No. 83-378
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
STATE OF MOIJTANA, Department
of Revenue,
Plaintiff and Appellant,
-vs-
CHARLES DAWSON,
Defendant and Respondent.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable Mark P. Sullivan, Judge presiding.
COUNSEL OF RF,CORD:
For Appellant:
John C. Koch argued, Great Falls, Montana
For Respondent:
Daniel Sweeney argued, Butte, Montana
Submitted: December 5, 1983
Decided: January 5, 1984
Filed: ~ f i i5'
l 1934
Clerk
Mr. J u s t i c e L.C. Gulbrandson d e l i v e r e d t h e Opinion of the
Court.
This appeal arises out of a temporary restraining
order i s s u e d by t h e D i s t r i c t C o u r t o f t h e Second J u d i c i a l
District, Silver Bow C o u n t y , restraining the State of
Montana, Department of Revenue, f r o m l e v y i n g upon t h e bank
account of C h a r l e s N e a l e Dawson. For the reasons stated
below, w e r e v e r s e t h e o r d e r of t h e D i s t r i c t Court.
The S t a t e o f Montana, Department of Revenue, brought
an action to enforce the child support provisions of a
decree of divorce entered in the District Court of the
S e c o n d J u d i c i a l D i s t r i c t , S i l v e r Bow C o u n t y , on May 7 , 1 9 7 3 ,
dissolving the marriage of Roberta J o Dawson and Charles
Neale Dawson, awarding custody of their minor child to
Roberta and ordering Charles to pay $70 per month child
support. The m a t t e r was h e a r d by Hon. J u d g e F r e e b o u r n and
on A p r i l 4 , 1979, he e n t e r e d f i n d i n g s of fact, conclusions
o f l a w and j u d g m e n t w h i c h p r o v i d e d :
FINDINGS OF FACT
" 1 . T h a t a d e c r e e o f d i v o r c e was f i l e d i n
t h e Second J u d i c i a l D i s t r i c t i n and f o r
t h e C o u n t y o f S i l v e r Bow i n May o f 1 9 7 3 ,
s t i p u l a t i n g seventy ($70.00) d o l l a r s per
month, c h i l d s u p p o r t .
"2. That t h e defendant is i n a r r e a r a g e s
i n t h e amount o f $ 6 , 6 8 9 . 0 0 .
"3. That defendant is unable to make
s u p p o r t payments.
CONCLUSION OF L W
A
"1. T h a t a d e c r e e o f d i v o r c e was f i l e d i n
t h e Second J u d i c i a l D i s t r i c t i n and f o r
t h e C o u n t y o f S i l v e r Bow i n May o f 1 9 7 3 ,
s t i p u l a t i n g seventy ($70.00) d o l l a r s p e r
month c h i l d s u p p o r t .
"2. T h a t t h e d e f e n d a n t i s i n a r r e a r a g e s
i n t h e amount o f $ 6 , 6 8 9 . 0 0 .
"3. T h a t d e f e n d a n t i s f i n a n c i a l l y u n a b l e
t o meet a n y p a y m e n t s f o r h i s s u p p o r t
order. U n t i l s u c h t i m e a s h e is a b l e t o
d o s o , no f u r t h e r a c t i o n w i l l b e t a k e n .
"LET JUDGMENT BE e n t e r e d accordingly i n
conformance with the Findings and
Conclusions.
JUDGMENT
"UPON SUBMISSION a n d f i l i n g o f the
f i n d i n g s o f f a c t and c o n c l u s i o n s o f l a w
i n t h e above e n t i t l e d m a t t e r , it is
hereby adjudged, d e c r e e d and o r d e r e d t h a t
CHARLES DAWSON, i s u n a b l e t o make c h i l d
s u p p o r t p a y m e n t s , u n t i l s u c h time n o
f u r t h e r a c t i o n w i l l be t a k e n . "
On March 25, 1983, the S t a t e was issued a writ of
e x e c u t i o n i n t h e amount o f $ 6 , 6 8 9 , t h e amount f o u n d by t h e
D i s t r i c t C o u r t on A p r i l 4, 1979, t o be t h e accrued child
support arrearages. On J u n e 7 , 1 9 8 3 , t h e S h e r i f f o f S i l v e r
Bow C o u n t y l e v i e d upon and r e t u r n e d $2,363.29 of a $4,500
bank a c c o u n t b e l o n g i n g t o Dawson a n d h i s new w i f e .
On J u n e , 24, 1983, Dawson filed an a f f i d a v i t and a
petition for temporary restraining order asking that the
S t a t e be restrained f r o m l e v y i n g o n h i s bank account. A
t e m p o r a r y r e s t r a i n i n g o r d e r and a n o r d e r t o show c a u s e was
issued by the District Court the same day. The money
obtained by the Sheriff's l e v y was held in trust by the
C l e r k of t h e D i s t r i c t C o u r t pending t h e h e a r i n g .
The h e a r i n g was h e l d on J u l y 2 2 , 1983. On J u l y 2 5 ,
1983, the District Court held that the State's writ of
e x e c u t i o n w a s v o i d and t h e t e m p o r a r y r e s t r a i n i n g o r d e r was
made permanent until a full and final hearing could be
conducted t o d e t e r m i n e what d e l i n q u e n c i e s , i f any, e x i s t e d .
(Order, July 25, 1983.) In addition, the Clerk of the
D i s t r i c t C o u r t was o r d e r e d t o r e t u r n t h e f u n d s t o Dawson.
On the same day, the State filed its notice of appeal and a
motion for stay of the order pending the appeal. The motion
for stay was denied.
Initially, appellant asserts that the District Court
erred in interpreting Judge Freebourn's April 4 , 1979
judgment as requiring additional findings before an
execution for accrued child support could be permitted.
The principle that child support installments past due
and unpaid are not subject to modification is an old one in
Montana law, having been articulated as early as Kelly v.
Kelly (1945), 117 Mont. 239, 157 P.2d 780. However, it was
our decision in Williams v. Budke (1980), 606 P.2d 515, 37
St.Rep. 228, that adopted the view that restrictions on the
right to levy for accrued child support is an impermissible
retroactive modification. In Williams, a former wife made a
motion to show cause why her former husband should not have
been adjudged guilty of contempt for failure to pay child
support in accordance with a marriage dissolution decree.
At the show cause hearing, the District Court denied the
motion, found the husband delinquent in accrued child
support payments and established a deferred payment schedule
for the husband's delinquent child support obligations. The
wife appealed, raising three issues, among them whether it
was error not to hold the delinquent child support payable
immediately and subject to enforcement by execution.
Williams, supra, 606 P.2d at 517. We held that the District
Court erred because the result of the deferred payment
schedule was a modification of the judgment previously
entered in the District Court as to the accrued child
support payments, a violation of Section 40-4-208(1), MCA,
which provides that, ". . . a decree may be modified by a
court as to maintenance or support only as to installments
accruing subsequent to the motion for modification."
Respondent argues that the District Court's order was
not a modification but, rather, a ruling in accordance with
an earlier court decision that additional findings would
have to be made that respondent was able to meet his child
support obligations before any action could be taken on the
arrearage owed. However, the practical effect of the order
was to defer appellant's right to levy execution on accrued
child support payments. This constituted a retroactive
modification and was erroneous. In Williams, supra, we
examined Webb v. Finger Contract Supply Co. (Tex. 1969), 447
S.W. 2d 906, 908 in determining that, ". . . 'modification'
has been defined as 'A change; an alteration which
introduces new elements into the details, or cancels some of
them, but leaves the purpose and effect of the subject
matter intact. ' " This was the effect of the District
Court's order of March 5, 1983. Moreover, in Dahl v. Dahl
(1978), 176 Mont. 307, 577 P.2d 1230, we pointed to Section
40-4-208(1), MCA, to the effect that a divorce decree cannot
be modified to cancel past due and unpaid child support.
We note here that, although the issue was not raised
before the District Court or on appeal, Judge Freebourn's
order of April 4, 1979, contained no monetary judgment. The
fact that appellant was in arrearages in the amount of
$6,689 was included in Judge Freebourn's findings of fact
and conclusions of law but not in the judgment. We point
this out to the State, so that in the future, appropriate
judgments will be entered prior to the issuance of a writ of
execution.
In addition, respondent has contended that Social
Security payments to the appellant should be used as an
offset in determining the amount respondent owes for
support. We have considered the argument but will not
decide it at this time as the issue was never presented to
the District Court for its consideration.
Finally, we note that the duty to reduce or modify
support and alimony payments remains on the spouse who is
either unsatisfied or unable to make the payments. Daniels
v. Daniels (1966), 147 Mont. 57, 409 P.2d 824.
We reverse the decision of the District Court and deny
respondent's request for costs and attorney fees.
/"
We concur:
"ddA8
Chief Jhstice -