NO. 89-185
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
IN RE THE MARRIAGE OF
DAVID L. McFATE,
petitioner and Respondent,
and
ROBERTA L. McFATE ,
Respondent and Appellant.
APPEAL FROM: ~istrict Court of the ~hirteenth~uclicial%stris,
0 s
In and for the County of Yellowstone, YJ
The Honorable Russell ~illner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Joan Meyer Nye; Nye & Meyer, Billings, Montana
For Respondent :
~evinT. Sweeney; Sweeney & Healow, ~ i l l i n ~ s ,
Montana
Submitted on Briefs: Aug. 3, 1989
Decided: October 25, 1989
Filed:
Justice William E. Hunt, Sr. delivered the Opinion of the
Court.
Appellant, Roberta L. McFate, appeals from an order of
the ~hirteenth Judicial District Court, Yellowstone County,
denying her motion to modify the parties' decree of
dissolution to require respondent, avid R. McFate, to pay
support for the parties' adult children. We affirm.
The sole issue raised on appeal is as follows:
When a motion for modification of child support is
brought after a child turns 18 years old, does the district
court have jurisdiction to modify the decree of dissolution
to require child support to continue past the age of 18 if
the separation agreement incorporated into the original
decree provides that support shall terminate once the child
reaches the age of majority or is otherwise emancipated?
At the time of the dissolution of the marriage of
Roberta and David McFate, the parties' twin son and daughter
were 12 years old. The dissolution decree awarded custody of
the two children to the mother and required the father to pay
child support as follows:
That petitioner [father] shall pay respondent
[mother] the sum of ONE HUNDRED & N0/100THs DOLLARS
($100.00) per month per child for the support,
maintenance and education of the minor children of
the parties until three years from the date of this
decree, at which time said amount is increased by
TWENTY-FIVE DOLLARS ($25.00) per month per child.
In addition to the foregoing provision for monthly
support payments, the parties' separation agreement, which
was incorporated into the decree, provided that support would
"continu[e] until said minor children reach the age of
majority or are otherwise emancipated."
On November 18, 1988, the twins turned 18. Both were in
high school at the time, one a senior and the other a junior.
After the children's birthday, the father remitted the child
support payment for November, 1988, prorating the payment
through November 19, 1988. The father indicated that the
prorated November payment would be his final remittance. He
has not made any support payments since.
On January 31, 1989, the mother filed a motion to
clarify and modify child support, requesting the District
Court to (a) require that the father's child support
obligation for each child continue through June of each
child's graduation from high school; (b) require the father
to pay necessary dental work of the children; and
(c) increase the amount of child support. After a hearing,
the District Court denied the motion, concluding that the
court lacked jurisdiction to modify the decree. The wife
appealed.
The statute governing modification and termination of
support provides as follows:
Unless otherwise agreed in writing or expressly
provided in the decree, provisions for the support
of a child are terminated by emancipation of the
child ...
section 40-4-208(5), MCA.
Under the statute, if provisions regarding the duration
of child support are not contained in either the dissolution
decree or the separation agreement, jurisdiction over child
support automatically terminates when the child becomes
emancipated. If, however, the separation agreement or the
dissolution decree provides that child support payments shall
terminate at a specific age or time, such a provision is
controlling and the district court retains jurisdiction over
questions of support until the terms of the agreement or
decree are fulfilled. Chrestenson v. Chrestenson (1979),
180 Mont. 96, 99-100, 589 P.2d 148, 150. Once the party who
owes the duty of support fulfills that obligation according
to the terms of the agreement or the decree, the district
court loses jurisdiction over the matter and can no longer
entertain motions for modification or continuation of
support.
The mother points to our decision in In re the ~arriage
of Bowman (1987), 226 Mont. 99, 734 P.2d 197, as authority
for the proposition that the jurisdiction of the trial court
continues beyond the age of majority. In Montana, the age of
majority is 18. section 41-1-101, MCA. It is true that in
Bowman we recognized the district court's authority to order
child support to continue past the age of majority. However,
such authority exists only if the district court already has
jurisdiction over the matter. In Bowman, the parties
executed a separation agreement providing support for the
couple's youngest son. The agreement was to remain in effect
until replaced by other formal legal documents. This
agreement gave the trial court the jurisdiction to order the
father to pay support even though the child was 18 at the
time of trial.
In the present case, the separation agreement
incorporated into the dissolution decree did not give the
District Court jurisdiction to consider questions concerning
child support after the children turned 18. To the contrary,
the agreement specifically provided that support payments
would terminate when the twins reached the age of majority.
This provision divested the ~istrictCourt of jurisdiction to
modify child support after the twins attained the age of 18.
On appeal, the mother raises several constitutional
questions, including equal protection of the law and equality
of educational opportunity. his Court reserves the right to
examine constitutional issues involving broad public concerns
that affect the substantial rights of a litigant even if the
questions are raised for the first time on appeal. Cottrill
v. cottrill Sodding Serv. (Mont. 1987), 744 P.2d 895, 896, 44
St-Rep. 1762, 1763. In this case, however, we decline to
address the mother's constitutional issues. We base our
refusal to examine these issues on the fact that the mother
merely raises the questions in a conclusory manner; she fails
to argue them. It is the duty of the parties to brief and
argue the issues they raise. his Court is not obligated to
make their arguments for them.
~f firmed.
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