No. 93-338
IN THE SUPREME COURT OF THE STATE OF MONTANA
2994
CAROL ANN WILLOUGHBY,
Petitioner and Appellant,
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ROLAND B. LOOMIS, .-- T
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APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Beaverhead,
The Honorable Frank M. Davis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Thomas R. Scott, Beaverhead County Attorney, Dillon,
Montana; Hon. Joseph P. Mazuxek, Attorney General,
Helena, Montana; April Armstrong, Child Support
Enforcement Division, Great Falls, Montana
For Respondent:
Vincent J. Kozakiewicz, Xozakiewicz Law Office,
Dillon, Montana
Submitted on Briefs: December 9, 1993
Decided: February 24, 1994
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal from an order of the Fifth Judicial
District, Beaverhead County, relating to the enforcement of child
support payments under the Revised Uniform Reciprocal Enforcement
of Support Act (RURESA). We reverse and remand.
We consider the following issues on appeal:
I. Did the District Court err in determining that Loomis
should pay $10,000 in child support instead of the $13,000 actually
owed?
11. Did the District Court err by ordering the child support
paid into a trust for the educational purposes of the child?
111. Did the District Court err when it discharged the State
of Montana as a party to this action under the applicable version
of RURESA?
IV. Did the District Court err in determining that the child
had reached the age of majority and was now the real party in
interest?
Carol Ann Willoughby (Willoughby) and Roland B. Loomis
(Loomis) were divorced in 1978. One daughter was born to the
marriage in October of 1974. The divorce decree, issued from
Jefferson County, ordered Loomis to pay $125 per month in child
support. Although Loomis provided his daughter with sums of money
and clothing from 1978 until 1987, he did not pay any support. He
provided no defenses to this failure. Nor did Loomis introduce
evidence showing the extent of the money he did give to his
daughter.
2
On May 29, 1987, the Jefferson County Attorney initiated this
RURESA action in the Fifth Judicial District Court, Jefferson
County in an attempt to collect back child support for the nine
years following the couplels divorce. Willoughby alleged that
Loomis owed $13,000 in back child support. The RURESA petition for
support enforcement also asked for current child support payments
in the judicially set amount of $125 per month.
The action was certified to the Fifth Judicial District Court,
Beaverhead County, where ~ o o m i sresides and t h e Beaverhead County
Attorney continued the action on ~illoughby'sbehalf. On June 8,
1987, the District Court in Beaverhead County ordered Loomis to
appear and show cause why he should not be ordered to pay the
current and delinquent support alleged in the RURESA petition.
On July 2, 1987, the court issued an order based on the
testimony at the show cause hearing stating that ~ o o m i s was
obligated to pay the $125 per month support. The order denied
Willoughbyls claim for delinquent child support and indicated that
an evidentiary hearing was needed regarding this delinquency. No
notice of entry of judgment was filed.
The Beaverhead County Attorney sought a further hearing which
was held in September of 1987. This hearing at which both
Willoughby and Loomis testified was followed by an October 16, 1987
order in which the court determined that Loomis owed back child
support. Within this document, the court outlined provisions for
a t r u s t t o be e s t a b l i s h e d i n t h e name of the daughter for $10,000
in lieu of payment of the total amount of back child support. The
trust was to contain $10,000 by October of 1992 and was then to be
given to the child who would then have reached the age of majority.
In March of 1988, the Beaverhead County Attorney sought to
have Loomis held in contempt for not establishing the trust. At an
April hearing, Loomis testified that he had failed to establish the
trust under the court guidelines. He had opened the trust with a
$40 deposit, but later drew that out. Throughout this time, Loomis
continued to make his regular current payments of $125 per month.
In April of 1988, the court denied the motion for contempt and
refused to amend the judgment. The court determined that failure
to establish the trust payments according to the court's order was
a "harmless dilatory act."
On January 21, 1993, the Beaverhead County Attorney filed a
Motion and Order to Show Cause, again requesting that Loomis be
held in contempt for complete failure to comply with the court's
orders. The petition alleged that the trust contained no money on
October 20, 1992, the time set for the $10,000 to have accumulated
in the trust. During a hearing held on February 12, 1993, Loomis
admitted that he had not complied with the court's earlier order.
The court stated at that time that the judgment was intended to be
a stay of execution which Loomis could discharge by making deposits
into the trust account.
The ensuing March 18, 1993 order stated that Loomis had failed
to pay $10,000 into the trust account and that the child was now an
adult who could execute on the judgment. The court dismissed the
State as a party and determined that a contempt order was not
appropriate.
The Beaverhead County Attorney filed a Motion for
Reconsideration of Findings and Order, dated April 19, 1993. The
court issued its final order on May 1993 denying the motion for
reconsideration and prohibiting the State of Montana from any
further action in this case. The State of Montana has filed an
appeal from the May 3, 1993 order and from the earlier orders in
this case.
I
Did the District Court err in determining that Loomis should pay
$10,000 in child support instead of the $13,000 actually owed?
The State argues that the District Court had no foundation for
setting the amount of child support arrearage at $10,000. The
State contends that Loomis never denied that he owed the $13,000 in
back child support and the court never indicated why it reduced the
$13,000 total by $3,000. The State contends that retroactive
modification of support is not permitted by Montana law.
Loomis argues that Willoughbyls appeal in this action is
untimely because the original order setting the $10,000 amount is
dated October of 1987. Further, Loomis cites several maxims of
jurisprudence to fortify his contention that Willoughbyls failure
to file a notice of entry of judgment concerning that order
prevents her from filing an appeal now.
The Attorney General filed Willoughbyls appeal on June 8,
1993. According to Rule 5, M.R.App.P., when the State is a party
to a lawsuit, appeal must be taken within 60 days from the order
appealed from or 60 days from the notice of entry of judgment. The
time for appeal does not begin to run until the notice of entry of
judgment has been entered. El-Ce Storms Trust v. Svetahor (1987),
223 Mont. 113, 724 P.2d 704. The record contains no notice of
entry of judgment. We conclude that the appeal has been timely
filed in this case because the final order was dated May 3, 1993,
and the record contains no notice of entry of judgment.
The pivotal question, however, is whether the District Court
had jurisdiction to order Loomis to pay $10,000 instead of the
$13,000 he owed in back child support. This present action was
filed pursuant to 5 5 40-5-101, MCA(1987), et seq., which is the
Montana Revised Uniform Reciprocal Enforcement of Support Act
(RURESA). Willoughby filed the action in 1987, nine years after
the original divorce had been granted with an attendant child
support provision for $125 per month. No payments of child support
were made prior to the date of filing this action.
This Court has determined that each child support payment
"becomes a judgment debt similar to any other judgment for money."
In re Marriage of Sabo (1986), 224 Mont. 252, 254, 730 P.2d 1112,
1113; In re Marriage of Hooper & Crittendon (1991), 247 Mont. 322,
327, 806 P.2d 541, 544. As such, a party has ten years to execute
on a judgment. Section 27-2-201(1), MCA. We have specifically
determined that this ten-year statute of limitations applies to
actions by one parent against another for child support arrearage.
Hooper & Crittendon, 247 Mont. at 327, 806 P.2d at 544.
The ~istrict Court quoted Blakeslee v. Horton (1986), 222
Mont. 351, 722 P.2d 1148, for the proposition that equity prevents
the mother from seeking payment of support after nine years. While
the Blakeslee Court applied equitable principles for a 14-year
delay in seeking support arrearage, the case was decided several
months before Sabo which determined that each individual support
payment is a money judgment and, therefore, subject to the ten-year
statute of limitations for money judgments. Section 27-2-201(1),
MCA. However, even under the Sabo interpretation, Blakeslee would
have been decided similarly because the ten-year limit had been
exceeded. We conclude that the District Court erroneously relied
on Blakeslee.
The District Court also modified the total amount of child
support arrearage owed to the custodial parent by reducing the
total $3,000. The controlling statute is 5 40-4-208 (I), MCA, which
we have interpreted to mean that courts can only modify a child
support judgment prospectively. Hoouer & Crittendon, 247 Mont. at
324, 806 P.2d at 543. The District Court changed the arrearage
total by merely stating that $10,000 was a "reasonablew amount.
While it is true that petitioner asked for a "reasonable
amount" of the money owed to her, such a request does not take
precedence over established law. That law specifically prohibits
courts from retroactively modifying child support by any amount.
Loomis requests application of equity. We have utilized
principles of equity previously to carve an exception to 5 40-4-
208, MCA's prohibition against retroactive modification by applying
equitable parameters in extraordinary circumstances. Such
extraordinary circumstances involve a situation in which both
parents agree to a modification in child support and the agreement
is observed by both parents over a period of years. H o o ~ e r&
Crittendon, 247 Mont. at 324, 806 P.2d at 543.
The record before us indicates that Willoughby and Loomis have
not engaged in any such agreement. Of greater importance is
Loomis' admission that he owes the full amount of $13,000. Because
the parents have not judicially modified the child support nor
mutually agreed and acted upon any changes to the original order,
the District Court, under the statutes in effect at the time of
this action, cannot sua soonte retroactively modify an earlier
support order from another jurisdiction by issuing a contemporary
RURESA order. We note that the 1993 Legislature has now changed
the procedure by which the courts of one state can modify support
orders of another. Section 40-5-194, MCA(1993).
We conclude that the District Court must enforce the original
amount owed to Willoughby, from date of the original support order
in 1978 until the filing of the RURESA action in 1987. We
therefore, hold that the District Court erred in determining that
Loomis should pay $10,000 in child support instead of the $13,000
actually owed. Because the District Court acted beyond its
jurisdiction, we reverse and remand.
II
Did the District Court err by ordering the child support paid into
a trust for the educational purposes of the child?
Neither party in this action sought a trust. The District
Court on its own established a trust for the minor child to be paid
to the child at the age of majority. On appeal, Willoughby argues
that in creating the trust, the court modified the original support
order inappropriately. Loomis argues that the decision to create
a trust occurred six years ago and that this Court cannot now
change that order.
Because an appeal was taken within the allotted statutory time
for filing of an appeal, Loomisls argument is incorrect. In
addition, we have already stated that the District Court cannot
modify support orders retroactively, except in certain situations.
Creating the trust was a modification not sought by the parties nor
ordered by the court in the original divorce decree.
The court designated the trust to be used for the child's
education. Support is a sum of money paid to the custodial parent
to be used for the child; the manner in which child support is to
be used is left to the discretion of the custodial parent.
Williams v. Budke (1980), 186 Mont. 71, 75, 606 P.2d 515, 517. The
court erred in creating a trust for the child because neither party
had asked that such a trust be created.
Loomis argues that Williams is not applicable because it is
not a RURESA case. Williams was decided pursuant to 5 40-4-208(1),
MCA, which has been a part of our law in this state since 1975.
Despite the 1993 modifications to the Uniform Act, this statute has
remained intact to this day. The statute states in pertinent part:
" . . . decree may be modified by a court as to
maintenance or support only as to installments accruinq
subseauent to actual notice to the oarties of the motion
for modification." (Emphasis added--"to actual notice to
the parties" has been added since 1975 and remains in the
1993 version) .
We conclude that whether in Williams or in the present case, the
law remains the same: a court cannot retroactively change a prior
support order--whether by instituting deferred payments of the
arrearage as in Williams or by setting the manner in which amount
of arrearage owed can be used such as in this case of establishing
a trust for educational purposes.
We hold that the court erred in creating a trust for the
educational purposes of the child.
I11
Did the District Court err when it discharged the State of Montana
as a party to this action under the applicable version of RURESA?
In its March 18, 1993 order, the District Court dismissed the
State of Montana from the action and warned that neither Willoughby
nor her daughter would be permitted to involve the State in future
actions. The court gave no justification for this dismissal. The
State argues that the court was without the jurisdiction to dismiss
it. The State contends that the law clearly mandates that it is
preciselythe county attorney under the supervision of the Attorney
General who must prosecute this case.
Loomis argues that the statute provides that the county
attorney (prosecuting attorney) can only prosecute the case when
asked to do so by the court or by certain public organizations.
According to Loomis, Willoughby herself sought help from the county
attorney and cannot, therefore, benefit from the request as she was
without legal right to make the request.
10
Statutes may not be interpreted to defeat their intent or
purpose; the object sought to be achieved by the legislature is our
prime consideration in interpreting them. Montana Talc Co. v.
Cyprus Mines Corp. (1987), 229 Mont. 491, 748 P.2d 444. In order
to determine the intent of the legislature, we must read
legislation as a whole. State v. Magnuson (1984), 210 Mont. 401,
682 P.2d 1365. Further, the uniform act itself states that the Act
should be construed so as to effectuate the Act's general purpose.
9B U.L.A. 9968, 1968 RURESA 541.
RURESA has now been preserved in some form by all fifty
states. J. Gorham, Stemminq the Modification of Child-Support
Orders bv Respondinq Courts: A Proposal to Amend RURESA's
Antisupersession Clause, 24 University of Michigan Journal of Law
Reform 405 (1991). The intent of the original act remains the same
throughout the country. The purpose behind uniform support
enforcement is to prevent non-custodial parents from escaping their
financial responsibilities by moving to another jurisdiction.
Until last year in Montana, "another jurisdiction'^ included another
county. Section 40-5-134, MCA(1987), repealed in 1993; T.
Christie, 50 Montana Law Review, Child Support Enforcement in
Montana, 165 (1989). The purpose of RURESA in Montana has been to
improve and extend reciprocal support enforcement legislation,
between jurisdictions. Section 40-5-102, MCA(1987).
In order to improve prosecution across state lines, as well as
intra-state county lines, the 1987 version of RURESA called for the
use of public officials as prosecutors. The term "prosecuting
attorney" is used throughout the 1987 version of RURESA and is
defined as "the public official in the appropriate place who has
the duty to enforce criminal laws relating to the failure to
provide for the support of any person." Section 40-5-103(8),
MCA(1987). This definition has been maintained by the new
legislature in 1 40-5-103(15), MCA(1993).
Inherent in the use of public officials to prosecute these
cases is the understanding that a custodial parent many times
cannot enforce support orders if they must hire private counsel to
prosecute in another jurisdiction, nor would many parents have
money themselves to travel to other jurisdictions repeatedly. L.
Hughes, Interstate Enforcement of SuRuort Obliqations Throuqh Lonq
Arm Statutes and URESA, 18 Journal of Family Law 537 (1980).
Loomis argues to us that Willoughby cannot herself approach
the county attorney and ask him to prosecute for her. Section 40-
5-139 (1987), MCA, stated:
Official to represent obligee. (1) If this state is
acting either as a rendering or a registering state, the
prosecuting attorney, upon the request of the court, a
state department of social and rehabilitation services,
a state department of family services, a county
commissioner, or other local welfare official, shall
represent the obliqee in ~roceedinqunder this part.
(Emphasis added.)
Section 40-5-139, MCA(1987), repealed in 1993. This section also
applied to counties in Montana pursuant to 1 40-5-134, MCA.
At Willoughby~s request the Jefferson County Attorney here
petitioned the District Court of Jefferson County to certify the
action to Beaverhead County where the Beaverhead County Attorney
then continued representation of Willoughby, obligee under the
statute. The foregoing statute does not list the obligee among the
persons named as entitled to request the services of the
prosecuting attorney. As a result there is no statutory obligation
on the part of the county attorney to act when requested by obligee
Willoughby. As a result, the choice to represent Willoughby rested
with the prosecuting attorney. Neither county attorney refused to
act and proceeded with the representation of Willoughby as obligee.
We conclude that the initiation of the request by the obligee did
not controvert the act in such a manner as to prohibit the
prosecuting attorney from acting. We conclude there was no
statutory violation when the county attorney as prosecuting
attorney represented the obligee under the act.
In 1987 and through 1992, RURESA called for State
participation in these suits through the office of the prosecuting
(county) attorney. The 1993 Legislature has repealed 5 40-5-135
and 139, MCA, thus removing from the State the wide discretion that
it had to act in these cases. The distinctions that we make in the
present case are no longer the law of Montana. Future cases must
await specific interpretation of the new modifications to RURESA.
We hold that the District Court erred in discharging the State of
Montana as a party to this action under the applicable version of
RURESA.
IV
Did the District Court err in determining that the child had
reached the age of majority and was now the real party in interest?
The District Court determined that the action for child
support no longer existed once the court handed down a judgment.
The court stated that the doctrine of "merger" acted to change the
character of the action itself from one of child support to one of
action on a judgment. The court indicated that it was the child
who had now reached the age of majority who had the power to obtain
the judgment.
Willoughby argues on appeal that the aforementioned court
order is contrary to the purpose of RURESA which is to extend the
custodial parent's remedies, not to terminate them. Loomis argues
that the court never held that the child was the real party in
interest
It is clear from the District Court's order of March 1993,
that it considered the child the real party in interest:
The child in question is now an adult. As the
beneficiary of the judgment, she can enforce it in her
own right. ... The court wonders if the mother has any
standing to enforce the judgment in the absence of a
consent and authorization by the now adult beneficiary.
The court erroneously mischaracterizes what has happened.
The 1987 version of RURESA clearly gave the Attorney General
jurisdiction to appeal to this Court any support order that the
State believed to have been made erroneously or that contains a
question of law. Section 40-5-135, MCA(1987), Here, the county
attorney filed the appeal on behalf of the Attorney General. It is
obvious from the briefing in this case that the Assistant to the
Attorney General believed that the actions engaged in by the
District Court "warranted an appeal in the public interest."
Considering that we have reversed on all issues, such an evaluation
is correct.
This action is, therefore, an appropriate appeal of a district
court RURESA order pursuant to the 1987 version of RURESA. As such
it is an appeal from a child support order. The District Court
completely mischaracterizes the action by quoting a leading
treatise on judgments:
a valid and final personal judgment is conclusive between
the parties except on appeal - to the following extent:
(1) If the judgment is in favor of the Plaintiff, the
claim is extinguished and merged in the judgment, and a
new claim may arise on the judgment. (Emphasis added.)
This does not mean that the State cannot file an appeal. The 1987
Legislature specifically and clearly gave the State of Montana
jurisdiction to appeal any district court support order under
RURESA. Section 40-5-135, MCA.
The aforementioned passage from the Restatement of Judgments
cannot be interpreted to indicate that the State cannot appeal. If
anything it speaks to the plaintiff's continuing ability to re-
prosecute a legal issue which has already been settled by a court.
Furthermore, the passage does not speak at all to the situation
before us--which is one in which the Attorney General, not the
successful plaintiff, has chosen to appeal a RURESA order of the
District Court.
We have previously stated in this opinion that support is to
be paid to the custodial parent for the purpose of aiding the
child; but we will not tell the custodial parent how to spend the
money that has been awarded. Williams, 186 Mont. at 75, 606 P.2d
at 517. The money used by Willoughby to care for her minor
child, came exclusively from her own sources. The court ordered
Loomis to provide support at a sum certain each month and he did
not comply with the order. But it is not within the court's
discretion to bypass the custodial parent. We have previously
stated that where the father has been obligated by divorce decree
to pay support to the mother, the father cannot discharge his duty
by giving the money to the child directly. Oregon ex rel. Worden
v. Drinkwalter (1985), 216 Mont. 9, 700 P.2d 150.
We conclude that the action before us is an appropriate appeal
filed by the Attorney General for the State of Montana under an
earlier version of RURESA and that the appeal concerns an erroneous
support order entered by the District Court and that the appeal
concerns matters in the public interest. We also conclude that
Willoughby shall receive the arrearage. Therefore, we hold that
the District Court erred in determining that the child had reached
the age of majority and was now the real party in interest.
Reversed and remanded for further proceedings consistent with
this opinion.
We Goncur: