In Re the Marriage of Cook

No. 85-333
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986

IN RE THE MARRIAGE OF
DIETA M. COOK,
Petitioner and Appellant,
and
JAMES D. COOK,
Respondent and Respondent.

APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John S. Henson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:
Tipp, Hoven, Skjelset & Frizzell; Richard R. Buley,
Missoula, Montana

For Respondent:
Mark S. Connell, Missoula, Montana
For Minor Children:
J. Howard Toole, Missoula, Montana

Submitted on Briefs: May 9, 1986
Decided: September 23, 1986

Filed:

7% u
Clerk
P
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.

Appellant, Dieta Cook, appeals the order of the Missoula
County District Court modifying its earlier custody and
support decree transferring custody to James and ending his
support obligation.
We affirm.
Dieta raises the following issues on appeal:
1. Whether the District Court properly invoked
jurisdiction in this matter?
2. Whether the District Court's findings regarding
serious endangerment are supported by substantial credible
evidence?
3. Whether the District Court's findings regarding
child support are supported by the record?
The parties were divorced by decree of dissolution on
January 10, 1980. Dieta was awarded custody of the parties'
two minor children, Tom and Martin .
(Mardy) James was
granted visitation rights and ordered to pay $250.00 per
month per child for support. The decree ordered that Dieta
not change the children's residence from Montana without
first obtaining the permission of the court.
In May of 1980, Dieta removed the children to Utah
without obtaining the court's permission. Several additional
court proceedings took place in the case over the next few
years regarding visitation and financial requirements set
forth in the decree. The children visited James during the
summers of 1980, 1981, 1982 and 1983.
Beginning in the summer of 1981, the children requested
they be allowed to remain with their father on a permanent
basis. On July 11, 1983, James filed a motion for change of
custody. An order to show cause was issued on July 13, 1983,
setting hearing upon the motion for August 12, 1983. The
hearing was vacated.
The children remained with James pending a new hearing
date. Before a hearing could be held, Dieta appeared in
Missoula on December 15, 1983, and attempted to
surreptitiously remove the children. She failed, and on
December 16, 1983, James obtained an order restraining Dieta
from removing the children from Missoula. Before the order
was served upon Dieta, she unsuccessfully attempted to remove
Tom from school, and successfully abducted Mardy by telling
him she would drive him to school. Later that day, Dieta
telephoned a Missoula County Deputy Attorney and was told of
the court's order restraining her from removing the children
from Missoula. Dieta took Mardy to Utah, and then to Austria
for several weeks.
On January 30, 1984, the district judge issued an order
granting James temporary custody of both children, and
ordering Dieta to produce Mardy for a hearing before the
court on February 27, 1984. A second such order was issued
on February 15, 1984. At the hearing, the court reaffirmed
its earlier order awarding temporary custody of the children
to James, but allowed Mardy to remain in Utah until the court
was able to more fully consider the merits of the case at a
subsequent hearing. The court also appointed an attorney to
represent the children, ordered Dieta to allow James to visit
Mardy by telephone, and set further hearing for April 14,
1984. Due to the court's full docket, the case was not heard
until June 5, 1984, and January 2, 3, 4, 7 and 10, 1985.
 On March 29, 1984, a hearing was held in Utah by the
Sevier County District Court on a custody motion filed by
Dieta. That court concluded that the Montana court had
continuing jurisdiction over the controversy; that the
Montana court was the more convenient forum to litigate the
issue; and that the Utah court was the less convenient forum.
The Utah court declined to accept jurisdiction of the case.
On January 23, 1985, following the six-day custody
hearing in Missoula, Judge Henson issued a judgment in which
he found that the Missoula court properly had jurisdiction to
hear the case, and granted James1 motion for change in
custody.
On March 5, 1985, the court held a hearing concerning
the child support owed to Dieta by James. The court
concluded that, based upon an oral agreement between the
parties, Dieta was estopped from enforcing the support
provisions as contained in the decree. She was limited to
the amount of support orally agreed to by the parties from
June of 1980, until July of 1983. From July of 1983, James
had physical custody of one or both children and was paying
all expenses associated with the support of the child or
children in his custody. Therefore, James was relieved of
his obligation to pay child support after July of 1983.
Dieta appeals the orders of the District Court
concerning jurisdiction, custody, and support.
The first issue raised by Dieta is whether the District
Court properly exercised jurisdiction in this case. Dieta
argues that the Montana court should have declined
jurisdiction because the Utah court was the children's home
state and the more convenient forum. We do not agree.
 Section 40-4-211, MCA, lists four distinct grounds for
the exercise of jurisdiction by a Montana court. In this
case, two of the grounds apply. That section states:
(1) A court of this state competent to decide
child custody matters has jurisdiction to make a
child custody determination by initial or
modification decree if:

(bj it is in the best interest of the child that a
court of this state assume jurisdiction because:
(i) the child and his parents or the child and at
least one contestant have a significant connection
with this state; and
(ii) there is available in this state substantial
evidence concerning the child's present or future
care, protection, tra.ining, and personal
relationships; or

(d) (i) no other state has jurisdiction under
prerequisites substantially in accordance with
subsections (1)(a), (1)(b), or (1)(c) of this
section or another state has declined to exercise
jurisdiction on the ground that this state is the
more appropriate forum to determine custody of the
child; and
(ii) it is in his best interest that the court
assume jurisdiction.
The Montana court properly exercised jurisdiction under
s 40-4-211 (1)(b), MCA. James and the children had a
"significant connection" with Montana, and there was
"substantial evidence" available locally which was relevant
to the custody issue. Both the parties and the children
lived in Montana for many years. The Montana court dissolved
the marriage, awarded custody to Dieta, and handled several
post-decree motions. Further, James and. the children resided
in Missoula at the time the motion to modify custody was
made. Both children had numerous friends, relatives and
teachers in the Missoula area able to testify. Three local
psychologists tested the parties and the children and
testified at the hearing. In addition, a local attorney was
appointed to represent the children. The District Court
properly concluded that it was in the best interests of the
children that the Montana court exercise jurisdiction over
this custody dispute.
Jurisdiction was properly invoked under 5
40-4-211 (1)(d), MCA, as well. On March 29, 1984, the Utah
court declined to accept jurisdiction in this matter
deferring to the Montana court which it expressly found to be
the more convenient forum. Thus, the Montana court had
jurisdiction under 5 40-4-211 (1)(d), MCA.
Dieta's argument that the District Court should have
declined jurisdiction because the Utah court was the more
convenient forum is not persuasive. According to 5 40-7-108,
MCA :
(1) A court which has jurisdiction under this
cha~ter to make an initial or modification decree
L

may decline to exercise its jurisdiction any time
before makins a decree if it finds that it is an
inconvenient -forum to make a custody determination
under the circumstances of the case and that a
court of another state is a more appropriate forum.
(Emphasis added.)
The decision to decline jurisdiction on inconvenient forum
grounds is purely discretionary with the District Court. The
District Court did not abuse that discretion in accepting
jurisdiction. Therefore, we hold that the District Court had
jurisdiction to hear this case.
Dieta's second issue is whether the District Court's
findings regarding serious endangerment are supported by
substantial credible evidence. We hold that the District
Court's order is supported by substantial credible evidence.
In a detailed and thorough opinion, the District Court
concluded that a change occurred in the children's
circumstances making a change of custody necessary to serve
the best interests of the children. Tom was 14 years old at
the time of the hearing and desired the modification; the
present environment of the children endangered seriously
their mental and emotional health; and the harm likely to be
caused by a change of environment was outweighed by its
advantages to them.
The District Court's conclusions are supported by six
pages of findings. The children requested they be allowed to
remain with Tom. Dieta removed Mardy to Utah despite her
knowledge of a court order restraining her from doing so.
The relationship among the children, their father, and
stepmother is extremely close and loving. Dieta impaired,
frustrated, and attempted to stifle the children's
relationship with their father, and interfered with the
children's communication with each other while they were
separated. She monitored and tape-recorded telephone calls
to and from Tom, Mardy and James, delayed or intercepted
letters and photographs sent through the mail, and
discouraged the children's desire to spend time with James.
She threatened to sell the children's toys and move to
another country and never see them again should custody be
changed at their request.
In a custody modification appeal, this Court will not
disturb a District Court's findings where they are supported
by substantial credible evidence unless there is a clear
preponderance of evidence against those findings. Reinoehl
v. Perry (Mont. 1984), 691 P.2d 1384, 41 St.Rep. 2269. In re
Marriage of Bolton (Mont. 1984), 690 P.2d 401, 41 St.Rep.
1698. The District Court's decision to modify custody is
clearly supported by substantial credible evidence and we
will not disturb that decision on appea.1.
Dieta's final issue is whether the District Court's
findings regarding child support are supported by the record.
We hold that they are.
The parties were divorced on January 10, 1980. James
was ordered to pay $250.00 per month per child in support.
The decree declared that the amount was set "in recognition
of the mutual desire of the parties to have the children
pursue a parochial education. " In May of 1980, Dieta moved
with the children to Utah in violation of the decree. James
learned that the children were no longer attending parochial
school. In June of 1980, the parties orally agreed to reduce
support to $200.000 per month per child for the months of
August through June, and $100.00 for July. The agreement was
reduced to writing, but James did not sign it because he
feared that would indicate his approval of Dieta's move to
Utah. The agreement also provided for a modified visitation
schedule. From and after June of 1980, the parties acted in
reliance upon their oral agreement.
In July of 1983, James filed his motion to modify
custody. From that date on either one or both of the
children were in his custody and James discontinued payment
of child support. The modification of custody was granted on
January 23, 1985. On February 14, 1985, James filed a motion
to determine the nature and extent, if any, of his support
obligation. On March 14, 1985, the District Court entered
its order and judgment.
The court found that James and. Dieta entered into a
binding agreement modifying support and visitation which both
parties adhered to. James relied upon the agreement to his
detriment in various financial dealings. The court held that
his motion for modification of custody "was essentially a
motion to eliminate the requirement that Respondent pay child
support to Petitioner," and James no longer owed support
after that date.
The court concluded that Dieta was estopped from
enforcing the support provisions of the decree from and after
June of 1980, the date the parties entered into their
agreement. Further, the changes in the children's residences
represented changed circumstances so substantial and
continuing as to make enforcement of James' original and
modified support obligation unconscionable. We agree.
The general rule is that when child support becomes due
under a dissolution decree it becomes a judgment debt similar
to any other judgment for money. Section 40-4-208, MCA; In
re Marriage of Carlson (Mont. 1984), 693 P.2d 496, 41 St.Rep.
2419; Williams v. Budke (1980), 186 Mont. 71, 606 P.2d 515.
However, a number of courts have recognized that under a
compulsion of circumstances the mother may not collect the
amount that has accrued in a judgment for support, where the
husband has made expenditures which constitute substantial
compliance with the spirit and intent of the decree. Headley
v. Headley (Ala. 1964), 172 So.2d 29; Steckler v. Steckler
(Mo. 1956), 293 S.W.2d 129; Chapman v. Chapman (Or. 1945),
161 P.2d 917; Mason v. Mason (Or. 1934), 34 P.2d 328. The
courts are generally reluctant to state any general rule as
to when an estoppel arises, but generally the equitable
principle arises when the mother has expressly or impliedly
consented to an arrangement other than the payment of the
judgment. State of Washington ex rel. Blakeslee v. Horton
(No. 85-639, Decided July 24, 1986), 43 St.Rep. 1321;
Headley v. Headley, 172 So.2d at 33. It is clear that in
applying the doctrine of equitable estoppel the courts are
guided by the principle that while the judgment for support
may be in another's name, the real beneficiaries of the
judgment are the children, not the person named in the
judgment. M v. M (Mo. 1958), 313 S.W.2d 209, 213.
With that in mind, we look to the facts of this case. First,
Dieta expressly consented to the payment of the judgment in a
manner different than that set out in the decree. Second,
James made the payments as required by the agreement, thus he
acted. within the spirit and intent of the decree. Finally,
we note that James has had the children since 1983 and that
to require payment of support now would harm the children by
taking money away from them rather than benefiting them.
Thus, we agree with the District Court that Dieta is estopped
from enforcing the support provisions of the decree from the
date the parties entered their agreement. The provision of 5
40-4-208, MCA, providing that a decree may be modifified by a
court as to maintenance or support only as to installments
accruing subsequent to the motion for modification, is
subject to the doctrine of equitable estoppel under the facts
of this case. Only in cases where equitable estoppel is
found by the trial court upon clear and compelling evidence
may this doctrine override the provisions of 5 40-4-208, MCA.
In addition, once James made his motion in July of 1983,
S 40-4-208, MCA, gave the court discretion to modify his
support obligation, subsequent to that date. One or both of
the children resided with him after that date and James paid
all the expenses associated with the support of the child or
children in his custody. The District Court did not abuse
its discretion in determining James' support obligation.
 T h e r e f o r e , w e a f f i r m t h e D i s t r i c t C o u r t i n all r e s p e c t s .

W e Concur:

Chief J u s t i c e
n

Justices
 Mr. Justice Fred J. Weber dissents as follows:

The majority opinion carefully reviewed the evidence
considered by the District Court in reaching its conclusion
that Dieta Cook was estopped from enforcing the support
provisions of the decree of dissolution. I agree that the
evidence supporting estoppel is compelling and would agree
with the conclusion of the court if the sufficiency of the
estoppel evidence were the only question before us. However,
I find other aspects have not been sufficiently considered in
the majority opinion.
The majority opinion effectively has disregarded the
provision of 5 40-4-208, MCA, which in pertinent part states:

(1)... a decree may be modified by a court as to
maintenance or support only as to installments
accruing subsequent to the motion for modification.
The above section is a part of the Uniform Marriage and
Divorce Act enacted by our legislature in 1975. Uniformity
of the Act among the several states was a primary objective
as stated at S 40-4-102, MCA:

This chapter shall be so applied and construed as
to effectuate its general purpose to make uniform
the law. . .among those states which enact it.
The essence of 5 40-4-208, MCA, is that a court may modify a
support decree only as to subsequently accruing installments.
On its face the statute appears to prohibit the action which
is being taken in the present case.
It might be argued that the decree in the present case
does not actually constitute a modification. I believe that
has been disposed of in cases interpreting the section.
Williams v. Budke (1980), 186 Mont. 71, 606 P.2d 515,
was a marriage dissolution case in which the decree required
the husband to pay $300 per month in child support. The
husband became seriously ill, had open heart surgery and was
rehospitalized. As of 1978 husband owed $14,872.55 in medi-
cal bills and had no real property, no savings account and
could not get medical or life insurance. Wife worked for a
flooring company and she and her three minor children lived
with her mother. At the show cause hearing the husband moved
for a modification of his child support obligation and the
District Court found him unable financially to pay $300 per
month. As to future installments, the award was reduced to a
total of $150, with subsequent increases in later years. The
District Court found the husband delinquent in accrued child
support payments in the amount of $9,080 and gave the husband
credit for $3,600 received by the wife upon a prior execution
and $970 for payments made directly to the minor children.
The District Court then established a deferred payment sched-
ule for the husband's delinquent support obligation providing
that the husband was to pay $150 per month to be credited
toward delinquent child support with the commencement delayed
for several years. This Court reversed the action of the
District Court in deferring the payment for delinquent child
support. This Court acknowledged the effort of the District
Court to consider the financial condition of the husband and
stated:

We appreciate the effort of the District Court to
take cognizance of the financial condition of
husband in establishing the deferred schedule.
However, the result, as the court ordered it, is to
modify the judgment . . . as to the accrued child
support payments. This action of the District
Court is oppugnant to a controlling statute [citing
the above B 40-4-208 ( I ) ]...
There can be no doubt that the District Court
modified the judgment for accrued child support
payments, and modified it retroactively ...
 In Dahl v. Dahl (1978), Mont., 577 P.2d 1230, 1232,
35 St.Rep. 536, we pointed to the same statute
(formerly Section 48-330 (1), R.C.M. 1947) to the
effect that a divorce decree-cannot be modified to
cancel past due and unpaid child support. (Emphasis
supplied.)
Williams,
Notwithstanding the arguments which were made to the court
regarding the extreme health problems on the part of the
husband and his financial inability to pay, this Court con-
cluded that the statute was controlling so that the judgment
for accrued child support payments could not be modified
retroactively. This Court also reaffirmed the Dahl rule
which held that a divorce decree cannot be modified to cancel
past due and unpaid child support. The effect of the majori-
ty opinion in the present case is a cancellation of past due
and unpaid child support in direct contradiction to the
holdings in Dahl and Williams.
In a similar manner, in State Department of Revenue v.
Dawson (Mont. 1984), 674 P.2d 1091, 41 St.Rep. 46, this Court
considered the action of the District Court which had con-
cluded that the defendant was in arrears in the amount of
$6,689 and that the defendant was unable to make the support
payments and therefore concluded that it was appropriate to
restrain the State of Montana from levying upon the bank
account of the defendant. While the lower court had not in
fact modified the decree, it effectively neutralized it by
prohibiting the levy of a writ of execution. This Court
again affirmed and explained its position in Williams and
stated:

The principle that child support installments past
due and unpaid are not subject to modification is
an old one in Montana law, havinq been articulated
as early as Kelly v. ~ e l l y (1945), 117 Mont. 239,
157 P.2d 780. However, it was our decision in
 Williams v. Budke (Mont. 1980), 606 P.2d 515, 37
St.Rep. 228, that adopted the view that restric-
tions on the right to levy for accrued child sup-
port is an impermissible ietroactive modificatioh.
(Emphasis supplied.)
Dawson, 674 P.2d at 1093.
In response to the argument that the ruling was not in fact a
modification, the court stated:

However, the practical effect of the order was to
defer appellant's right to levy execution on ac-
crued child support payments. This constituted a
retroactive modification and was erroneous.
Dawson, 674 P.2d at 1093.
In addition, this Court reaffirmed its previously stated
position in Williams and again stated:

Moreover, in Dahl v. Dahl . . .
we pointed to
Section 40-4-208 (l), MCA, to the effect that a
divorce decree cannot be modified to cancel past
due and unpaid child support. (Emphasis supplied.)
Dawson, 674 P.2d at 1093.
In these two cases, we find the strong position of this
Court that a divorce decree cannot be modified to cancel
unpaid and past due child support and. that to even place a
restriction on the right to levy for such accrued support is
impermissible modification. The present case does not ad-
dress the clear position of these cases and a number of
others which have reinforced the statutory provision that a
modification may be made of a support order only as to future
rather than past due installments.
In State of Washington ex r e . Blakeslee v. Horton
(Mont. 1986), P.2d , 43 St.Rep. 1321, we for the
first time applied equitable principles to bar collection of
past due and unpaid child support installments. That was a
distinctive case in which the course of conduct on the part
of both mother and father had extended over a period of
fourteen years. Perhaps we can say that the unique circum-
stances in such a case justify the equitable position taken.
I have a real problem in attempting to apply the same ration-
ale to the present case. The legislative view of the power
of the district court and this Court is contained in S
40-4-208, MCA, where the legislature states that a court may
modify a decree as to support only as to installments accru-
ing subsequent to the motion. In the present case the major-
ity has responded to an equitable argument which should be
directed to the legislature. Certainly it may be reasonable
to suggest to the legislature that courts should be given
authority to modify support provisions on equitable theories
such as involved in the present case. However, I believe we
have gone beyond the function of this Court in making the
legislative modification ourselves.
In further support of the contention that child support
decrees cannot be modified as to installments accruing subse-
quent to the motion for modification are the Commissioners'
Notes to what has been adopted in Montana as § 40-4-208, MCA:

Subsection (a) makes each installment under an
order for periodic support or maintenance final and
non-modifiable when it falls due. The accrued
installments cannot be modified retroactively, and
future installments can be modified only as to
those falling due after a motion for modification
has been filed. The purpose of thus making each
installment final and non-modifiable when it be-
comes due is to give each past due installment the
status of a final judgment entitled to full faith
and credit in other states pursuant to the deci-
sions of the Supreme Court in Lynde v. Lynde, 21
S.Ct. 555, 181 U.S. 183, 45 L.Ed. 810 (1901);
Sistare v. Sistare, 30 S.Ct. 682, 218 U.S. 1, 54
L.Ed. 905, 28 LRANS 1068, 20 Ann.Cas. 261 (1910);
Barber v. Barber, 65 S.Ct. 137, 323 U.S. 77, 89
L.Ed. 82, 157 A.L.R. 168 (1944); and Griffin v.
Griffin, 66 S.Ct. 556, 327 U.S. 220, 90 L.Ed. 635
(1945).
Uniform Marriage and Divorce Act Commissioner's Notes, 5 316.
The Commissioners' Notes provide a simple statement of
the law. Many state courts have followed this statement of
the law and have steadfastly refused to consider retroactive
child support modification. See Ferry v. Ferry (Neb. 1978) ,
271 N.W.2d 450; Jahn v. Jahn (Ind. 1979), 385 N.E.2d 488;
Gomez v. Gomez (N.M. 1978), 587 P.2d 963; worthley v.
Worthley (Cal. 1955), 283 P.2d 19; Gamble v. Gamble (DOC.
1969), 258 A.2d 261; Robertson v. Cason ( ~ a .1967), 203 So.2d
743; Hatch v. Hatch (Ariz. 1976), 547 P.2d 1044; McAdams v.
Scullin (Ill. 1977), 368 N.E.2d 1036; In re Hart's ~arriage
(Colo. 1975), 533 P.2d 42. Oregon allowed a modification,
but did so under a different statute. See Emanuel v. Emanuel
(Or. 1978), 5 F.L.R. 2156.
I would reverse the District Court and remand for a
determination of the support accruing subsequent to the
filing of the motion, for which an award can be made as

Mr. Justice L. C. Gulbrandson:
I join in the foregoing dissent of Mr. Justice Weber.

Mr. Chief Justice J.A. Turnage:
I join in the foregoing dissent of Mr. Justice Weber.