No. 8 7 - 1 0 9
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
IN RE THE MARRIAGE OF
FRANK L. NEISS,
Petitioner and Appellant,
and
DARLENE M. NEISS,
Respondent and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Robert Holmstrom, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Michael M. Morse, Billings, Montana
For Respondent:
Whalen & Whalen; Timothy J. Whalen, Billings, Montana
Submitted on Briefs: July 14, 1 9 8 7
Decided: October 6, 1 9 8 7
Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Frank L. Neiss appeals an order of the Thirteenth
Judicial District, Yellowstone County, finding Frank and
Darlene Neiss' agreement to modify child support in viola.tion
of public policy and thereby null and void. We affirm.
Appellant Frank Neiss raises one issue for our review:
Did the District Court abuse its discretion when it
declared the parties' agreement for modification of child
support to be null and void?
Frank and Darlene Neiss were married in Cody, Wyoming,
on August 30, 1968. Two children were born of the marriage:
Patrick on July 1, 1971 and Camile on August 31, 1973. Frank
subsequently petitioned for divorce. On January 15, 1976 a
decree of dissolution was entered which provided that custody
of the children be awarded to Darlene. Frank Neiss was
ordered to pay $150 in child support per month for each child
and $200 per month for maintenance. On January 3, 1978, the
original decree was modified and Frank was ordered to pay
$125 per month for each child and $100 per month in mainte-
nance. Frank's obligation of $100 per month in maintenance
expired in January, 1986.
On August 16, 1984, Frank and Darlene Neiss entered an
agreement entitled "Agreement for Modification of Entry on
Decree" (hereinafter agreement to modify). Roth parties were
represented by counsel. The agreement to modify required
that Frank make quarterly installment payments totaling
$12,000 on or before November 1, 1985. In return Darlene
would release Frank from further obligations of child support
and maintenance.
At trial, Frank Neiss testified that he faced great
financial problems due to poor crop prices and farm drought.
Neiss stated that he had difficulty finding non-farm work and
that he was unable to meet his child support obligations.
When the parties entered the agreement to modify, Frank
was 53,500 in arrears in child support and maintenance pay-
ments. Darlene testified that the agreement, if enforced,
would release Frank of $9,000 in future child support.
Darlene also testified that she entered the agreement because
Frank was behind in his payments and that she had experienced
difficulty collecting payments from Frank.
On May 9, 1986, Darlene petitioned the District Court
to declare the entire agreement null and void. Darlene
alleged that Frank was thirty days late on his final payment
of $3,500. Pursuant to the agreement, Darlene exercised her
right to declare the agreement null and void. The District
Court found the agreement null and void as a violation of
public policy. The court did not address Darlene's claim
that Frank violated the terms of the agreement.
In determining whether the agreement to modify is
valid, the District Court is governed by S 40-4-208, MCA,
which provides:
Modification and termination - provi-
of
sions - maintenance, support and
for
property disposition. (1) Except as
otherwise provided in 40-4-201(6), a
decree may be modified by a court as to
maintenance or support only as to in-
stallments accruing subsequent to actual
notice to the parties of motion for
modification.
(2) (b) Whenever the decree proposed for
modification contains provisions relat-
ing to maintenance or support, modifica-
tion under subsection (1) may only be
made :
(i) upon a showing of changed circum-
stances so substantial and continuing -
as
to - k e t h e terms unconscionable; or
- ma -
(ii) upon written consent - - par-
of the
ties. [Emphasis added.]
Appellant Frank Neiss contends the District Court
abused its discretion when it concluded the agreement to
modify was null and void as a violation of public policy.
Frank argues that both parties were represented by counsel
and relied on the terms of the agreement. Frank also con-
tends § 40-4-208(2) (h) (ii), MCA, permits parents to modify
child support decrees.
When determining the amount of child support to be paid
by a noncustodial parent, the district court must act in the
best interests of the child. Sections 40-4-201 through
40-4-225, MCA. It follows that the court is not bound by the
parties' agreements where the welfare of the children are
concerned. Jensen v. Jensen (Mont. 1981), 629 P.2d 765, 769,
38 St.Rep. 927, 931. It is the children, not the parents,
who are beneficiaries of child support decrees. In re Mar-
riage of Cook (Mont. 1986), 725 P.2d 562, 567, 43 St.Rep.
1731, 1737.
The District Court found that at the time the parties
agreed to modify, appellant was $3,500 in arrears in child
support and maintenance. The court also found that had the
agreement been enforced, appellant would have been relieved
of $9,000 in future child support payments. Appellant Frank
Neiss does not dispute these findings. Additionally, respon-
dent Darlene Neiss testified that she entered the agreement
because she desperately needed money to pay for the chil-
dren's expenses.
In matters relating to children, the best interests of
the children control. While terms of a contract may be
introduced as evidence, the custody and support of children
are never left to contract between the parties. In re Mar-
riage of Carlson (Mont. 1984), 693 P.2d 496, 500, 41 St.Rep.
2419.
Frank argues that he relied on the agreement to modify,
therefore, equitable estoppel requires that it be enforced.
Equitable estoppel must be found by the trial court upon
clear and compelling evidence to override the provisions of
S 40-4-208, MCA. In Re Marriage of Cook (Mont. 1986), 725
P.2d at 566, 43 St.Rep. at 1737, 1738. We agree with the
District Court that appellant has not shown sufficient evi-
dence of reliance to warrant application of the doctrine.
Frank's payments of $12,000 was nearly equal to the amount
owed during the period covered by the agreement. Therefore,
the District Court properly dismissed his claim of detrimen-
tal reliance.
We hold the District Court correctly found that Frank
Neiss failed to carry his burden of proof needed to apply
equitable estoppel. We note that both parties face difficult
financial problems. However, the children are not to be
denied support by extra-judicial agreements. These agree-
ments may please the parents, but ignore the children's need
for support. Section 40-4-208, MCA. See, Napoleon v. Napo-
leon (Hawaii 1978), 585 P.2d 1270, 1273.
The judgment of the District Court is affirmed.
Q~Y-
Chief Justice
We concur: