NO. 92-154
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
IN RE THE MARRIAGE OF
WILL0 B. PETRANEK, n/k/a STREET,
Petitioner and Respondent,
and
THOMAS B. PETRANEK,
Respondent and Appellant.
APPEAL FROM: District Court of the Tenth Judicial District,
In and for the County of Fergus,
The Honorable Peter L. Raphoch, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jack R. Stone, Attorney at Law, Lewistown, Montana
For Respondent:
James D. Elshoff, Attorney at Law, Great Falls,
Montana
Submitted on Briefs: July 2, 1992
Filed:
Clerk
Justice Terry N. Trieweiler delivered the opinion of the Court.
Respondent Willo B. Petranek, now known as Willo B. Street,
filed a motion for child support arrears on September 10, 1991,
seeking enforcement of the parties1 1981 divorce decree. Following
a January 24, 3992, hearing, the District Court for the Tenth
~udicial ~istrict, Fergus County, found that appellant Thomas B.
Petranek owed arrears and interest in the amount of $12,919-50
which had accrued from December 1982 through March 1992. From that
judgment, Thomas appeals. We affirm.
The sole issue for our consideration is whether the District
Court abused its discretion by concluding that its 1982 decree
entered pursuant to the Uniform Reciprocal Enforcement of Support
Act (URESA) did not modify the child support obligation imposed in
the couple's original Decree of Dissolution.
On March 6, 1981, Willo petitioned for dissolution of marriage
in Fergus County Cause No. 24770. District Court Judge -Roy
McKinnon dissolved Willols and Thomasls marriage on July 28, 1981,
and awarded Willo custody of Joesanha, the couple's 2t-year-old
child. Thomas was ordered to pay child support in the amount of
$225 per month until Joesanha reached 18 years of age or graduated
from high school.
Thomas paid that amount through 1981, but became delinquent in
1982 after Willo and Joesanha moved to Washington state. In
November 1982, Willo commenced an action under URESA in the Fergus
County District Court, under Cause No. 25137, to recover the
delinquencies. Neither party petitioned for a modification of the
support provisions contained in the divorce decree; the URESA
action was initiated to enforce Thomas's existing support
obligation.
In an order signed December 6, 1982, pursuant to the URESA
action, Judge McKinnon ordered Thomas to pay $130 per month until
Joesanhatsemancipation, or further order of the court. The URESA
order made no reference to the underlying divorce decree or the
support order under Cause No. 24770.
Thomas has since made monthly payments of $130, which were
credited toward URESA Cause No. 25137 and transferred to the Clerk
of Superior Court in Pullman, Washington, for payment to Willo.
In September 1991, Willo brought an action in the Fergus
County District Court alleging that Thomas has not satisfied his
original $225 monthly support obligations. Willo claimed that
Judge McKinnontsURESA order, while requiring payments of $130 per
month, had not modified the support provisions of the original
divorce decree. The District Court, under Judge Peter Rapkoch,
agreed with Willo, and awarded a judgment of $12,919.50 for past
due child support and interest through March 1992. Notice of entry
of judgment was filed on April 12, 1992. Thomas appeals.
Thomas concedes that the law is well settled in this area but
advocates the application of equitable principles.
Section 40-4-208, MCA, sets forth the requirements for court
modification of a support decree, and provides that a dissolution
decree can be modified Itonlyas to installments accruing subsequent
to actual notice to the parties of a motion for modification."
3
(Emphasis added.) We have consistently interpreted the statutes in
the child support area very strictly, as evidenced by our recent
holding in InretheMam'ageofDurbin (lssl), 251 Mont. 51, 823 P.2d 243,
In that case, we pointed out that .a child support provision in a
divorce decree cannot be modified absent a motion under 5 40-4-208,
MCA. Durbin exemplifies our reluctance to waive, or loosely
construe, statutory requirements in this area. We held that even
the receipt of Social Security benefits on behalf of the child did
not justify an equitable modification of a support obligation,
absent a court order to modify under § 40-4-208, MCA.
There is no evidence that either Willo or Thomas ever sought
modification of the original divorce decree by a motion under
5 40-4-208, MCA, and there has never been a court order pursuant to
Cause No. 24770 modifying the original order. Consequently, we
conclude there has been no modification of Thomas's $225 per month
support obligation entered in 1981 under Cause No. 24770.
Thomas contends that the URESA action modified the original
obligation, and that he relied in good faith on this modification
since 1982.
The Uniform Reciprocal Enforcement of Support Act was adopted
by Montana in 1961 to provide an auxiliary or supplemental remedy
for the enforcement of support orders. While a court in a URESA
proceeding looks to the ability of the obligor to pay at the time
of the enforcement proceeding, the authority of the court
originally ordering payment in not affected. Nor is its order
modified by an order of a court fixing another or different sum
pursuant to the URESA action. ~ e s p a ~ v . ~ ~ (Idaho 1956), 300 P.2d
pabz
500 (cited with approval in Howardv.Howard (Miss. 1966), 1 9 1 so.2d
5 2 8 ; Oglesby v. Oglesby (Utah 1973), 510 P.2d 1106) .
Section 40-5-132, MCA, which codifies URESA, provides that:
A support order made by a court of this state pursuant to
this part [URESA] does not nullify and is not nullified
by a support order made by a court of this state pursuant
to any other law . . .
unless otherwise specifically
provided by the court.
We held in Campbellv.Jenne (1977), 172 Mont. 219, 223, 563 P.2d 574,
577, that URESA support orders which do not reference prior support
awards do not modify them. Furthermore, under Montana law, we have
clearly stated that child support modification and WRESA actions do
not merge. A request for modification of a divorce decree is
separate and distinct from an action arising under URESA. Oregonex
rel Wordenv.Drinkwalter (1985), 216 Mont. 9, 700 P.2d 150.
In this case, the UFU3SA order (Cause No. 25137) did not refer
to the underlying support order in Cause No. 24770, and neither
party ever sought modification of the order as required by statute.
We hold that the District Court correctly concluded that the
original support order requiring Thomas to pay $225 per month was
valid and had not been modified by the UrCESA enforcement action
initiated by Willo.
Finally, Thomas argues that if the original support order was
not modified by the URESA action, equity should intervene and bar
Willors attempt to collect nine years of past due support payments
under the doctrine of laches. However, the public policy of this
state is that neither laches nor equitable estoppel applies to the
recovery of child support arrears because childrentsrights are at
stake and will not be sacrificed by inaction of the custodial
parent. F t g r l v F t g r l (1980), 190 Mont. 66, 618 P.2d 867.
izead.izead
Though one might reasonably expect the custodian to promptly seek
enforcement of a support order, failure of the custodian to do so
does not benefit the person failing to pay by relieving them of
that duty. Fikgerald, 618 P.2d at 869 (citing with approval Patenon
v. Patemon (Wis. 19761, 242 N.W.2d 907).
Despite our refusal to apply laches to the recovery of past
due child support obligations, we recently held the ten year
statute of limitations for actions upon court judgments or decrees,
S 27-2-201(1), MCA, applicable to actions by one parent against the
other for past due child support. In re the Marriage o Hooper & Crittendon
f
(1991), 247 Mont. 322, 327, 806 P.2d 541, 544. Because all of the
amounts Willo sought had accrued within the ten-year period prior
to the filing of this action, the District Court was correct in
concluding that all past due payments were recoverable.
For these reasons, the decision of the District Court is
affinned.
We concur:
December 17, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
JACK R. STONE
Attorney at Law
Rt. 3, Box 3126
Lewistown, MT 59457
James D. Elshoff
Attorney at Law
P.O. Box 2323
Great Falls, MT 59403
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANP.