including rights to a pet, can be time-limited; failure to act within the agreed time can permanently extinguish those rights.
“Appropriate caregiver” language in a pet provision can, as a matter of practical interpretation, include the spouse who is already caring for the pet.
Contempt is not a tool to resurrect long-expired rights; it is primarily an enforcement mechanism, and simple denials of contempt are generally nonappealable absent an ancillary order affecting substantial rights.
Judicial candor about inconsistent procedural rulings, coupled with the denial of attorney’s fees in light of that confusion, reflects a concern for fairness when litigants reasonably rely on the court’s own signals.

Although the opinion is nonprecedential under the Court’s Internal Operating Rules, it nonetheless serves as a valuable guide for practitioners in drafting and enforcing marital property settlement agreements—especially those that involve emotionally charged but legally “ordinary” assets such as family pets. It emphasizes that, in Montana, clarity, timeliness, and adherence to contractual terms are critical, and that the law will not indulge indefinite, unexercised rights years after a divorce decree has become final.