NO. 92-089
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
CLAYTON MICHAEL MOONEY,
petitioner and ~espondent,
v.
@@f - 5 1993
SHERRY LYNN XXCENNAN, cd--%t.if4 ,
CLERK OF SIJP~~EMF
Respondent and Appellant, STAX [iloi~fANA
OF
MICHAEL ANTHONY MOONEY,
a Minor Child.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Judy A. Williams, Billings, Montana
For Respondent:
George T. Radovich, Billings, Montana
For Amicus Curiae:
Ann Hefenieder, Department of Social and
Rehabilitation Services, Billings; K. Amy
Pfeifer, Deptment of Social and Rehabilitation
Services, Helena
Submitted: December 10, 1992
Decided: March 5, 1993
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Sherry Lynn Keele, formerly Sherry Lynn Brennan (Brennan),
appeals the modification of a child support order entered in the
District Court for the Thirteenth Judicial District, Yellowstone
County. We reverse.
We restate the issue presented as:
Does incarceration constitute a substantial and continuing
change in circumstances so as to make the terms of an existing
child support order unconscionable and, as such, warrant
modification?
In 1983, Brennan gave birth to a son, Michael Anthony Mooney
(Michael). Michael's father was Clayton Michael Mooney (Mooney).
In 1984, Mooney filed a petition seeking parental rights. After a
substantial amount of legal maneuvering by both parents, a custody
and support agreement was reached. Judgment on the agreement was
entered in 1988. The order settled questions of paternity,
custody, and support. The parents had joint custody with Mooney
designated primary custodial parent.
In 1989, Brennan moved the District Court for modification of
the final custody and support decree pursuant to S 40-4-219, MCA.
In February 1991, the District Court denied Brennan's motion. The
District Court found Brennan had not satisfied the conditions set
forth in § 40-4-219, MCA. In February 1991, and again in March
1991, Mooney was arrested and subsequently pled guilty to felonious
criminal acts.
After the criminal incidents occurred in March 1991, Brennan
moved the ~istrictCourt for temporary custody of Michael. In
April 1991, the District Court grantedtemporary custody to Brennan
and issued a show cause order on the motion. Prior to a hearing on
the show cause order, the parents stipulated that they would
continue to have joint custody of Michael, but Brennan would have
temporary physical custody. In addition, after it became apparent
he would be incarcerated in Deer Lodge as a result of pleading
guilty to the criminal charges, Mooney stipulated that Brennan
would be the primary custodial parent.
Having been awarded primary custody of Michael, Brennan moved
for an award of child support from Mooney in May 1991. After a
hearing in November 1991, the District Court awarded Brennan child
support in the amount of $ 5 0 0 per month for April, May, June, and
July 1991. The $ 5 0 0 amount was based on Mooney's income prior to
his incarceration. The District Court then modified the amount of
child support and ordered Mooney to pay support in the amount of
$50 per month for August, September, October, and November 1991.
Mooney began serving his prison sentence on July 31, 1991.
Additionally, the District Court ordered Mooney to pay future child
support payments of $50 per month beginning in December 1991.
These payments were subject to modification upon Mooney's release
from prison and return to employment.
The District Court reasoned that Mooneyls incarceration
qualified as a change of circumstances so substantial and
3
continuing as to make the terms of the support order based upon his
pre-incarceration income unconscionable. It found incarceration
was not a voluntary act of unemployment or under-employment.
Therefore, income could not be imputed to Mooney because he was
neither unemployed nor under-employed of his own volition. Brennan
appeals the modification of the support order.
Does incarceration constitute a substantial and continuing
change in circumstances so as to make the terms of an existing
child support order unconscionable and, as such, warrant
modification?
In this appeal, we decide for the first time whether the
voluntary commission of a criminal offense and subsequent
involuntary incarceration is grounds for a reduction or suspension
of a child support obligation in Montana. Although the District
Court couched its order in terms of findings, it was interpreting
a statute in light of the facts presented and therefore made a
conclusion of law as to the application of § 40-4-208(2) (b) (i),
MCA . Our standard of review is "whether the tribunal's
interpretation of the law is correct." Steer, Inc. v. Department
of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603.
We are mindful that a number of jurisdictions which have
addressed this issue have decided in favor of reducing or
suspending the incarcerated parent's support obligation. Some of
these courts follow an Oregon Court of Appeals decision which was
overruled in 1991. Edmonds v. Edmonds (0r.App. 1981) , 633 P.2d 4,
overruled by Willis v. Willis (0r.App. 1991), 820 P.2d 858. Under
the Edmonds line of reasoning, an incarcerated parent is entitled
to modification unless it can be affirmatively shown that he has
assets or income with which to make the payments or the parent
became imprisoned to avoid support obligations. See, e.g. Johnson
v. 08Neill (Minn.App. 1990), 461 N.W.2d 507; Pierce v. Pierce
(Mich.App. 1987), 412 N.W.2d 291.
Additionally, some courts reason the continuation of a child
support obligation imposes an additional penalty upon one whom the
state has already penalized for an offense. Pierce, 412 N.W.2d at
293. Still others reason the continuation of a support obligation
while the parent is incarcerated does nothing to help the child and
simply adds to an accumulated burden which falls upon the parent
when released from prison. Leasure v. Leasure (Pa.Super. 1988),
549 A.2d 225, 227. We are not persuaded by these holdings.
The continuation of the child support obligation while
incarcerated does not constitute double punishment. It is simply
a continuation of that which the incarcerated parent is bound under
the law to do. Furthermore, although the parent will have a debt
burden to assume upon release, repayment of the arrearage may be
scheduled by the District Court according to post-incarceration
income.
This Court has held that "a substantial change in the
financial condition of the parent . . . has been recognized as
grounds for modification of a previously-entered child support
5
order," and we will continue to adhere to this holding in
appropriate cases. In re the Marriage of Rome (1980), 190 Mont.
495, 497, 621 P.2d 1090, 1092. However, we believe a rule
absolving a parent of a child support obligation while incarcerated
due to a voluntary criminal act is "in conflict with other well-
established principles of domestic relations law . . . ." Willis,
820 P.2d at 859. As we have often held, the support of children is
a matter of social concern. Fitzgerald v. Fitzgerald (1980), 190
Mont. 66, 70, 618 P.2d 867, 869. "It is an obligation that the
father owes the state as well as his children." Fitzserald, 618
P.2d at 869.
Section 40-4-208, MCA, allows a decree of child support to be
modified under certain circumstances. Subsection (2)(b)(i), which
is applicable to the facts presented here, reads:
(b) Whenever the decree proposed
contains provisions relating to
modification ...
may only be made:
.for modification
. support,
(i) upon a showing of changed circumstances so
substantial and continuing as to make the terms
unconscionable;
There is no question that incarceration constitutes a substantial
change in circumstances. Nor do we question the continuity of the
change of circumstances through the duration of the incarceration.
However, the issue is whether the change of circumstances caused by
incarceration rises to the level of unconscionability so as to
warrant a suspension or reduction of a parent's moral, as well as
legal, obligation to support his own. In re the Marriage of Hickey
(1984), 213 Mont. 38, 45, 689 P.2d 1222, 1226.
In the past, we have declined to adopt, or rely upon, a
solitary definition for the term 'lunconscionable" used in 5 40-
as
4-208, MCA. Green v. Green (1978), 176 Mont. 532, 539, 579 P.2d
1235, 1238-39. Rather, our interpretation of the term hinges upon
a case-by-case analysis after scrutinizing the underlying facts.
In re the Marriage of McNeff (1983), 207 Mont. 297, 300, 673 P.2d
473, 475. As we have said, "we know when we are shocked.'' Green,
579 P.2d at 1239. In light of the facts presented here, we
conclude it is not unconscionable to deny a temporary termination
or reduction in child support obligations due to incarceration,
notwithstanding the fact that the jailed parent earns no income
while incarcerated and does not have assets which could be utilized
to pay the support.
We agree with, and adopt the reasoning of, the Oregon Court of
Appeals in Willis. In Willis, the Court of Appeals reasoned:
Criminal conduct of any nature cannot excuse the
obligation to pay support. We see no reason to offer
criminals a reprieve fromtheir child support obligations
when we would not do the same for an obligor who
voluntarily walks away from his job. Unlike the obligor
who is unemployed or faced with a reduction in pay
through no fault of his own, the incarcerated person has
control over his actions and should be held to the
consequences.
A person who has a support obligation should not profit
from his criminal conduct, particularly at his children's
expense. We recognize that an individual in father's
situation--assuming that he is genuinely indigent and
unable to pay--cannot be found in contempt for not paying
support while incarcerated. However, this is not a
contempt proceeding: it is simply a modification
proceeding. Father should not be able to escape his
financial obligation to his children simply because his
misdeeds have placed him behind bars. The meter should
continue to run. Accordingly, we hold the father's
support obligation continues to accrue during his
incarceration.
Willis, 820 P.2d at 860.
Additionally, Noddin v. Noddin (N.H. 1983), 455 A.2d 1051, and
Proctor v. Proctor (Utah App. l989), 773 P.2d 1389, are persuasive.
Although these cases held modification of child support payments
were unwarranted where the incarcerated parent had assets, the
reasoning of both courts extends to the instant case. In Noddin,
the New Hampshire Supreme Court reasoned that while unemployment
and diminution of earnings were commonly grounds for modification
of a child support decree, a change in financial condition brought
about by the voluntary waste of one's talents and assets is not
reason for modification of a decree. Noddin, 455 A.2d 1053 (citing
2A W. Nelson, Divorce and Annulment Sl7.16, at 87-88 (1961 rev.
ed.)). The Utah Court of Appeals in Proctor reasoned similarly.
"[Aln able bodied person who stops working . .. as a result of
punishment for an intentional act, nonetheless retains . . . the
duty to support his or her children." Proctor, 733 P.2d at 1391.
The above reasoning, and that promulgated in Willis, is sound
and in line with the public policy of this state. The provisions
of Title 40, Chapter 4 are to be liberally construed to promote the
underlying purposes of the chapter. Section 40-4-101, MCA. One
purpose is to require parents to provide support for their
children.
This chapter shall be liberally construed and applied to
promote its underlying purposes, which are to:
(4) make reasonable provision for
during and after litigation;
. . . minor children
Section 40-4-101(4), MCA. Under the facts of this case, we hold
the District Court was incorrect as a matter of law in ruling
incarceration meets the requirements of S 40-4-208(2)(b)(i), MCA,
and justifies a modification of child support payments because of
resultant loss of income.
The decision of the District Court is reversed and remanded
for further proceedings consistent with this opinion.
We concur:
h
Justice Terry N. Trieweiler, dissenting.
I dissent from the opinion of the majority.
Although the majority's opinion is long on platitudes, it is
short on practical benefit to the dependant child; it jeopardizes
the father's chances for successful reentry into law abiding
society; and it ignores the vast majority of well-reasoned
decisions on this subject.
Child support in Montana is governed by three principal
statutes. Section 40-4-204(2) (e), MCA, lists as one of the
principal factors to be considered in assessing a parent's child
support obligation the financial resources and needs of the
noncustodial parent. Section 40-5-209, MCA, requires the
Department of Social and Rehabilitation Services to adopt uniform
child support guidelines, and § 40-4-204(3), MCA, requires that
those guidelines be applied in the court's calculation of a
noncustodial parent's child support obligation. The guidelines are
found in §§ 46.30.1501, et seq., ARM, and provide for child support
based almost exclusively on a parent's financial ability to pay.
It is clear, therefore, that throughout our statutory and
administrative scheme for arriving at a parent's obligation to pay
child support, the parent's financial ability to make those
payments is the primary concern.
It stands to reason that under 5 40-4-208(2) (b)(i), MCA, which
provides for a modification of a child support obligation where
circumstances have changed to the extent that the prior obligation
is unconscionable, the primary consideration has to be a change in
10
the parent's financial ability to continue making the support
payments. If "unconscionable" means anything, it has to at least
include the circumstances where a parent is unable to make
continued payments because he or she has no income nor any other
assets with which to make the payments.
Much of the majority opinion does not withstand scrutiny. For
example, the opinion states that imposing an impossible burden on
the father in this case is not double punishment because it is
simply a continuation of his previous obligation under the law.
However, that is not correct. His previous obligation under the
law was to make support obligations which were based on his ability
to pay. Under the majority decision, he incurs a debt for an
obligation that he has no ability to pay.
The majority goes on to say that even though the parent may
have a debt upon his release from prison, the District Court can
figure out some schedule for payment of the debt. However, if we
presume that upon his release from prison Mr. Mooney goes back to
work, and if we further presume that his support obligation at that
time reflects the maximum amount he is able to pay based on his
income, where is he supposed to get the additional amounts with
which to repay the debt that accumulated during his incarceration?
The majority dismisses the practical difficulties of the
father's predicament by concluding that he has a moral and legal
obligation to support his own child. How is that moral obligation
satisfied by entering judgment against the father which he is
completely unable to satisfy and which will place additional
financial pressure on a person who has already demonstrated that he
has a difficult time following the law?
The majority cites with approval language from another
jurisdiction to the effect that unless the child support obligation
is continued during incarceration, the parent could potentially
profit from his illegal conduct. How can the father in this case,
who was earning $30,000 before his imprisonment, profit by giving
up that income in exchange for being relieved of a $500 a month
child support obligation? The accounting system by which these
profits have been calculated is a novel one.
The problem with the majority's analysis of this case is the
manner in which it frames the issue. It is not necessary that we
decide that incarceration always relieves a parent of his or her
child support obligation, or that in the alternative, the parent is
never relieved of that obligation. The vast majority of
jurisdictions have decided that a parent who is imprisoned, and as
a result loses his or her income, is relieved of the obligation to
make child support payments unless the parent has other assets with
which to make those payments. I agree with the decision of the
Illinois Court of Appeals in Peopleexrel. Meyerv. Nein (Ill. App. 4 Dist.
1991), 568 N.E.2d 436, wherein that court stated:
Having considered all of the authorities from other
States, we agree with the Pennsylvania court which
compared incarceration to an involuntary loss of
employment (Leasure v. Leasure (1988) , 378 Pa.Super. 613,
616, 549 A.2d 225, 227; accordPetersv. Peters (Ohio Ct. ~ p p .
1990), 1990 W1 127193); we also agree, however, that
incarceration, as a foreseeable result of criminal
activity, does not ipsofacto relieve one of the obligation
to pay child support. (Division of Child Support Enforcement ex rel.
Harperv. Barrows (Del. 1990) , 570 A.2d 1180, 1183 (and cases
cited therein)). Decisions on modification, when
questions of this type appear, are best left to the
discretion of the trial court. This view is consistent
with the decisions of the courts of other States, apart
from the decision in Olzler[v. Ohler (1985), 220 Neb. 272,
369 N.W.2d 6151; and the exercise of that discretion has
generally been guided by principles summarized in Barrows:
We have found no jurisdiction which currently
suspends or discharges child support obligations if
an affirmative showing has been made that an
incarcerated support obligor has available assets.
Meyer, 568 N.E.2d at 437.
Other cases in accord with the Meyer decision are Pierce v. Pierce
(Mich. ~ p p .19871, 412 N.W.N 291; Clemansv. Collins (Alaska 1984), 679
P.2d 1041; Nab v. Nab (Idaho App. 1988), 757 P.2d 1231; Johnson v. OrNeil1
(Minn. App. 1990), 461 N.W.2d 507.
Even the New Hampshire and Utah decisions relied on by the
majority found it significant in those cases that the parents
against whom child support obligations were to be enforced had
assets with which to satisfy the obligation. In this case, there
was no evidence that Clayton Mooney had any assets with which to
satisfy the support obligation which will continue to accrue during
his imprisonment.
One of the original and leading decisions which denied
suspension of child support payments during a period of
incarceration was Ohler v. Ohler (Neb. 1985) , 369 N.W. 2d 615. However,
the dissent to that opinion by Chief Justice Krivosha is more
frequently cited and followed by other courts. In his dissent,
Chief Justice Krivosha stated:
We obviously recognize that the child support
judgment will not be paid during the time that the parent
is incarcerated, and therefore the judgment will simply
accrue with interest. Such a situation provides little
or no benefit to anyone. The children do not receive the
benefit of the proceeds during the time they require the
funds, and the parent is simply confronted with a large,
nondischargeable judgment upon release from prison, at a
time when the prospect of paying a large judgment with
interest is extremely unlikely. At current interest
rates, the judgment will double every six or seven years.
How this can be in the children's best interest is
difficult for me to imagine.
I am further persuaded by the reasoning of the
Oregon court which concludes that a court should not be
permitted to impose a judgment and itself make the
payment of that judgment impossible. We would not permit
such a result to exist in any other situation.
In dissenting, I do not for a moment ignore the fact
that the parent against whom the judgment runs has been
convicted of violating a law and has brought the problem
into being by reason of his own act. Nevertheless, the
violation of the criminal law was a matter which the
State addressed, and for which the individual is now
paying the penalty. To impose an additional penalty is
not appropriate.
Older, 369 N.W. 2d at 618-19 (Krivosha dissenting) .
This case does not present a situation where the father has
tried to avoid his obligation to his child. This father and mother
were not married, and in spite of that fact, it was the father who
initiated a paternity action to establish his parental rights. He
was the primary custodian and sole financial supporter of his child
from shortly after birth until several months after the offenses
which resulted in his imprisonment. He neither requested nor
received child support payments from the child's mother.
Prior to his imprisonment, the father was employed in a family
business in which he is a part owner. He did not leave his
employment and give up his income by choice. There is no evidence
that he chose imprisonment and unemployment as an alternative to a
$500 monthly child support obligation.
The Child Support Enforcement Division of the Montana
Department of Social and Rehabilitation Services has filed an
amicus curiae brief in this case. In its brief, the Division
opposes suspension of child support payments during a period of
imprisonment, regardless of the imprisoned parent's abilityto make
those payments. The Division makes the argument that it is the
child's best interest with which the court should be concerned,
rather than the imprisoned parent. However, nowhere in the
Division's brief, nor in the majority opinion, is there any
explanation for how this child's interest is going to be served by
imposing on the parent who has always voluntarily supported him, an
obligation to make support payments during a period of time when he
has no income and no assets with which to make those payments.
Nowhere in the Division's brief, nor in the majority's opinion, is
there any explanation for how the child is best served by imposing
a debt on this parent which in all probability can never be
satisfied.
The District Court did not suspend the father's obligation to
make child support payments as a reward because of his criminal
conduct. The obligation was suspended during the father's period
of imprisonment because, as a practical matter, the obligation
could not be paid and, as a principle of statutory law, his future
obligation after his release from prison will have to be based on
his ability to pay. To tack an accumulated debt on to what the
father is able to pay is to impose an impossible obligation.
The majority subscribes to the view that to suspend an
obligation that cannot be paid rewards an incarcerated parent and
that to enforce an obligation that cannot be paid somehow benefits
the dependent child. I cannot grasp the logic of the majority's
analysis. Therefore, I dissent from the majority opinion.
Justices Karla M. Gray and William E. Hunt, Sr., join in the
foregoing dissent of Justice Terry N. Trieweiler.
Justice
March 5, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Judy A. Williams
Attorney at Law
2442 First Ave. No.
Billings, MT 59101
George T. Radovich
Attorney at Law
926 Main, Ste. #9
Billings, MT 59105
K. Amy Pheifer
Dept. of Social & Rehabilitation Services
P.O. Box 5955
Helena, MT 59604
Ann Hefenieder
Dept. of Soc. & Rehab. Services
1127 Alderson Ave., Ste. 100
Billings, MT 59102
ED SMITH
CLERK OF THE SUPREME COURT
STATEOF MONTANA