No. 81-471
IN THE SUPREME COURT OF THE STATE OF MONTANA
1982
LASZIO TORMA,
Plaintiff and Appellant,
and
SANDRA LEE TORMA,
Defendant, Respondent and Cross-Appellant.
Appeal from: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin
Honorable W. W. Lessley, Judge presiding.
Counsel of Record:
For Appellant:
Moore, Rice, O'Connell & Refling, Bozeman, Montana
For Respondent:
Landoe, Brown, Planalp, Kommers and Lineberger,
Bozeman, Montana
Submitted on Briefs: February 1, 1982
Decided: May 6, 1982
Filed: I'UIAY 6
d
Clerk
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of
the Court.
This appeal results from the Eighteenth Judicial District
Court's interpretation and enforcement of a 1971 divorce
decree.
Pursuant to a 1971 dissolution decree, respondent
Sandra Torma was given custody of their minor children,
Christopher and Cynthia, then ages 10 and 7, respectively,
and appellant Laszlo Torma was "ordered to pay for the
support of the two minor children in the sum of $125.00 per
month. . ." Additionally, Sandra was given the right to
remain in possession of their jointly-owned house, located
at 1208 South Bozeman Avenue, Bozeman, Montana, "until such
time as it is otherwise mutually agreed between the parties
or until further order of this Court. . ."
Eight and one-half years later, in January of 1979,
Christopher, five months short of age eighteen, joined the
Navy, thus leaving respondent's immediate custody and care.
Laszlo presently concluded that his support obligation as to
Christopher was terminated, his underlying assumption being
that the decree provided for a severable sixty-two dollar
and fifty cent obligation per dependent child per month.
The clerk of court's records indicate that as of that month
Laszlo reduced his child support payment by one-half.
Sandra disagreed with Laszlo's interpretation of the
decree. She instituted a contempt proceeding in March of
1981 seeking child support arrearages due to Laszlo's unilateral
reduction in payments; she also sought modifica,tionof the
decree, requesting an increase in child support to $200.00
per month.
After hearing the District Court concluded that Laszlo
was not entitled to an automatic reduction in child support
upon Christopher Torma's emancipation. Accordingly, appellant
was ordered to pay respondent $1,625.00, a sum representing
the balance of the monthly obligation owing from January,
1979 to the date of hearing. Additionally, the court found
that Cynthia, a high school senior, was "an excellent student,
ambitious and hopeful of continuing to a college degree" and
that "she [would] need a place in which to live and increased
financial needs to finish college." Judge Lessley concluded
that appellant's obligation to provide $125.00 per month for
Cynthia's support continued at least until she reached 18
and until she became 22 years old if she attended college.
A corollary conclusion reached by the court was that the
parties could not sell the Bozeman residence until Cynthia
turned 22; the net proceeds from the prospective sale were
then to be divided equally between the parties. Attorney's
fees were to be paid by the respective parties.
Both parties appeal from the lower court's order.
Laszlo contends the district court erred in ordering him to
pay the child support arrearages, continuing his child
support obligation until Cynthia reached 22 if she attends
college, and postponing sale of the parties' house until
Cynthia is 22 years old. Sandra raises as error the District
Court's failure to order Laszlo to pay interest on the
support arrearages and Sandra's attorney's fees, the denial
of her motion to increase child support, and the equal
division of the net proceeds of the future sale of the
parties' residence.
Child Support: Obligations for Adult Children, Arrearages,
Interest, and Denial of Modification.
Appellant contends that he is not legally obligated to
pay child support for his adult children. Appellant's
understanding of Montana law is correct: unless the parties
agree in writing or the dissolution decree expressly provides
for termination of child support at a specified age or time,
a parent is not obligated to support an 18 year old or
otherwise emancipated child. Chrestenson v. Chrestenson
(1979), 180 Mont. 96, 589 P.2d 148. Finding no agreement
here nor any express provision in the divorce decree, Chrestenson
controls. Accordingly, appellant was not obligated to
support Christopher after he entered the Navy and appellant
will not be obligated to support Cynthia once she turns 18.
To the extent the lower court concluded otherwise, either
directly by ordering appellant to pay a monthly sum or
indirectly by prohibiting the sale of the parties' residence
until Cynthia turns 22, we find error and reverse in part.
That is not to say appellant should prevail on his
contention that he not be required to pay support arrearages
accruing as of January, 1979.
Whether appellant who has been ordered by divorce
decree to pay an undivided sum monthly for the support of
two minor children may unilaterally reduce by one-half the
amount of such payments when the older child is emancipated
or reaches majority is a question of first impression for
this Court; not so for the courts of sister states.
Appellant refers this Court to Ditman v. Ditman (1956),
48 Wash.2d 373, 293 P.2d 759, as persuasive authority.
There, the Washington Supreme Court upheld a trial court's
construction of a similar support provision as providing a
severable award for three children, thus permitting the
noncustodial parent to automatically pro rate and reduce
support payments when a child's dependency has "ceased by
reason of death, emancipation by marriage, attainment of
majority, [or] service in the Armed Forces of the United
States. . ." Ditman, 293 P.2d at 760. By respondent, this
Court is urged to follow Taylor v. Taylor (1961), 147 Colo.
140, 362 P.2d 1027, 1029, wherein the Colorado court states:
"When a divorce decree directs the father
to pay a specified amount periodically for
the joint benefit of more than one minor
child, the emancipation of one of such
children does not automatically affect the
liability of the father for the full sum
prescribed by the order. Rather it becomes
the burden of the father, if he so desires,
to make such showing as would entitle him
to be relieved of all or a part of such
obligation."
Review of the case law reveals that Taylor represents
the rule adopted in the vast majority of jurisdictions, see
Becker v. Becker (1978 Md.), 387 A.2d 317, and cases cited
therein, and for good reason:
"'The reason for considering a single amount
to be paid periodically for the support of more
than one child as not subject to an automatic
pro rata reduction is two-fold. First, a child
support order is not based solely on the needs
of the minor children but takes into account
what the parent can afford to pay (citations
omitted). Consequently, a child support order
may not accurately reflect what the children
actually require but only what the parent can
reasonably be expected to pay. To allow an
automatic reduction of an undivided order
would be to ignore the realities of such a
situation. Second, to regard an undivided
child support order as equally divisible among
the children is to ignore the fact that the
requirements of the individual children may
vary widely, depending on the circumstances.
Cooper v. Matheny, [(1960), 220 Or. 390, 349
P.2d 812, 8131.' Delevett v. Delevett, [(1968),
156 Conn. 1, 238 A.2d 402, 4041." Becker, 387
A.2d at 320.
We approve the rationale set forth in Becker and adopt
the rule of Taylor. The District Court committed no error
in interpreting its decree to require continuation of the
entire monthly support payment until the youngest child
attains majority. Appellant is responsible for the arrearages
as calculated.
As to the question of error regarding the lower court's
failure to order interest on the child support arrearage,
respondent properly relies upon Fitzgerald v. Fitzgerald
(1980) Mont. , 618 P.2d 867, 37 St.Rep. 1350. There,
this Court reiterated that interest is automatically collectible
by the judgment creditor spouse on past due support payments,
absent contrary provision in a dissolution decree. Williams
v. Budke (1980), Mont. , 606 P.2d 515, 37 St.Rep.
228. The judgment of the lower court should be appropriately
modified.
Finally, the lower court's findings and conclusions of
law are inadequate regarding respondent's petition for
modification of child support; it is not apparent that the
standards of section 40-4-208(2)(b), MCA, were considered or
applied. See Bliss v. Bliss (1980), Mont. , 609
P.2d 1209, 37 St.Rep. 708. The District Court is directed
to make appropriate findings and conclusions upon remand.
Property Division.
This is the first time the District Court has attempted
to apportion the parties' marital estate. In 1971, only
personal property was divided, and that was accomplished by
party agreement. Accordingly, the case law developed under
the UMDA constitutes valid precedent for the case at bar.
Morse v. Morse (1977), 174 Mont. 541, 571 P.2d 1147.
The only asset subject to distribution is the residence
located at 1208 South Bozeman Avenue, Bozeman, Montana.
Laszlo Torma argues that, by delaying sale of the parties'
residence until after Cynthia turned 22 years of age, the
District Court is forcing him to continue child support
beyond majority. As stated above, such a provision cannot
be justified unless there is an express agreement or decree
provision providing for support of children into their adult
lives. Chrestensen, supra. In this case, the four year
prohibition on the sale of the house amounts to an abuse of
discretion.
As to Sandra's claim that it is inequitable to equally
divide the net proceeds upon sale of the house, the following
facts are pertinent. The District Court found that the
parties purchased the home in February 1966 for $20,700.00
and that Sandra made $750.00 of the $1,000.00 downpayment on
the property. From February 1966 until early 1971 the
parties resided in the house. Sandra cared for the children
and the house. Laszlo worked outside the home, and made
occasional improvements to the house. Although the 1971
divorce decree did not specify who was responsible for
continued house payments, provision was made to allow Sandra
and the children to remain in possession of the house until
further court order or agreement of the parties. From June,
1971, until the time of hearing, the District Court found
that Sandra made all of the payments on the mortgage, taxes,
insurance and assessments on the house, the sum of those
payments amounting to over $23,000.00. Further, the court
found that the value of the house had appreciated over the
years such that at the time of hearing its worth was estimated
at $55,000.00. According to stipulation the balance remaining
on the mortgage was $10,300.00 as of the date of hearing.
The parties also stipulated that for the three years preceding
the hearing Laszlo's income ranged from $18,072.00 in 1978
to $22,478.00 in 1980; Sandra's earnings were $2,994,00 in
1978, $4,076.00 in 1979 and $1,993.00 in 1980.
As a general rule the District Court is afforded much
discretion in resolving property divisions, and its judgment
will not be altered unless a clear abuse of discretion is
shown. Zell v. Zell (1977), 174 Mont. 216, 570 P.2d 33.
"The criteria for reviewing the district court's discretion
is: Did the district court in the exercise of its discretion
act arbitrarily without employment of conscientious judgment,
or exceed the bounds of reason in view of all the circumstances?"
Zell, 174 Mont. at 220, 700 P.2d at 35.
Here, it is not at all evident, contrary to the statement
in the memorandum accompanying the lower court's findings of
fact and conclusions of law, that "the efforts [of the
parties] have been equal in the retaining and maintaining of
this only and valuable asset of the marriage." In a situation
very similar to this case, this Court recognized that equality
and equity are not synonymous when the equity of the noncustodial
parent is enhanced solely through the efforts of the custodial
parent. Tefft v. Tefft (1981), Mont. , 628 P.2d
1094, 38 St.Rep. 837. Not only is it essential to look at
the relative contributions of the parties over the years in
acquiring and retaining marital assets, it is imperative to
assess the relative ability of the parties to acquire property
in the future. Smith v. Smith (1981), Mont . , 622
P.2d 1022, 38 St.Rep. 146; Tefft, supra. While an equal
division of net proceeds may appear to be fair, the practical
result of such a division is the party who contributed to
maintain and enhance the equity in the house since the
divorce receives little benefit from its appreciation. As
this Court noted in Lawrence v. Harvey (1980), Mon t .
, 607 P.2d 551, 37 St-Rep. 370, a property division
should at least reflect the relative contributions of the
p a r t i e s , as w e l l a s e n t i t l e e a c h t o a p r o p o r t i o n a t e s h a r e of
t h e a p p r e c i a t i o n i n p r o p e r t y v a l u e s i n t h e wake of d i v o r c e .
The p r o p e r t y d i v i s i o n below i s hereby v a c a t e d , and upon
remand, t h e D i s t r i c t C o u r t i s d i r e c t e d t o a p p l y t h e f a c t o r s
s e t f o r t h i n s e c t i o n 40-4-202, MCA, i n accordance with t h e
l a n g u a g e of t h i s o p i n i o n .
S i n c e we a r e remanding t h e t r i a l c o u r t may c o n s i d e r t h e
s u b j e c t of a t t o r n e y ' s f e e s a n e
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