No. 85-639
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
STATE OF WASHINGTON, ex rel.,
JEANNE A. BLAKESLEE,
Petitioner/Appellant,
VS.
RONALD ALSON HORTON, SR.,
Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Charles Luedke, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Harold Hanser, Yellowstone County Attorney,
Billings, Montana,
Terence M. Swift, Deputy County Attorney,
Billings, Montana,
For Respondent:
Stephens Law Firm; Robert L. Stephens, Jr.,
Billings, Montana.
Submitted on Briefs: April 30, 1986
Decided: July 24, 1986
P
&&LL a
*
-
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This is an appeal by the petitioner from an order of
the Yellowstone County District Court, the Honorable Charles
Luedke presiding, denying enforcement of a petition for child
support made under the Uniform Reciprocal Enforcement of
Support Act ("URESA") . We affirm.
On December 18, 1984, the petitiner/appellant, Jeanne
Blakeslee ("mother"), filed a petition for support under
URESA in the County Attorney's office in Clark County,
Washington. The mother was at that time a resident of Clark
County, Washington. The petition requested that respondent,
Ronald Horton ("father"), be ordered to pay current child
support in the amount of $50 per month and that an order be
entered granting the mother a judgment in the sum of $8,850
for support arrearages owed to her as of December 18, 1984.
The mother and father had been granted a divorce decree in
March of 1970 in Yellowstone County which ordered the father
to pay support in the amount of $50 per month to the mother
for the support of their minor child. The record is
undisputed that the father has never made any support
payments to the mother as specified in the divorce decree.
The mother's URESA petition was forwarded to the
Yellowstone County Attorney' s Office in January of 1985 for
enforcement. The District Court thereafter issued an order
to show cause to the father asking him to come before the
court and explain why he should not be required to pay the
child support the mother had requested in her petition. A
hearing on the matter was held, without a court reporter
present, and on November 27, 1985, Judge Luedke issued his
memorandum and order. In the order Judge Luedke determined
that the husband did not owe any current or past due child
support as requested by the mother in her petition. From
this ruling the mother has appealed.
The mother now presents the following issue for review
by this Court: Whether the order of the District Court which
excuses the father from paying the child support ordered in
the divorce decree is an abuse of the court's discretion and
endangers the welfare of the minor child of the parties by
denying the child its right of support?
It should also be noted that the father in his brief
suggests that Judge Luedke's above mentioned order may not be
a "final" judgment or order in this matter thereby making it
non-appealable under Rule 1 (a), M.R.App.Civ.P. We disagree.
After reviewing Judge Luedke's memorandum and order, it
appears to this Court that Judge Luedke made a final
determination of the mother's request for child support under
her URESA petition. Such a determination by Judge Luedke
constitutes an appealable order under Rule l(a).
In her brief, the mother strongly argues that the
District Court blatantly abused its discretion in refusing to
order the father to support his minor child. The mother
contends the court's decision totally ignores the welfare of
the child and its right to support. Furthermore, the mother
points out, the court's order is contradictory to existing
Montana law.
On the surface, the mother's argument appears to have
some merit, especially in light of the harsh result as
ordered by the District Court. However, when the court's
decision is considered in light of the circumstances
surrounding this case, the result seems to come into
perspective. In his order and memorandum Judge Luedke
recites in considerable detail the facts under which the
mother pursued her URESA petition and the reasons why he
believed her petition should be denied. We note we can find
little, if any, fault with Judge Luedke's decision in this
matter and we therefore adopt his well analyzed memorandum
and order and offer the same as the basis for this opinion.
This is an action brought under URESA against a
father to enforce child support due under a
March 27th, 1970, divorce Decree providing for
payments of $50.00 per month commencing April,
1970, payable through the office of the Clerk
of District Court. As of the date of the
petition, which was filed in December, 1984, a
total arrearage of $8,850.00 had accrued, no
payment whatever having been made at any time.
The father defends against enforcement through
this proceeding by testifying that after the
divorce, the mother took the position that if
the father would stay out of her life and the
child's life, they would stay out of his. The
father has proceeded on this basis throughout
the ensuing years. He has never made any
application for modification of the Decree to
eliminate the child support provision nor has
he attempted to enforce the visitation
privileges accorded him in the divorce Decree.
There is no evidence from or on behalf of the
mother with respect to such alleged
understanding, either denying or admitting it.
However, the mother has never before sought
payment. At one point, when asked to sign a
satisfaction of child support to permit the
father to purchase a home, she first agreed,
according the father, and then later changed
her mind and refused. However, she took no
affirmative action otherwise. The mother is
not receiving public assistance, but has made a
non-assistance assignment pursuant to the laws
of the State of Washington for the purposes of
this action. All indications are that she is
pursuing her petition on her own initiative,
although she is utilizing the prosecuting
attorneys in Washington and Montana for that
purpose.
The father has never seen the child involved,
nor known of its whereabouts or the whereabouts
of the mother until this proceeding was
instituted. Although child support payments
were to be made through the Clerk of Court, no
record thereof was ever set up, meaning that
the father never made a payment and the mother
never made any inquiry of that office
concerning any payment.
The totality of the circumstances appearing--
and the evidence is admittedly scanty from the
standpoint of the mother--indicates that the
parties did arrive at a mutual arrangement
where each stayed away from the other, and that
this was a satisfactory status to both parties
until something prompted the mother to take
advantage of the legal fact that child support
in a Decree is a judgment which is constantly
accruing on a monthly basis and is not subject
to retroactive change.
Consequently, she can turn the clock backwards
on the understanding which was entered into and
became consummated by mutual observance over
the years, and create a financial windfall
situation--one that can be pursued through
County prosecuting offices by filling out and
signing forms in a local office without any
personal expense to her.
The father and the child, on the other hand,
cannot turn the clock backwards to recapture
the association which they should have had and
could have had, except for the agreement which
was made and has been followed.
The law is clear that the arrearage in child
support payments cannot be modified by the
Court upon any retroactive basis. [ § 40-4-208,
MCA. I
The law is also clear that the child support
and child visitation are separate incidence,
neither being dependent nor conditioned upon
the other. [ $ 40-5-124, MCA; see, State Ex
Rel. Dewyea v. Knapp (Mont. 1984), 674 P.2d
1104, 41 St.Rep. 143.1
These legal principles, however valid they may
be as a general rule, are rendered impotent
when the parties mutually agree that they be
ignored and also carry out such agreement in
actual fact for fourteen years, as has been
done here.
The arrearage for child support may remain
technically inviolable and the theoretical
right to visitation may continue on the same
basis, but the enforceability of each in this
case cannot be automatically implemented
without any recognition being given to the
reality of the past acts and omissions
chargeable to the parties. Equity
cannot allow the mother to articipate in
nullification - - purposeof 'e - - in f a x
of the - t law -
-
h
and, - - - - time, allow her to claim the
- at the same
benefit - - - theory, s i m p ~ b ~ a u s e
of it in there
- - meter running which can total a dollar
is a
- -in child support, but nothing - total -
loss to the
loss -of a father-son association.
- - (Emphasis
added. )
The mother has been satisfied with silence for
fourteen years and received what must have been
construed by her to be a benefit for both
herself and the child, i.e., a complete lack of
contact with the father. There is no assertion
made or even suggested by the mother that the
present request is founded upon any actual need
of the child which has existed, but has not
been satisfied over the years, or which has now
arisen and could serve to validate her action
in pursuing payment at this belated point.
If evidence exists which explains, from the
standpoint of the mother and child, why the
mother was content to consider the lack of any
contact with the father as anything other than
an a.cceptable trade-off against receipt of
child support, it has not been made known to
the Court. Upon the basis of the record now
before the Court, a concern does arise as to
whether the Court is being properly used, and
for that reason the evidence before the Court
does demonstrate that the respondent has shown
ample cause why the Court should not order at
this time and in this cause what has been
requested by the petitioner.
IT IS SO ORDERED.
We find Judge Luedke' s memorandum and order speaks for
itself. Although legally the mother may have been correct in
her claim for child support, equity demands that her claim
must fail. This Court has long adhered to such principles of
equity. We have noted that there are circumstances where a
litigant may be remediless ". . . unless equity could afford
him relief." Link v. Haire (1928), 82 Mont. 406, 420, 267 P.
952, 956. Further, we have stated that " [w]hen a District
Court sits as a court of equity, it is empowered to determine
the questions involved in the case and to do complete
justice. " Sawyer-Adecor International, Inc. v. ~nglin
(1982), 198 Mont. 440, 455, 646 P.2d 1194, 1202. See also,
Rase v. Castle Mountain Ranch, Inc. (Mont. 19811, 631 P.2d
In conclusion, we note that the instant case - -
does not
reverse or modify our previous case law which holds that each
installment under an order for periodic child support is
final and non-modifiable when it falls due. We only hold
that Judge Luedke's memorandum and order constitutes a sound
exercise of the District Court's discretion and also is a
correct application of accepted principles of equity in this
state.
The order of the District Court is affirmed.
We concur:
A
_I
,
/-
/
/'