In Re Marriage of Cowan

NO. 96-083
IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

IN RE MARRIAGE OF
JOYCE S. COWAN,
Petitioner and Respondent,
and
ARDEN R. COWAN,
Respondent and Appellant.

APPEAL FROM: District Court of the Twenty-First Judicial
District, In and for the County of Ravalli
The Honorable Frank M. Davis, Judge presiding

COUNSEL OF RECORD:
For Appellant:
John H. Gilliam, Skjelset & Gilliam, P.L.L.P.,
Missoula, Montana
For Respondent:
Clinton H. Kammerer, Kammerer Law Offices,
Missoula, Montana

Submitted on Briefs: September 19, 1996
Decided: November 26, 1996
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
On April 4, 1995, Arden Cowan moved the District Court for the

Twenty-First Judicial District in Ravalli County to modify his

child support obligation. His former spouse, Joyce Cowan, opposed

the motion and filed a motion to have Arden held in contempt for

failure to pay past support. Following a hearing at which both

motions were considered, the District Court increased Arden's child

support obligation from $250 to $762 per month. The District Court

refused to reduce Arden's arrearages by the amount recommended by

the Child Support Enforcement Division (CSED) , and refused to

credit certain Social Security benefits against his past due

obligation. The District Court also denied Joyce's motion to hold

Arden in contempt. Arden appeals the District Court's order which

modified his child support obligation and which refused to grant

him credit against his arrearages. We affirm in part and reverse

in part the order of the District Court and remand to that court

for a determination of Arden's child support obligation consistent

with this opinion and with the Uniform Child Support Guidelines.

We address five issues on appeal:

1. Did the District Court abuse its discretion when it

modified Arden's child support obligation without considering the

factors set forth in § 40-4-204, MCA, and the Uniform Child Support

Guidelines?

2. Did the District Court err when it refused to apply the

monthly Social Security disability payments made to Arden's

children toward Arden's monthly child support obligation?

2
 3. Did the District Court err when it refused to apply the

monthly Social Security disability payments made to Arden's two
children in excess of Arden's support obligation as a credit toward

his accrued arrearages?

4. Did the District Court err when it refused to apply the

Social Security lump sum disability payment made to Arden's two

children as a credit toward his accrued arrearages?

5. Did the District Court err when it refused to reduce

Arden's accrued arrearages by $1,593.20, as recommended by the

Child Support Enforcement Division?
FACTUAL BACKGROUND

In 1982, the District Court for the Twenty-First Judicial

District dissolved the marriage of Arden and Joyce Cowan and

awarded Joyce monthly child support in the amount of $100 per child

for each of the couple's two children. Joyce filed a petition for

modification of child support on December 5, 1988, and the District

Court increased Arden's child support obligation to $200 per month

per child beginning June 15, 1989.

In January 1994, Joyce filed a motion in the District Court to

have Arden held in contempt for his failure to keep his child

support obligation current. At that time, Arden's past due child

support amounted to $17,700, and he owed an additional $800 for

attorney fees. Following a hearing at which Joyce's motion was

considered, the District Court adjudged Arden in contempt of court

and entered a judgment against Arden in the amount of $18,550.

However, based on its finding that Arden had been "beset with

3
financial hardships attributable to health and unemployment," the

court reduced Arden's child support obligation to $250 per month

for both children.

Arden filed a motion to further modify his child support

obligation in April 1995. By that time, the Social Security

Administration (SSA) had determined that he had been disabled since

November 1992 and had awarded him monthly benefits in the amount of

$924, retroactive to May 1993. The SSA had also awarded Arden's
children $512 per month retroactive to the same date. Based on the

Social Security payments, Arden alleged in his petition that his

child support should be modified because of "changed circumstances

so substantial and continuing as to make the terms [of the decree1

unconscionable," pursuant to § 40-4-208, MCA. Specifically, Arden

maintained that (1) his child support obligation should be modified

to conform to the Uniform Child Support Guidelines; (2) his support

obligation should be modified to reflect a credit for Social

Security disability benefits paid to the children; and (3) any

Social Security disability benefits received by his children that

exceeded his support obligation should be applied as a credit

against his accrued arrearages.

Before Arden filed his motion for modification of his child

support obligation, the SSA delivered to him two lump sum payments

totaling $19,456.00 for Social Security benefits earned from the

date of his entitlement to the date of payment. After Arden filed

his motion, the SSA sent to Joyce a lump sum payment of $9,728.00

representing benefits to the children as a result of Arden's

4
disability. In addition, the CSED determined that Arden's child
support arrearages should be reduced by $1,593.20.
Following the distribution by the SSA of the lump SUlll

payments, and the recommendation by CSED that Arden's arrearages be

reduced, Arden filed a brief in support of modification of his

child support obligation. In his brief, Arden contended that both

the lump sum payment received by his children and the amount of

monthly Social Security payments paid in excess of his child

support obligation should be credited against his accrued
arrearages. Arden further contended that those accrued arrearages

should be reduced by the amount recommended by the CSED.

Following a hearing at which Arden's motion to modify his

child support obligations and Joyce's motion for contempt were

considered, the District Court issued its findings of fact,

conclusions of law, and order. In its order, the court modified

Arden's child support obligation from $250 per month to $762 per

month. Although the court did not specifically address the

reduction of Arden's arrearages by either the amount recommended by

the CSED or by the amounts paid for Social Security benefits, the

court stated that it U [found] generally for Joyce and against Arden

on all issues not specifically addressed herein." The District

Court denied Joyce's motion to hold Arden in contempt.

STANDARD OF REVIEW

We review a district court's findings of fact and conclusions

of law which underlie an order for the modification of child

support to determine whether the court's findings of fact are

5
clearly erroneous and whether its conclusions of law are correct.

InreMauriageofBvandon (19951, 271 Mont. 149, 151-52, 894 P.2d 951,

952-53. We review the court's decision to modify child support to

determine whether the court abused its discretion. In re Marriage of

Kovash (1995), 270 Mont. 517, 521, 893 P.2d 860, 863.

ISSUE 1

Did the District Court abuse its discretion when it modified

Arden's child support obligation without considering the factors

set forth in 5 40-4-204, MCA, and the Uniform Child Support

Guidelines?

On April 4, 1995, Arden Cowan filed a motion for modification

of his child support obligation. Arden maintained that his

circumstances had changed substantially, as evidenced by the SSA's

determination in January 1995 that he is totally disabled. Because
his disability precludes meaningful employment, Arden asserted that

his child support obligation of $250 per month was "unconscionable"

and should be reduced to conform with the Montana Child Support

Guidelines.

It is well established that "[wlhenever the court issues or

modifies an order relating to child support, the district court is

required to determine the child support obligation on the basis of

the factors set out in 5 40-4-204(l) and (2), MCA, and the Uniform

Child Support Guidelines." InreMarriageofWnckler (1993), 258 Mont. 12,

15, 850 P.2d 963, 965. In this case, the District Court's specific

obligations with respect to Arden's child support determination are

setforthin § 40-4-204, MCA (19931, whichprovidesinpertinentpart:

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 (2) The court shall consider all relevant factors,
including:
(a) the financial resources of the child;
(b) the financial resources of the custodial parent;
(cl the standard of living that the child would
have enjoyed had the marriage not been dissolved;
(d) the physical and emotional condition of the
child and the child's educational and medical needs;
(e) the financial resources and needs of the
noncustodial parent;
(f) the age of the child;
(g) the cost of day care for the child;
(h) any custody arrangement that is ordered or
decided upon; and
(i) the needs of any person, other than the child,
whom either parent is legally obligated to support.
(3) (a) Whenever a court issues or modifies an
order concernins child support, the court shall determine
the child suooort oblisation bv auolvinq the standards in
this section and the uniform child support guidelines
adopted by the department of public health and human
services pursuant to 40-5-209. The guidelines must be
used in all cases . . . The amount determined under
the guidelines is presumed to be an adequate and
reasonable support award, unless the court finds by clear
and convincing evidence that the application of the
standards and guidelines is unjust to the child or to any
of the parties or is inappropriate in that particular
case.
(b) If the court finds that the guideline amount is
unjust or inappropriate in a particular case, it shall
state its reasons for finding that the application of the
standards and guidelines is unjust to the child or a
party or is inappropriate in that particular case.
Similar reasons must also be stated in a case in which
the parties have agreed to a support amount that varies
from the guideline amount. Findings that rebut and vary
the guideline amount must include a statement of the
amount of support that would have ordinarily been ordered
under the guidelines.

(Emphasis added.)

In this case, the District Court modified Arden's child

support obligation based upon its conclusion that "$762.00 per

month contribution is reasonable considering all the

circumstances." However, the court made no finding regarding

Arden's yearly income and admitted that it fl [had] no data as to

7
Joyce's income." The court, in fact, made no attempt to apply the
Uniform Child Support Guidelines. or to consider the factors set

forth in 5 40-4-204, MCA. Instead, the court cavalierly stated:

"Whether [the $762 monthly obligation] meets the criteria of the so

called mandatory guide lines, the Court will leave to the Child

Support Enforcement Division."

We have repeatedly held, however, that the district court must

consider the Uniform Child Support Guidelines and the statutory

criteria set forth at § 40-4-204, MCA, when it makes its child

support determination. See, e.g., Brandon, 271 Mont. at 154, 894 P.2d

at 954; InreMarriageofGrifJin (1993), 260 Mont. 124, 140, 860 P.2d 78,

8 8 ; Wackier , 258 Mont. at 15, 850 P.2d at 965. The purpose of that

requirement is to ensure that there is an evidentiary basis upon

which a court's child support determination is based. In re Marriage

ofKukes (1993), 258 Mont. 324, 328, 852 P.Zd 655, 657. Failure to

set forth findings that demonstrate that the statutory criteria

have been considered is a clear abuse of discretion. Gr@in, 260

Mont. at 140, 860 P.2d at 88.

In this case, the District Court failed to set forth any

factual basis to support its conclusion that Arden's child support

obligation should be increased to $762 per month. Furthermore,

those findings that the court did make with regard to Arden's

ability to contribute to his children's support were not supported

by substantial credible evidence. For example, although the court

found that Arden was capable of contributing $250 per month from

his self-employment income, the evidence submitted at trial

8
.
demonstrated that Arden had only earned a cumulative total of $700
to $1,000 in the twenty months preceding the district court
hearing. In addition, although the court found that Arden had

regularly worked as a professional hunting guide and as an
electrician, Arden testified that he had never received any
monetary payment for his services as a guide and that he had only

earned about $1,000 performing odd jobs as an electrician.

Clearly, the evidence submitted at trial did not establish Arden's

capacity to contribute $250 monthly in addition to Social Security

benefits his children were already being paid.

Therefore, because the District Court failed to apply the

Uniform Child Support Guidelines and 5 40-4-204, MCA, when it
ordered the modification of Arden's support obligation, and because

those findings that the District Court did make with regard to

Arden's ability to contribute to his children's support were not

supported by substantial credible evidence, and were, therefore,

clearly erroneous, we hold that the District Court abused its

discretion when it modified Arden's monthly child support

obligation from $250 to $762. We therefore reverse the District

Court's order modifying Arden's child support obligation and remand
to that court with instructions that the court consider the Uniform

Child Support Guidelines, the factors listed in 5 40-4-204, MCA, f~

and Rule 46.30.1542, ARM, and enter findings of fact which support

its child support award.

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 ISSUE 2

Did the District Court err when it refused to apply the
monthly Social Security disability benefits paid to Arden's

children toward Arden's monthly child support obligation?

In this case, the District Court concluded that Arden's child

support obligation should be adjusted to $762 per month--$512 to be

paid from the Social Security disability payments and $250 to be

paid by Arden. The court's order did not alter Arden's standard

$250 monthly obligation, but, in effect, denied Arden the

opportunity to offset that obligation with the Social Security
disability payments. On appeal, Arden maintains that the Social

Security disability benefits received by his children should have

been credited against the amount of his monthly obligation, as

required by this Court in InreMnrriageofDurbin (1991), 251 Mont. 51,

823 P.2d 243.
In Durbin, this Court held that the receipt of Social Security

benefits by a child based on a parent's disability following a

dissolution of marriage should serve as a credit toward that

parent's child support obligation. Durbin, 251 Mont. at 58, 823

P.2d at 247. We concluded, however, that such an offset

constituted a modification of the original child support decree,

pursuant to § 40-4-208(l), MCA, and limited the application of the

credit to those payments which accrued after the petition for

modification of child support had been filed. Durbin, 251 Mont. at

58, 823 P.2d at 247. Accordingly, we held that the non-custodial

father in Durbin was entitled to a credit for those Social Security

10
benefits received by his children after he had filed a motion to
modify his child support obligation, but denied him credit for
those benefits received prior to the date on which he filed his

petition. Dtrrbin , 251 Mont. at 58, 82.3 P.2d at 247. Our holding

was based, in part, on the language of § 40-4-208(l), MCA, which

provides that a dissolution decree can be modified "only as to

installments accruing subseauent to actual notice to the parties of

the motion for modification." (Emphasis added.)
Upon further review of Durbin, however, we are persuaded that

we were incorrect when we concluded that an offset of a child

support obligation by Social Security benefits constitutes a

modification of the original child support order. As this Court

noted in Durbin,Social Security benefits are paid as a result of a

parent's disability and serve as a substitute for that parent's

lost earning capacity. Durbin, 251 Mont. at 58, 823 P.2d at 249.

As such, those payments are simply a replacement for a parent's

lost wages due to an acknowledged disability. Thus, a credit for

those Social Security benefits does not retroactively modify the

disabled parent's monthly child support obligation; it merely

changes the source of the payments. Therefore, although we affirm

that portion of Duvbin which allowed a credit against a noncustodial

parent's child support obligation for Social Security benefits

received by his children, we reverse that portion of the opinion

which held that a credit for Social Security benefits received
prior to the motion to modify would constitute a retroactive

modification of the district court's original child support order.

11
We also reverse InreMa~riageofMalquisi (1994), 266 Mont. 447, 880 P.2d

1357, to the extent that it adopted Durbin’s rationale.

A majority of states follows the rule that Social Security
benefits received as a result of a parent's disability do not

modify a parent's original child support obligation. See, e.g., Perteet

v.Sumner (Ga. 19801, 269 S.E.Zd 453; InreManiageofHmry (Ill. 1993),

622 N.E.2d 803; Boavdv. Board (Ky. 1985), 690 S.W.Zd 380; Mooneyhamv.

Mooneyham (Miss. 1982), 420 So. 2d 1072; We&v. Wenks (MO. 1991), 821

S.W.Zd 503; Hanthornv.Hanthorn (Neb. 1990), 460 N.W.2d 650; Gr@nv.Avery

(N.H. 19801, 424 A.2d 175; Mu~kv. Mask (N.M. 1980), 620 P.2d 883.

The Illinois Supreme Court, for example, has acknowledged that

Illinois law provides for modification of only future child support
installments, but has held that "a distinction exists between

'crediting an obligation with payment made from another source and

increasing, decreasing or terminating, or otherwise modifying a

specific dollar amount."' Henvy , 622 N.E.2d at 808. Based on its

conclusion that the substitution of Social Security benefits is" not

a retroactive modification of child support, the court has

concluded that

because social security dependent disability benefits are
earned by the noncustodial parent, made on behalf of such
parent, and, in fact, paid at least in part with
contributions from the noncustodial's own earnings,
payment of social security dependent disability benefits
satisfies a noncustodial parent's child support
obligation.

Henry, 622 N.E.Zd at 809.

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 Other courts have rejected Dtrrbin’s rationale that there need

be a modification of the original divorce decree before Social

Security payments can be credited toward a parent's support
obligation. The Missouri Supreme Court, for example, has held that

the minority view, as set forth in Durbin, is "harsh and unjust."

Weaks, 821 S.W.Zd at 506. That court stated:

A minority of states follows the rule that a credit
for social security disability payment is available
against the child support obligation only aflier a
modification by the trial court.

. .

This view, followed by a distinct minority of
jurisdictions, is harsh and unjust. To impose the
requirement of a court proceeding, i.e., modification
hearing, on a party seeking to credit disability payments
received by the custodial parent for the benefit of the
parties' children is overly harsh. In situations
involving disability benefits, the party seeking credit
most likely faces a reduction of income, financial
uncertainty, physical or mental impairment and other
attendant consequences of the disability. The additional
burden of petitioning the court for a modification
typically wastes time and money and helps no one.

Weaks, 821 S.W.Zd at 506-07.

In this case, the Social Security benefits received by Arden's

children were paid as a result of Arden's disability and were a

substitute for Arden's lost earning capacity. Accordingly, we hold

that those benefits should be treated as a contribution from Arden

toward the support of his children and should serve as a credit

toward Arden's monthly obligation. We further hold that the

substitution of the Social Security benefits for Arden's child

support obligation does not constitute a retroactive modification

of the District Court's original child support order, and was

13
therefore immediately effective as a credit against Ardenls child

support obligation.
In this case, because Arden's monthly $250 child support

obligation was completely offset by the monthly $512 Social
Security benefit paid to his children, we hold that Arden was not

liable for any contributions after the Social Security benefits

began. We therefore hold that Arden should be credited for any

contributions made by him personally since that time and that those

credits should be applied to Arden's accrued arrearages. See, e.g.,

Mllerv.Mller (Ky. Ct. App. 1996), 929 S.W.2d 202, 205.

On the basis of our holdings, we reverse the District Court's

order which denied Arden the opportunity to offset his obligation

with the Social Security disability benefits received by his

children and remand to the District Court with instructions to

(1) credit the Social Security benefits received by Arden's
children against Arden's monthly child support obligation, and to

(2) credit Arden for any contributions made by him after the Social

Security benefits began and apply that credit to any arrearages

owed by Arden.
ISSUE 3

Did the District Court err when it refused to apply the

monthly Social Security disability payments made to Arden's two

children in excess of Arden's support obligation as a credit toward

his accrued arrearages?
In this case, the District Court did not apply the Social

Security disability payments received by Arden's children as a

14
credit toward Arden's support obligation, but instead increased
Arden's obligation to a sum equal to the total of his $250 monthly

support obligation and the $512 monthly Social Security benefit.

On appeal, Arden maintains that the District Court should have

offset his $250 monthly obligation with the $512 Social Security

payment and credited the remaining $262 per month to his existing

arrearages.

Although the question of excess benefits has not yet been

addressed by this Court, the majority of jurisdictions faced with

this issue have not allowed the application of excess benefits to

reduce arrearages. See, e.g., Windham v. St&e ex rel. Windham (Ala Civ . App .

1990), 574 So. 2d 853; InreMarringeofRobinson (Cola. Ct. App. 1982),

651 P.2d 454; Kiiwanv.Kirwan (Fla. Dist. Ct. App. 1992), 606 So. 2d

771; Newmanv.Newman (Iowa lPPO), 4 5 1 N . W.2 d 8 4 3 ; In w Marriage of Williams

(Kan. 1995), 900 P.2d 860; Wenksv. Weaks (MO. 1991), 821 S.W.2d 503;

Fuller v. Fuller (Ohio Ct. App. 1976) , 360 N.E.2d 357; Children& YouthSews.

v. Chorgo (Pa. Super. Ct. 1985), 491 A.2d 1374. Those courts reason

that "[a]ny excess is deemed a gratuity to the extent that it

exceeds the amount of support mandated by the decree." We&s, 821

S.W.2d at 507.

This view is consistent with the administrative rules of the

Department of Public Health and Human Services. Specifically,

Rule 46.30.1542(l) (b), ARM, which the Department was authorized to

adopt pursuant to 5 40-5-202(12), MCA, provides:
(1) Social security benefits which are based on the
earning record of the non-custodial parent shall be

15
 considered in establishing new support orders or
modification of existing orders under the following
conditions:
. .
(b) the parent's obligation is satisfied if the
amount of the of the child's benefit for a given month is
equal to or greater than the parent's child support
obligation. Any benefit received by the child for a
qiven month in excess of the child suooort obligation is
not'treated as an arrearaqe payment or as future support
. .

(Emphasis added.)
In accord with the other jurisdictions cited that have

addressed this issue, and with Rule 46.30.1542(l) (b), ARM, we hold

that Arden is entitled to credit for the amount of his monthly

obligation for child support, but not exceeding that amount.

Therefore, although we hold that the District Court abused its

discretion when it failed to apply the Social Security benefits

received by Arden's children toward Arden's monthly support

obligation, we further hold that it did not abuse its discretion

when it failed to apply any excess monthly benefits to Arden's

accrued arrearages. We therefore affirm that part of the District

Court's judgment.

ISSUE 4

Did the District Court err when it refused to apply the Social

Security lump sum disability payment made to Arden's two children

as a credit toward his accrued arrearages?

In this case, the District Court made no specific

determination that the Social Security lump sum benefits received

by Arden's children should or should not be credited toward Arden's

accrued arrearages. Instead, the court made a sweeping finding

16
"against Arden on all issues not specifically addressed" in its
order. On appeal, Arden maintains that the District Court abused

its discretion when it failed to grant him credit for a Social

Security lump sum disability payment of $9,728 paid to Joyce for

his children.

As we stated above, Social Security disability benefits are

paid as a result of a parent's disability and serve as a substitute
for that parent's lost earning capacity. In this case, the $9,728
lump sum Social Security payment was paid to Arden's children to
compensate them for overdue benefits for the period from May 1993,

the date of Arden's eligibility, through the date when their

monthly Social Security benefit payments commenced. They were paid

in recognition of Arden's inability to earn income since November

1992. As such, that lump sum was an accumulation of monthly Social

Security payments which accrued for the children's benefit. The

lump sum payment, then, like the other monthly Social Security

disability payments, should have been credited to Arden's monthly
child support obligation for the months during which the lump sum

accumulated. See, e.g., Romero v. Romero (N.M. Ct. App. 1984), 682 P.2d

201, 202.

This interpretation is supported by Rule 46.30.1542(l) cd),
ARM, which provides:

(1) Social security benefits which are based on the
earning record of the non-custodial parent shall be
considered in establishing new support orders or
modification of existing orders under the following
conditions:
. .

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 Cd) whenever a custodial parent receives for the
benefit of the child, a lump sum payment which represents
an accumulation of monthly benefits:
(i) the lump sum payment should not be treated as
income of the parent;
(ii) the lumr, sum should be credited to the child
suooort oblisation for each month a payment accumulated
for the child's benefit .

(Emphasis added.)

We hold that the lump sum payment received by Joyce for the

benefit of her children should have been credited to Arden's child

support obligation from May 1993 until the monthly benefits

commenced. We further hold that, since those benefits completely

offset Arden's monthly support obligation, any support payment made

by Arden during that time was in addition to his actual obligation
and should now be credited to his accrued arrearages. Accordingly,
we reverse the order of the District Court which refused to apply

the Social Security lump sum disability payment made to Arden's two
children as a credit toward Arden's accrued arrearages. We remand

to the District Court with instructions to (1) apply the lump sum

toward any arrearages which accrued during the period of Arden's

disability and prior to the commencement of monthly Social Security

payments to Arden's children, and to (2) credit Arden's accrued

arrearages by the amount of child support paid directly by Arden

during that period.
ISSUE 5

Did the District Court err when it refused to reduce Arden's

accrued arrearages by $1,593.20, as recommended by the Child

Support Enforcement Division?

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 On May 19, 1994, the District Court entered an order in which
it determined that Arden owed child support arrearages in the

aggregate of $17,200.00, in addition to $850 for attorney fees and

$500.00 for past due arrearages, for a total judgment of
$18,550.00. In April 1995, Arden applied to the CSED for a credit

of $4,020.88 against his past-due obligation. Following a review

of Arden's application, CSED granted him credit in the amount of

$1,593.20.

In his memorandum in support of his petition for modification

of child support, Arden maintained that the District Court should
reduce his accrued arrearages by the amount credited by CSED. In

support of his claim, Arden submitted WED's letter granting him a

credit in the amount of $1,593.20 and CSED's debt computation
worksheet which showed Arden's accrued arrearages in the amount of

$15,467.87.l

In its order modifying Arden's child support obligation, the

District Court did not acknowledge CSED's determination that

Arden's past-due arrearages should be reduced. Although the court

did not directly address the issue, it stated:

All prior orders of this Court except as may be
modified herein shall remain in full force and effect.
This includes but is not limited to the iudqment for
child support arrearaoe in the amount of $18,550.

'CSED's computation does not include either the $850 in
attorney fees or the $500 in past due arrearages which the District
Court determined that Arden owed in its order of May 19, 1994.

19
(Emphasis added.) The court allowed, however, that either Arden or
Joyce could have the court's child support award "adjusted by the
CSED. U

The District Court's refusal to apply a credit to Arden's

child support arrearages in the amount of $1,593.20, as allowed by

CSED, was clearly an abuse of discretion. Section 40-5-601(6),

MCA, provides that:

Certified payment records maintained by a clerk of
court or administrative agency authorized by law or by
the support order to collect support are admissible in a
[civil contempt] proceeding under this section and are
prima facie evidence of the amount of support paid and
any arrearages under the support order.

In this case, the Child Support Enforcement Division of the

Department of Social and Rehabilitation Services (now the
Department of Public Health and Human Services) filed a notice of

registration, pursuant to § 40-5-271, MCA, of the District Court's

order of May 19, 1994. Section 40-5-271(4), MCA, provides that

once an order is registered by CSED it "must be treated in the same

manner and have the same effect as a support order issued by the

department." CSED was therefore authorized by law to collect

Arden's child support obligation. Accordingly, pursuant to

§ 40-5-601(6), MCA, its payment records were prima facie proof of

Arden's accrued arrearages.

At the District Court's concomitant hearing on Arden's motion

for child support modification and Joyce's motion for contempt,

Arden submitted CSED's letter granting him a credit in the amount
of $1,593.20 and CSED's debt computation worksheet which showed

Arden's accrued arrearages in the amount of $15,467.87. The

20
exhibits were not objected to as hearsay and were admitted. Both
exhibits constituted prima facie proof, pursuant to § 40-5-601(6),
MCA, that Arden's accrued arrearages pursuant to the District

Court's order of May 19, 1994, had been reduced by $1,593.20.

Because Joyce submitted no evidence to refute that proof, the
District Court was required to accept CSED's determination of

Arden's accrued arrearages, which CSED had calculated should be

reduced by $1,593.20.

We therefore hold that the District Court abused its
discretion when it reaffirmed its judgment against Arden for child

support arrearages in the amount of $18,550.00, without considering

CSED's calculated reduction of Arden's arrearages. We remand to

the District Court with instructions to include in its order

modifying Arden's child support a reduction of his accrued

arrearages by $1,593.20, as calculated by CSED.
On the basis of our holdings, we affirm in part and reverse in

part the child support modification order of the District Court and

remand to that court for a determination of Arden's child support

obligation consistent with this opinion, the Uniform Child Support

Guidelines, and Rule 46.30.1542, ARM.

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