No. 91-515
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
IN RE THE MARRIAGE OF ANITA WILSEY,
Petitioner and Respondent,
-vs-
CHRISTOPHER JOSEPH WILSEY,
Respondent and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Joel G. Roth, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Don A. LaBar; Church, Harris, Johnson & Williams,
Great Falls, Montana.
For Respondent:
James R. Walsh; smith, Walsh, Clarke & Gregoire,
Great Falls, Montana.
Submitted on Briefs: April 3 , 1992
Decided: May 5, 1992
Filed: -
f d , ~ 5~ 1992
'
Justice Fred J. Weber delivered the Opinion of the Court.
The District Court for the Eighth Judicial District, Cascade
County, granted Anita Wilseyts (Mrs. Wilsey) motion for judgment on
the pleadings, or in the alternative, summary judgment.
Christopher Joseph Wilsey (Mr. Wilsey) appeals. We reverse and
remand.
We restate the issue as follows:
Did the District Court err in holding that Mr. WiLsey owed 37
months of child support at $1500 per month, less $3300 paid, and in
holding that he owed $1500 per month until the children graduated
from high school, without regard to the sale of his limited
partnership interest?
Mr. and Mrs. Wilsey were married in San Francisco, California
on July 2, 1978. There were three children born of the marriage.
On June 3, 1988, the parties entered into a separation
agreement. The agreement was signed by the parties and was signed
and approved by their respective attorneys.
Paragraph three (3) of the agreement provided:
That the interest of Chris in the limited partnership,
Pyrite Investors, shall be liquidated and the proceeds
placed in trust for the payment of child support i n the
t o t a l amount of $1,500.00 per month to Anita. When the
youngest child reaches majority or is otherwise
emancipated, any funds remaining in the trust will be
distributed to the children. An independent trustee,
possibly Steve Wilsey, will manage the trust;
Mrs. Wilsey filed a petition for dissolution on August 25,
1988. She subsequently filed an amended petition for dissolution
in which she alleged the existence of the June 3, 1988, separation
agreement and requested enforcement of the agreement.
In his answer, Mr. Wilsey admitted that the separation
agreement existed but denied that it was final. Rather, he alleged
that the agreement was entered into due to extreme economic
pressure, and contended that the agreement was invalid and
unenforceable.
On June 25, 1991, over 3 years after the execution of the
separation agreement, Mrs. Wilsey filed a motion for judgment on
the pleadings, or in the alternative, summary judgment, and a
motion for determination of child support arrearages. Mr. Wilsey
filed his brief in response to the motions on July 1, 1991. The
District Court also received an affidavit from Mrs. Wilsey's
attorney, Richard Dzivi, as well as an affidavit from Mr. Wilsey.
A hearing was held on July 31, 1991.
The District Court determined that the parties had equitably
divided all property and debts not disposed of in the settlement
agreement. It then granted Mrs. Wilsey's motion for judgment on
the pleadings, or in the alternative, summary judgment, finding
that the settlement agreement was final and not unconscionable. In
that regard the court found:
37. The June 3, 1988 Property Settlement Agreement
is enforceable and not unconscionable, and should be
approved. [Mr. Wilsey's] child support obligation has
been accruing for 37 months at the rate of $1,500.00 per
month for a total arrearage of $55,500.00. [Mr. Wilsey]
has paid $3,300.00 in child support. Accordingly, [Mr.
Wilsey] is indebted to [Mrs. Wilsey] for the sum of
$52,200.00 for past-due child support.
The court then concluded:
3. [Mr. Wilsey] owes a child support arrearage of
$52,200.00 to [Mrs. Wilsey]. She is entitled to
immediate execution therefor.
4. [Mr. Wilseyj shall pay to [Mrs. Wilsey] the sum
of ONETHOUSAND FIVE HUNDRED AND N0/100 DOLLARS
($1,500.00) per month as and for the care, support and
maintenance of said minor children until they graduate
from high school, except while they are wholly self
supporting or otherwise emancipated.
5. Said payments shall commence immediately ...
Mr. Wilsey appeals from that portion of the ~istrictCourt's order
concerning child support.
Did the District Court err in holding that Mr. Wilsey owed 37
months of child support at $1500 per month, less $3300 paid, and in
holding that he owed $1500 per month until the children graduated
from high school, without regard to the sale of his limited
partnership interest?
Mr. Wilsey maintains that under paragraph three of the
separation agreement, he was to pay child support at $1500 per
month only after he liquidated his interest in Pyrite Investors and
placed the proceeds in trust for the payment of such child support.
Thus, he contends that since his interest in Pyrite Investors has
yet to be liquidated, no obligation to pay child support under the
agreement has yet accrued.
Again, paragraph three (3) of the agreement provided:
That the interest of Chris in the limited partnership,
Pyrite Investors, shall be liquidated and the proceeds
placed in trust for the payment of child support in the
total amount of $1,500.00 per month to ~nita. When the
youngest child reaches majority or is otherwise
emancipated, any funds remaining in the trust will be
distributed to the children. An independent trustee,
possibly Steve Wilsey, will manage the trust;
Both parties agree that Mr. Wilsey's limited partnership interest
in Pyrite Investors has not yet been liquidated. As a result,
there are no proceeds from the liquidation of that partnership
interest which can be placed in trust for the payment of child
support of $1500 per month as provided in the agreement. In itself
the separation agreement fails to provide what should happen
regarding the payment of child support in the event that the
limited partnership interest is not liquidated. We conclude that
because of the failure to liquidate the Pyrite Investors limited
partnership interest, there is no basis under the separation
agreement for the District Court child support arrearage order of
$52,200, or the award of $1500 per month. The materials considered
by the District Court on summary judgment indicate there are issues
of fact as to the value of the partnership and as to the reasons
for failure to liquidate. In addition, there appear to be issues
of fact as to the capacity of Mr. Wilsey to pay the obligation of
child support as ordered by the District Court. There are also
issues of fact with regard to the amount of child support which may
be due without regard to the separation agreement provision. In
view of these issues of fact, summary judgment was not appropriate.
We hold that the District Court erred in its holding that Mr.
Wilsey owed 37 months of child support at $1500 per month, less
$3300 paid, and holding that he owed $1500 per month, all under the
separation agreement.
In reaching the above conclusion, we are not suggesting that
Mr. Wilsey does not have child support obligations to his children.
As pointed out in State Dept. of Revenue v. Hubbard (1986), 222
Mont. 156, 160, 720 P.2d 1177, 1179, child support is a social and
moral obligation imposed by law without court action, and whether
or not a court has ordered payment of child support, a parent has
an obligation to pay it. The materials considered by the District
Court indicate that Mr. Wilsey has failed to adequately meet his
child support obligations. This issue will properly be considered
on remand.
We reverse the District Court's holding that under the
separation agreement, Mr. Wilsey owed a child support arrearage to
Mrs. Wilsey in the amount of $52,200, and that he was obligated
under that agreement to pay $1500 per month in child support until
the children graduate from high school. We remand to the District
Court for a determination of the proper amount of child support to
be paid by Mr. Wilsey and for determination of such issues as the
court finds exist with regard to the liquidation of the Pyrite
Investors partnership interest, and for such other matters as the
court deems appropriate, including the issue of amendment of
pleadings. Without ruling upon the same, we note that the Rules of
Civil Procedure have been broadly construed to permit amendments of
pleadings such as those originally s
We Concur: A