No. 8 5 - 5 2 6
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
STATE OF MONTANA, DEPARTMENT OF
REVENUE,
Plaintiff and Respondent,
TONY NEAL HUBBARD,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable James B. Wheelis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Datsopoulos, MacDonald & Lind; David B. Cotner,
Missoula, Montana
For Respondent:
John M. McRae, Dept. of Revenue-Child Support Division,
Missoula, Montana
John C. Koch, Dept. of Revenue-Child Support, Great
Falls, Montana
Submitted on Briefs: April 4, 1 9 8 6
Decided: June 19, 1986
Filed: JUN 19 1988
**&L Clerk
8
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
The Department of Revenue (Department) is seeking to
recoup funds paid by the State to support appellant's two
children. The action was originally brought by the Depart-
ment pursuant §§ 40-5-221 and 53-4-248, MCA, in the Fourth
Judicial District, Missoula County. The case is before us on
appeal from the District Court's order granting the Depart-
ment's motion for summary judgment.
We affirm.
Appellant's arguments raise the following issues:
1. Whether the prior dissolution and custody decrees
relieved appellant of his child support obligation.
2. Whether the State is barred from recoupment by
laches or waiver.
3. Whether the State is precluded from recoupment
because it extended benefits without obtaining the ex-wife's
cooperation.
4. Whether the State is barred from seeking an ongoing
child support order by the limitations period in
5 40-4-208 (2) (a), MCA.
Appellant also raises an issue of collateral estoppel.
Our holding on the first issues makes consideration of this
issue unnecessary.
Appellant and his ex-wife were married and parented two
children. Their marriage, however, was dissolved by the
Missoula County District Court in April 1976. The dissolu-
tion decree contains the following reservation of issues:
That the court shall decide the determi-
nation of permanent custody of the
children, support and visitation of the
minor children, support and maintenance
of petitioner, equitable determination
of property rights, and financing
arrangements including attorney's fees
and costs, at a later date.
The issue of custody was decided after hearing in an order
issued in October 1977. A separate visitation order was
issued in December 1977. None of the other issues reserved
in the dissolution decree are referred to in the orders.
The ex-wife applied for and received AFDC assistance
for the two children in 1975 and 1976 and 1980 through 1985.
She received $1,628 in 1975 and 1976, $6,650 between August
1980 and June 1984, and $1,317 between July 1984 and April
1985. In the meantime appellant's earnings as reported on
his tax returns have been as follows: 1976--$11,046;
1977--$14,256; 1978--$20,769; 1979--unknown; 1980--$25,535;
1981--$27,008; 1982--$27,145; and 1983--$30,604.
In July 1984, the Department brought this action pursu-
ant to §§ 53-4-248 and 40-5-221, MCA, to recover the assis-
tance paid since 1980. The Department did not seek repayment
of the aid paid in 1975 and 1976 because that aid was prior
to the dissolution decree. The Department also requested the
District Court to determine and order an ongoing support
obligation for appellant. Both parties moved for summary
judgment. The important facts were stipulated to. The
District Court granted the Department's motion holding that
appellant was obligated to reimburse the State and that
ongoing support payments by appellant could now be ordered.
The District Court granted the motion for summary judgment
and entered judgment against appellant for the amount of
$7,967. In its opinion, the District Court held that the
Department could seek an ongoing support order but did not
set the amount. This appeal ensued.
I
Appellant's primary argument centers on the fact that
the District Court's prior dissolution and custody decree do
not set support payments. He points to §§ 53-4-248 and
40-5-221, MCA, which Limit the amount of assistance the State
can recover to child support payments provided for in a prior
court decree or order. He then argues that since the prior
decrees did not set child support, his support obligation by
the decrees was zero and the State cannot recover anything
from him. We disagree.
The dissolution decree does not set specific support
payments, but does refer to child support in a provision that
reserves the issue for a later date. However, the subsequent
orders make no mention of child support. Appellant argues
that this absence of a child support provision means the
court relieved him of his support obligation. We considered
a similar argument in Murphy v. Murphy (1958), 134 Mont. 594,
335 P.2d 296. In Murphy, 335 P.2d at 297, we held that a
custody decree that was silent on child support did not
relieve a father of his legal and moral obligation to support
his children. Appellant has attempted to distinguish Murphy
from the instant case. The distinction is, appellant argues,
that in Murphy evidence on the support issue was not present-
ed to the court, whereas here the support issue was presented
to the court. We have reviewed Murphy and cannot find this
distinction. The opinion in Murphy shows that the support
issue was brought to the court's attention prior to its
issuance of the disputed decree. Murphy, 335 P.2d at 297.
As such, Murphy is directly applicable. We hold that the
appellant's legal and moral child support obligation was
neither relieved nor determined by the prior dissolution and
child custody decrees. Therefore, appellant is obligated
under §§ 53-4-248 and 40-5-221, MCA, to repay the State for
assistance it has paid in support of the children.
I1
Appellant then argues that the State is precluded from
the recoupment by the equitable doctrines of laches and
waiver. These arguments also fail.
In Fitzgerald v. Fitzgerald (Mont. 1980), 618 P.2d 867,
869, 37 St.Rep. 1350, 1353, we held that a husband "is not
relieved of his past child support obligation by the doctrine
of laches . . ." Appellant argues that Fitzgerald is not
applicable because that case involved court ordered child
support, whereas the case at bar involves an obligation that
was not court ordered. The distinction is illusory.
Whether or not a child support obligation is court
ordered is irrelevant to the existence of the obligation.
Child support is a social and moral obligation imposed by law
without court action. See State ex rel. Lay v. District
Court (1948), 122 Mont. 61, 198 P.2d 761, 767, cited with
approval in Woolverton v. Woolverton (1976), 169 Mont. 490,
549 P. 2d 458; see also In Re the Marriage of Hickey (Mont.
1984), 689 P.2d 1222, 41 St.Rep. 1931. Whether or not court
ordered, appellant here has an obligation of child support.
By the rule in Fitzqerald, that obligation has not been
relieved by laches.
In addition to laches appellant makes the related
argument of waiver. Waiver requires a showing of intent to
relinquish a right. See Mundt v. Mallon (1937), 106 Mont.
242, 248, 76 P.2d 326, 328; see also Farmers Elevator Co. of
Reserve v. Anderson (1976), 170 Mont. 175, 180, 552 P.2d 63,
65. Appellant argues that an intent to relinquish was exhib-
ited by failure to pursue support from appellant after re-
peated requests from the county. We can see no intent to
relinquish rights in this inaction. The Department filed the
action within the applicable statute of limitations. See
$ 27-2-211 (4), MCA. We hold that the State has not waived
its right to recoup assistance.
I11
The next argument raised by appellant against the State
recoupment concerns a statutory and regulatory requirement
that an applicant for AFDC assistance cooperate with the
State in obtaining child support. See $ 40-5-204, MCA, and
ARM $ 46-10.314. Appellant claims tha.t the State did not
obtain the ex-wife's cooperation and therefore is not enti-
tled to recoupment. The argument is without merit. First of
all, the record is clear that the ex-wife is cooperating with
the State. Secondly, the ex-wife's cooperation is irrelevant
to appellant's obligation to his children, which remains
whether or not the ex-wife cooperates.
IV
The final issue we will discuss concerns the District
Court's conclusion that the provision in the dissolution
decree that reserved the issue of child support is modifiable
upon a showing of changed circumstances so substantial and
continuing as to make the terms unconscionable. This conclu-
sion is based on § 40-4-208, MCA, which allows for modifica-
tion of support provisions. Appellant claims the dissolution
decree is no longer subject to modification because of the
limitations period in $ 40-4-208 (2) (a), MCA, which provides:
(2)(a) Whenever the decree proposed for
modification does not contain provisions
relating to maintenance or support,
modification under subsection (1) may
only be made within 2 years of the date
of the decree.
The Department also challenges the District Court's
modification conclusion. The Department believes § 40-4-208,
MCA, is not applicable to this action because it is seeking
to establish, rather than modify, an ongoing support order.
We agree with the Department.
The child support issue cannot now be modified because
it was never determined. Child support was, however, re-
served. As such, the Department is only attempting to get
the District Court to determine an issue reserved in the
dissolution decree. Therefore, 5 40-4-208, MCA, including
the limitations period in S 40-4-208(2) (a), MCA, is not
applicable. The error of the District Court in suggesting
the application of the modification statute, however, is
harmless because the opinion leaves the Department with the
option of seeking the establishment of an ongoing child
support order.
The distinction between modification and establishment
is important because of the burden of proof the Department
would have to bear if its action was to modify an order.
Modifications of support orders require a showing of changed
circumstances that render the original terms unconscionable.
Section 40-4-208 (2)(b) (i), MCA. To establish support, on the
other hand, only requires a showing of the amount necessary
to support the child. Section 40-4-204, MCA. Thus, the
burden of proof for modification is more difficult than for
establishment. Since the Department is seeking to establish
rather than modify support, it need not show the
unconscionability of the original terms.
The order of the District Court granting summary judg-
ment in favor of the Department is affirmed. We direct that
future action by the Department to obtain an ongoing support
order be considered an action to establish rather than modify
a support decree.
4
A r
Ch'ief Justice
We concur: