NO. 93-344
IN THE SUPREME COURT OF THE STATE OF MONTANA
IN RE THE MARRIAGE OF
JODY BROWN,
Petitioner and Respondent,
JAN 1 3 1994
and
STEPHEN BROWN,
Respondent and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas M. McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Curtis G. Thompson and Patrick R. Watt, Jardine,
Stephenson, Blewett & Weaver, Great Falls, Montana
For Respondent:
Antonia P. Marra, Bell & Marra, Great Falls, Montana
Submitted on Briefs: November 18, 1993
~ ~ ~ i d ~ d : 13, 1994
January
Filed:
Justice James C. Nelson delivered the Opinion of the Court.
This is an appeal from an order of the Eighth Judicial
District Court, Cascade County, in a dissolution action. We
affirm.
We restate the issues on appeal as follows:
1. Did Jodyls URESA action modify the underlying order for
child support?
2. Were Jodyls claims for child support obligations accruing
more than ten years before the filing date of her Motion for
Enforcement of the Divorce Decree and Order to Show Cause time-
barred by § 27-2-201, MCA?
3. Did the District Court err when it computed Stephen's past
and current child support obligations?
The petitioner, Jody Brown (Jody) and the respondent Stephen
Brown (Stephen) were married in Helena, Montana on April 22, 1972.
The marriage was dissolved on July 23, 1979, Jody was given custody
of the three minor children and Stephen was granted reasonable
visitation and was ordered to pay $125 per child per month for
child support.
Jody encountered problems obtaining her child support payments
from Stephen. In the fall of 1979, Stephen was ordered to show
cause for noncompliance with the dissolution decree and was ordered
to pay child support. Stephen still did not fulfill his child
support obligations, and in March of 1982, Jody brought an action
against Stephen under the Revised Uniform Reciprocal Enforcement of
Support Act (1968), §§ 40-5-101, MCA, et seq., (URESA) to obtain
2
the child support monies to which she was entitled.
As a result of her bringing that action, Jody and Stephen
executed a written stipulation stating that Stephen was in arrears
in his child support payments in the amount of $16,425.00 through
July 1982, and pursuant to which he agreed to pay $60 per week for
child support, those payments to continue until further order of
the court.
The Stipulation was dated "- day of August, 1982" and was
signed by both parties. On September 3, 1982, the District Judge
signed an Order (which immediately followed the parties signatures
on the same page). That Order ". . . entered [the stipulation] as an
Order of the Court ...," enforceable by contempt, and, along with
the Stipulation, was filed with the Clerk of Court on that same
date.
On June 3, 1992, venue of the case was transferred from Lewis
and Clark County to Cascade County. On June 19, 1992, still unable
to collect her child support, Jody filed a Motion for Enforcement
of the Dissolution Decree and for an Order to Show Cause why the
decree should not be enforced.
In its February 26, 1993, Memorandum and Order, the District
Court concluded that the Stipulation and Order of September 3,
1982, did not modify the original dissolution decree and that the
statute of limitations did not bar Jody from recovering child
support due prior to August 1982. The court calculated the back
child support owed at $58,800.00 and ordered Stephen to pay child
support in the amount of $125 per child per month as ordered in the
original decree. The court allowed Stephen credits amounting to
$8,031.65, leaving a balance of $50,768.35. Stephen appeals from
this order.
The standard of review of the trial court's findings relating
to child support is that a presumption exists in favor of the trial
court, and we will not overturn its findings unless the court has
abused its discretion. In re Marriage of Nikolaisen (1993), 257
Mont. 1, 8, 847 P.2d 287, 291. Our standard of review of the trial
court's conclusions of law on such matters is whether its
conclusions are correct. Burris v. Burris (1993), Mont.
852 P.2d 616, 619.
I. MODIFICATION OF ORIGINAL DISSOLUTION DECREE
Stephen contends that the trial court erred when it ruled that
the stipulation did not modify the underlying child support
obligation established in the decree of dissolution. Jody states
that URESA is an enforcement procedure and does not modify the
underlying judgment unless so stated. We agree with Jody's
analysis of this issue.
Our decision in In re Marriage of Petranek (1992), 255 Mont.
458, 843 P.2d 784, is dispositive. In that case, noting that URESA
was adopted to "...provide an auxiliary or supplemental remedy for
the enforcement of support orders...", we stated:
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 (sic) not affected. Nor is its order
modified by an order of a court fixing another or
different sum pursuant to the URESA action. ...
... 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 URESA actions do not merge. A request
for modification of a divorce decree is separate and
distinct from an action arising under URESA.
Petranek, 8 4 3 P.2d at 786. (Citations omitted.)
In the instant case, the 1982 Stipulation provides in
pertinent part that:
IV.
This Stipulation does not act as a waiver of any legal
arrearages, totalling $ 1 6 , 4 2 5 . 0 0 through July 1 9 8 2 , only
as an agreement, that at present, URESA enforcement shall
only be obtained on the agreed amount set forth above
[ $ 6 0 per week].
The 1982 Stipulation and Order does not reference the
underlying child support award nor did either party file a motion
to modify the underlying dissolution decree. There is absolutely
nothing in the Stipulation or court Order modifying the original
child support order. The Stipulation and Order deal only with
enforcement of the support obligation contained in the original
decree of dissolution. We hold that the District Court correctly
concluded that the original dissolution decree which required
Stephen to pay $125 per child per month remained valid and was not
modified by the 1982 Stipulation and Order.
11. STATUTE OF LIMITATIONS
Stephen argues that the District Court erroneously determined
that the 1982 Stipulation tolled the 10 year statute of limitations
applicable to the enforcement of past due child support
obligations. He claims the court also erred by concluding that
periodic payments by Stephen revived the statute each time a
payment was made. Jody counters that the arrearages from prior to
August 1982 are within the statute of limitations because the URESA
action of 1982, accompanying Stipulation and subsequent periodic
support payments tolled the statute of limitations, and that,
therefore, Stephen owes all arrearages, including those due prior
to August of 1982. We conclude that the District Court's decision
was correct and affirm, although, not for the reasons expressed in
the court's Memorandum and Order. Wolfe v. Webb (1992), 251 Mont.
217, 234, 824 P.2d 240, 250.
In Marriage of Hooper (Crittendon) (1991), 247 Mont. 322, 327,
806 P.2d 541, 544, we referred to the majority rule that "each
child support payment becomes a separate, final judgment as of its
date of accrual, [and that] the statute of limitations pertaining
to final judgments applies," and quoted In re Marriage of Sabo
(1986), 224 Mont. 252, 254, 730 P.2d 1112, 1113, for the rule that
each child support payment "becomes a judgment debt similar to any
other judgment for money. " .
The statute of limitations for the commencement of an action
on a judgment is 5 27-2-201, MCA, and we have held that statute is
the appropriate statute of limitations for the commencement of
actions to enforce child support decrees. Hooper, 806 P.2d at 544.
See also Petranek, 843 P.2d at 787.
Section 27-2-201(1), MCA, provides that "the period prescribed
for the commencement of an action upon a judgment or decree of any
court of record of the United States or of any state within the
United States is within lo years."
Therefore, as each child support payment obligation comes due,
that payment obligation becomes a judgment, and the 10 year statute
of limitations commences to run on the accrual date of that
judgment with respect to an action to enforce that judgment.
In this case, applying the above rules, an action to collect
child support arrearages (judgments) would be time-barred as to
payments (judgments) accruing prior to June 19, 1982 -- 10 years
prior to the date that Jody filed her Motion for Enforcement on
June 19, 1992.
Jody, however, claims that the statute of limitations was
tolled for two reasons. First, Jody claims that the 1982 URESA
action and subsequent stipulation tolled the statute of
limitations. Second, she contends that partial payments made on
child support due also tolled the statute of limitations. The
~istrictCourt based its decision on Jody's second argument, and,
it appears, also implicitly agreed with her first argument.
In March 1982, Jody filed a URESA action for enforcement of
Stephen's support obligations because Stephen would not comply with
the child support order from the dissolution decree. In August
1982, in settlement of the URESA action, Jody and Stephen signed a
stipulation acknowledging that Stephen was in arrears for child
support in the amount of $16,425.00 through July 1982 and that
henceforth, he would pay the amount of $60 per week. On September
3, 1982, the trial court ordered that the Stipulation be entered as
an order of the court.
Jody contends that the URESA action was a suit to enforce or
collect a judgment as contemplated by 5 27-2-201, MCA, and that the
court's September 3, 1982, Order merged the various original
monthly judgments into a single new judgment as of that date. Tn
making that argument Jody cites provisions of the Uniform
Interstate Family Support Act (UIFSA), enacted at Ch. 328, L.,
1993, and effective October 1, 1993. While UIFSA replaced URESA,
with some of the earlier provisions being repealed, Jodyos action
was brought under the earlier URESA.
That aside, we do not find it necessary, for purposes of this
case, to determine whether an action brought under UIFSA or URESA
is an action to collect a judgment for purposes of renewing the 10
year statute of limitations because the September 3, 1982, Order
was not a judgment for the $16,425.00 child support arrearages
acknowledged by the parties in the Stipulation. The District Court
simply entered an order to enforce the payment provisions of the
parties Stipulation pursuant to its terms.
That is not to say, however, that the statute of limitations
was not tolled. While the Stipulation and September 3, 1982, Order
did not modify or affect the underlying judgment of the dissolution
decree, and while the Order did not create and merge into a single
new judgment, the various prior unsatisfied judgments under the
dissolution decree, by their Stipulation, the parties did
acknowledqe the existence of the unsatisfied iudqments prior to the
Stipulation. It was that acknowledgement which tolled the statute
of limitations.
Dodd v. Simon (l942), 113 Mont. 536, 129 P.2d 224, is
dispositive on this point. Dodd is factually dissimilar to the
instant case but the principle drawn from Dodd applies here. The
acknowledgement of a judgment unsatisfied, made in open court, will
toll the statute of limitations. In that case we stated:
The stipulation made on September 20, 1935, likewise had
the effect of tolling the statute limiting to ten years
the time of effectiveness of the judgment. It was an
acknowledgement of the existence of the judgment
unsatisfied, made in open court, and intended for the
court to act upon in administering the rights of the
parties with respect to the matter of possession, and as
determined by the judgment. (31 Am. Jur., Judgments,
sec. 398; annotation 21 A. L. R. 1061.) While there is
divergency of views on the question, the cases holding
that a statute limiting the time of effectiveness of a
judgment may be tolled by acknowledgment of the judgment
seem to establish the majority rule, and which we follow.
While the cases cited in the annotations above referred
to deal with judgments for the recovery of money, we can
see no reason why the rule should not be applied to
judgments for recovery of possession of real property.
[Citation omitted.]
Dodd
I 129 P.2d at 228-229.
That the rule followed in Dodd has remained viable since that
decision was handed down is, perhaps, best underscored by the
amendment of 5 27-2-409, MCA, in 1987 to provide, in pertinent part
that:
[a]n acknowledgement . . . of a debt is sufficient
evidence to cause the relevant statute of limitations to
begin running anew. . . . An acknowledgement must be
contained in some writing signed by the party charged
thereby.
Here, the Stipulation acknowledges that there exist legal
arrearages totalling $16,425.00 through July of 1982. At no time
did Stephen ever dispute the pre-August, 1982 arrearages total of
$16,425.00, and while, as he now argues, he may not have had the
intent to create or renew the prior judgments for unpaid child
support, he nevertheless, acknowledged the existence and amount of
such arrearages (judgments) in writing, in open court for the
purpose of obtaining the court's blessing on his temporarily paying
less per month than he was obligated under the dissolution decree.
Stephen signed this Stipulation and the Stipulation was then
entered as an order of the court without any qualification on his
part as to the existence or amount of the arrearages set forth in
the Stipulation.
Stephen cannot have it both ways. He cannot, on the one hand,
stipulate in writing, in open court as to the existence and amount
of his child support arrearages in order to gain the advantage of
the Stipulation and Order, and, on the other hand, then deny the
legal effect of his admissions. Under the circumstances, we
conclude that the Stipulation was an acknowledgement by Stephen of
pre-August 1982 child support judgments, unsatisfied, made in open
court, and, that under the rule expressed in m, that
acknowledgement served to toll the statute of limitations
applicable to the enforcement of each unsatisfied monthly child
support judgment not already time-barred.
Since the dissolution degree was entered on July 23, 1979,
none of the unsatisfied monthly child support judgments were yet
time-barred in 1982, and, accordingly, the 10 year statute of
limitations commenced to run anew on all such judgments through
July 1982, on the date Stephen signed the Stipulation and
acknowledged such unsatisfied judgments in open court.
Accordingly, Jody's Motion to Enforce the Dissolution Decree, filed
June 19, 1992, was within the 10 year statute of limitations for
the commencement of an action to collect or enforce a judgment.
We, therefore, hold that the District Court was correct in
including the full amount of Stephen's child support arrearages
through July 1982, amounting to $16,425.00, in its calculation of
past due child support.
Having determined that Jody's enforcement action as to all of
Stephen's delinquent child support payments was not time-barred and
that the District Court correctly included all of Stephen's
unsatisfied child support obligations in its calculation of past
due support, we do not reach Jody's second argument, or the
District Court's determination that the statute of limitations was
tolled by Stephen's partial payments of child support made
periodically to Jody.
111. STEPHEN'S PAST AND CURRENT CHILD SUPPORT OBLIGATIONS
We find no abuse of discretion or legal basis on which to
overturn the District Court's calculation of Stephen's past and
current child support obligations as set forth in its Memorandum
and Order dated February 26, 1993.
AFFIRMED.
We Concur: