No. 87-460
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
IN RE THE SUPPORT OF
CAROLYN ELLEN KRUG and
CRISTINA ESTEE KRUG, Minor Children.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable G. Todd Baugh, Judge presiding.
COUNSEL OF RECORD:
Cross-
For Appellants/Respondents:
Kevin T. Sweeney; Sweeney & Healow, Billings, Montana
For Respondent/Appellant:
Fred E. Work, Jr., Work Law Firm, Billings, Montana
Submitted on Briefs: Jan. 28, 1988
Decided: March 8, 1988
Filed: MAR 8 - 1988'
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
The District Court for the Thirteenth Judicial District,
Yellowstone County, ordered the father to pay prospective
child support, finding unconscionable a stipulation by which
the father and mother had agreed the father would not be
responsible for any child support. The father appeals and
the children cross appeal-. We affirm.
We restate the issues raised by the father as:
1. Do the doctrines of collateral estoppel and equita-
ble estoppel bar the relief sought by the minor children?
2. Does S 40-4-208 ( 3 1 (b)(ii), MCA, bar the children's
petition?
3. Does 5 40-6-211, MCA, preclude relief in this case?
4. Should the children's petition have been brought
under the action dissolving the parents' marriage?
The children raise the issues of whether it was error to
fail to award past support and support during the pendency of
this action.
The parents' marriage was dissolved in 1978. Custody of
the two minor children was awarded to the mother. The father
was ordered to pay $200 per month in child support, plus
certain medical costs. In 1980, the parents entered a stipu-
lation wherein they agreed that 1) the father would be re-
lieved of any future duty to support the children, 2) the
mother would give the father upon his request a satisfaction
of judgment for child support, 3) the father would forego his
right to visitation with the children, 4) the father would
permit future adoption of the children by anyone the mother
would select, and 5) the father would not contest the guardi-
an appointed in the mother's will. The District Court or-
dered that the dissolution decree be amended by the
stipulation.
In March 1987, the children petitioned the court to set
reasonable child support and to require the father to pay
past, present, and future child support to the mother, along
with medical, dental, and health insurance coverage. The
absence of a guardian ad litem is not an issue in this case.
See Rule 9 (a), M. R. Civ. P. Both parents filed affidavits
setting forth their assets and liabilities, income and ex-
penses. The mother's affidavit shows that she is a court
secretary and holds a second job. Her monthly income avail-
able for child support purposes is $1,083. The father's
affidavit states that he is employed at the Cenex Refinery in
Laurel, Montana. His monthly income available for child
support purposes is $1,838.48. Both parents' employment is
relatively secure. The mother lists $1,667 in monthly ex-
penses for herself and the children.
The matter was submitted to the court on the parties'
briefs, the affidavits, and an agreed statement of facts.
The court denied the request for past child support on equi-
table grounds. However, as to future child support, the
court refused to honor the parents' stipulation. It ordered
the father to pay the mother $285 per month per child begin-
ning the next month. It also ordered the father to provide
health insurance for the children through his employment and
to contribute 63% of their uninsured health care costs.
1
Do the doctrines of collateral estoppel and equitable
estoppel bar the relief sought by the minor children?
Collateral estoppel bars the same parties from
relitigating issues on which a final judgment has been en-
tered in a different cause of action. Matter of Unfair Labor
Practice No. 38-80 (Mont. 1986), 720 P.2d 1181, 1182, 43
St.Rep. 1148, 1150. Under 5 40-4-208, MCA, future support
installments may be modified. Thus, they are not final
judgments for purposes of collateral estoppel. We hold that
collateral estoppel does not bar modification of the father's
future child support obligation.
The father cites three opinions of this Court in support
of his argument that equitable estoppel bars the relief
sought by the minor children. In the first, State ex rel.
Blakeslee v. Horton (Mont. 1986), 722 P.2d 1148, 43 St.Rep
1321, we affirmed the district court's order denying the
mother's claim for child support following a 14-year agree-
ment whereby the father paid no support and had no contact
with the child. We cited the lower court's statement that
there was no proof of a present actual need for the support
requested. In the second case cited, the mother had been
awarded custody of the children. However, the parents had
made an express agreement under which the father had assumed
custody of the children. The lower court concluded that the
mother was estopped from enforcing the support provisions of
the dissolution decree. We affirmed. In re Marriage of Cook
(Mont. 1986), 725 P.2d 562, 43 St.Rep. 1732. In the third
case cited, the parties had entered an oral agreement reduc-
ing the amount of child support the father would pay during
periods when he was laid off work. This Court held that the
relative financial abilities of the parties made the terms of
the previous support order, which the mother sought to en-
force, unconscionable. In re Marriage of Jensen (Mont.
1986), 727 P.2d 512, 43 St.Rep. 189.
The equitable considerations in this case contrast with
those in Blakeslee, Cook, and Jensen. Here, it is the chil-
dren, and not the mother, who petition for support. The
children were not parties to the stipulation bet-ween the
mother and the father, and the children, not the parents, are
the beneficiaries of child support. More importantly, in the
present case it is not disputed that the support requested is
necessary and that the father has the ability to contribute
what the mother cannot. The lower court granted the petition
for future support. We hold that under the circumstances
presented here, equitable estoppel does not bar the petition.
Does S 40-4-208 (2) (b)(ii), MCA, bar the children's
petition?
The father argues that the stipulation between the
parents is valid under 5 40-4-208I2) (b)(ii), MCA, and that no
basis has been shown for modifying the stipulation. Section
40-4-208 (2) (b), MCA, provides:
(b) Whenever the decree proposed for modifi-
cation contains provisions relating to maintenance
or support, modification under subsection (1) may
only be made:
(i) upon a showing of changed circumstances
so substantial and continuing as to make the terms
unconscionable; or
(ii) upon written consent of the parties.
The lower court stated that "[aln agreement which at-
tempts to abrogate child support forever is unconscionable in
all but the most strained circumstances" and that the stipu-
lation for no support in this case was "unconscionable ab
initio. " An unconscionable stipulation does not attain
validity by virtue of being signed by the parties. However,
because the stipulation was incorporated into the dissolution
decree, it is, in effect, a support decree proposed for
modification. While the lower court did not make a specific
finding of unconscionability under 5 40-4-208 (2)(b)(i), MCA,
we again point out that a need for future support has been
established and is not contested. We hold that the petition
was not barred by this statute.
111
Does $ 40-6-211, MCA, preclude relief in this case?
Section 40-6-211, MCA, provides:
Obligations of parents for the support and educa-
tion of their children. The parent or parents
entitled to the custody of a child must give him
support and education suitable to his
circumstances.
The father argues that this statute precludes relief unless
there is a showing that the mother, as the custodial parent,
can no longer provide the minor children with support and
education suitable to their circumstances.
This statute was enacted as part of the Civil Code of
1895. It is not a part of the major revision of Montana's
termination of marriage, child custody, and support statutes
adopted in 1975. We hold that this statute does not relieve
a noncustodial parent of obligations of support under Mon-
tana's other child support laws.
IV
Should the children's petition have been brought under
the action dissolving the parents' marriage?
This argument is raised for the first time on appeal.
While it may have some technical merit, we note that the
parents' dissolution was also a Yellowstone County action.
We hold that this issue, raised for the first time on appeal,
does not present grounds for reversal.
v
Did the court err by not ordering past child support?
The children cite this Court's opinion in Marriage of
Neiss (Mont. 1987), 743 P.2d 1022, 44 St.Rep. 1695. In that
case, after a decree had been entered ordering the father to
pay the mother monthly child support, the parents had agreed
that the father would pay the mother several quarterly in-
stallment payments, and that the mother would then release
him from further obligations for child support and mainte-
nance. This Court quoted the best interest of the child test
as the standard, then held the parents' agreement void as
against public policy. "Equitable estoppel must be found by
the trial court upon clear and compelling evidence to over-
ride the provisions of s 40-4-208, MCA." Neiss, 743 P . 2 d at
1024 (citing Cook).
Here, in addition to an absence of support for some
seven years, there was also a complete absence of contact
between the father and the children for that period. As the
district court stated, "while this court could restore the
monetary child support which should have been paid by respon-
dent it cannot restore the missed visitation to respondent."
Additionally, there was no evidence that the children now
require that the past child support be paid. We hold that
clear and compelling evidence supports the court's refusal to
award past child support.
VI
Did the court err by failing to award support during the
pendency of this action?
Section 40-4-208, MCA, provides that "a decree may be
modified by a court as to maintenance or support only as to
installments accruing subsequent to actual notice to the
parties of the motion for modification." The children point
out that their father received actual notice of the motion
for modification when they filed their petition. They say
the court erred by failing to award support from that time
forward.
The statute leaves discretion in the trial court as to
when modification takes effect. In re Support of Rockman
(Mont. 1985), 705 P.2d 590, 592, 42 St.Rep. 1323, 1326. In
light of all circumstances, we do not hold the lower court in
error in exercising its discretion as it did.
Affirmed.