No. w-587
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
IN RE THE MARRIAGE OF
THOMAS R. GLANVILLE,
Petitioner and Appellant,
and
PATRICIA DIANE GLANVILLE,
Respondent and Respondent.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Ted o. Lympus, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Paula Johnson, Attorney at Law
Whitefish, Montana
For Respondent:
H. James Oleson; Oleson Law Firm,
Kalispell, Montana
Submitted on Briefs: March 30, 1995
Decided: July 6, 1995
Filed:
clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court
Thomas R. Glanville appeals from an order of the District
Court for the Eleventh Judicial District, Flathead County,
modifying child custody and support. We affirm.
The issue is whether the District Court erred in requiring
Thomas R. Glanville to pay back child support from July 1991
through August 1992.
The marriage of Thomas R. Glanville (the father) and Patricia
Diane Glanville (the mother) was dissolved in April 1988 in San
Luis Obispo County, Superior Court of California. They agreed to
joint legal custody of their two school-age children. Under a
modified order entered in November 1990 (apparently after the
father moved to Montana), the mother would have physical custody of
the children until June of 1991. The father would then assume
physical custody until the summer of 1992, when the court would
review the matter. Under the modified decree, the father was to
pay the mother child support of $400 per month.
In June of 1991, the children came to Whitefish, Montana, to
live with their father. The planned review by the California court
in the summer of 1992 did not occur. Instead, at the children's
request, they remained in Whitefish with their father except for
Christmas holiday and summer visitation with their mother.
In November 1992, the father filed in the Eleventh Judicial
District Court, Flathead County, an affidavit and petition for
modification of custody, visitation, and support. He asked the
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court to grant him primary residential custody of the children,
subject to reasonable visitation with the mother. He also asked
that the mother be ordered to pay him child support retroactive to
January 1992.
A hearing was held before a special master on June 10, 1993.
Adopting the special master's recommendations in their entirety,
the court accepted jurisdiction and modified the order of the
California court to provide that the children shall reside with
their father and have reasonable visitation with their mother. It
ordered the mother to pay child support of $150 per child per month
retroactive to August 1992. The court ruled that the father's
obligation to pay child support under the California decree
continued until August 1992. The father had paid no child support
to the mother since October of 1990. Calculating the resulting
support liability of each party, the court ordered the father to
pay the mother $4,820.38 in back child support.
Did the District Court err in requiring the father to pay back
child support from July 1991 through August 1992?
The father argues that he should not be required to pay the
mother child support for time during which the children lived with
him. Rather, he argues that he is entitled to child support
payments from the mother for that period. His view as to the
effective date for this has varied. On appeal, he contends the
mother should be required to pay him child support from July 1991
forward. As stated above, his petition for modification asked that
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she be required to pay child support retroactive to January 1992.
At the hearing, he testified that she should be required to pay
support retroactive to May 1992
Section 40-4-208(l), MCA, provides:
Except as otherwise provided in 40-4-201(6), MCA,
[concerning the terms of a separation agreement] a decree
may be modified by a court as to maintenance or support
only as to installments accruing subsequent to actual
notice to the parties of the motion for modification.
Under the above statute, the earliest date to which the District
Court could have retroactively modified the California decree would
be November 1992, when the father filed his motion for modifica-
tion. The father argues, however, that the mother is equitably
estopped from seeking back child support from him.
A series of Montana cases has established that, upon
compelling evidence, the doctrine of equitable estoppel may
override the provisions of § 40-4-208, MCA. See In re Marriage of
Sabo (1986), 224 Mont. 252, 256, 730 P.Zd 1112, 1114. 'I [Tlhe
equitable principle arises when the [party against whom it is
applied] has expressly or impliedly consented to an arrangement
other than the payment of the judgment." In re Marriage of Cook
(1986), 223 Mont. 293, 299, 725 P.2d 562, 566.
[1]n Montana a decree for support may be modified on
equitable grounds by a court where there is clear and
compelling evidence of the terms of an oral agreement of
modification. . [Sluch modification may be applied
only to maintenance and support payments to be made
subsequent to the oral agreement for modification.
In re Marriage of Jensen (19861, 223 Mont. 434, 439, 727 P.2d 512,
515-16.
This Court's standard of review of an equitable decision is as
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provided by 5 3-2-204(5), MCA. This Court has interpreted that
standard as follows:
[Wle are guided by a number of principles established by
this Court. The credibility of witnesses and the weight
to be given their testimony are matters for the District
Court's determination in a nonjury case. Thus, in
examining the sufficiency of the evidence, we must view
the same in a light most favorable to the prevailing
party, and we will presume the findings and judgment by
the District Court are correct. We will not overturn the
findings and conclusions of the District Court unless
there is a decided preponderance of the evidence against
them, and when the evidence furnishes reasonable grounds
for different conclusions, the findings of the District
Court will not be disturbed. The burden of proof is on
the appellant.
Lumby v. Doetch (1979), 183 Mont. 427, 431, 600 P.2d 200, 202 (cit-
ations omitted throughout).
Contrary to the suggestion of the dissent, the facts of this
case are not indistinguishable from those in m. In -I
Sabo the
decree of dissolution gave the mother sole custody of the children,
but, by later agreement of the parties, two of the children lived
with the father. m, 730 P.2d 1112-13. Here, the dissolution
decree provided for joint legal and shared physical child custody.
The distinction is important to a determination of whether the
parties have agreed to vary the terms of the dissolution decree so
that equitable estoppel may apply
During the time for which the father now seeks to be relieved
from an obligation of support, July 1991 to August 1992, the
children lived with him. For most of that period, however, this
physical custody arrangement did not differ from that specified in
the California court's November 1990 order. Under that order, the
children were to spend the 1991-92 school year with their father
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and the father's obligation for child support was to continue.
Because the father has not demonstrated an agreement for an
arrangement which differed from the California court's order
concerning the 1991-92 school year, we conclude that equitable
estoppel is not applicable for that period.
At the hearing before the special master, the father intro-
duced into evidence a letter he received from the mother in May
1992. She wrote:
Since they've both expressed the wish to go to school
there, I guess 1'11 have to live with it.
The father testified that he felt the mother owed him child support
from May 1992 forward. However, the mother testified that it was
not until August of 1992, after she had spent the summer with her
children, that she finally agreed that they could remain in Montana
with their father.
In sum, the evidence of an agreement prior to August of 1992
to modify the California decree is conflicting and can hardly be
termed "clear and compelling." The special master found that an
agreement to modify the California decree occurred in August of
1992. That finding is supported in the record. The District Court
relieved the father of his child support obligation from August
1992 forward.
Absent circumstances justifying the application of equitable
estoppel prior to August 1992, and without other statutory
authority to retroactively modify the California court's decree, we
conclude that the District Court did not err in requiring the
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father to pay back child support due between July 1991 and August
1992.
Affirmed.
Chief Justice
We concur:
Justices
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Justice Terry N. Trieweiler dissenting.
I dissent from the majority opinion. The facts in this case
are indistinguishable from those in InreMarriage ofSabo (1987), 224
Mont. 252, 730 P.2d 1112, and our decision in that case compels
reversal of the District Court's order.
In the November 13, 1990, order from the Superior Court of the
State of California, Thomas was given custody of this couple's two
children beginning in the summer of 1991 and through the 1991-92
school year. In what was anything but a thorough or comprehensive
order, the following was the only reference to child support:
Child support in the amount of $400.00 is ordered
for both children, payable from Respondent to Petitioner,
one-half on the first and one-half on the 15th of each
month, commencing October 1, 1990 and continuintgl until
further court order or legal cause.
(Emphasis added.)
There was no further review of the California order because
toward the conclusion of the 1991-92 school year, Diane wrote to
Thomas and agreed that the children could remain with him during
the next school year. In that regard, she stated that:
Since they're [sic] both expressed the wish to go to
school there (Whitefish) I guess I'll have to live with
it, but we (the kids and I) need to be together as much
as we can.
In effect, Thomas has had the responsibility for raising and
supporting his children since June 21, 1991. Diane neither claimed
child support during that time, nor for that period of time at the
hearing which was held in Montana pursuant to Thomas's motion to
modify. She claimed support for only the period from October 1,
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1990, until June 21, 1991, when the two children moved to Montana
to live with Thomas. She gave the following testimony in response
to questions from her own attorney:
Q. So its your position, then that Mr. Glanville owes
you that $3200?
A. Yeah, but it's more than that.
Q. Because of the 21 days in June?
A. Right. Yeah.
Q. And that's what you're asking that the court find
is the $3200 plus for the 21 days?
A. Yes.
Q. How much is that per day?
A. I think it was $13.33 a day.
Q. So if my calculator is right, that's an additional
$279.93?
A. Uh-huh. Yes.
Q. So it's your position then that he owes $3479.93?
A. (Witness nodded.)
Clearly then, by her "assent and conduct" Diane consented to
modification of the couple's custody arrangement and child support
obligation long before Thomas's motion to modify was filed in
November 1992. Whether or not it is equitable to require a parent
to pay his or her former spouse child support during periods of
time when the couple's children are already living with and being
supported by the parent from whom the obligation is claimed, was
previously decided by this Court in MarriageofSabo. In that case, we
decided the following issue:
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Is a non-custodial father, who assumes permanent
custody and support of the children with the consent of
the custodial mother, relieved of the obligation to pay
child support accruing after and during the consensual
assumption of custody?
Marriage of Sabo , 730 P.2d at 1113
We answered our own question in the affirmative. Because the
facts in that case were so remarkably similar to those in this
case, citation to substantial portions of our opinion is warranted:
Thomas Sabo accepted the children into his home and
raised the children without any support from Stephanie,
even though she was employed as a real estate agent after
her return to Bozeman. Stephanie never asserted that her
current request was founded upon any actual need of her
children. Furthermore, she never suggested any implied
need which had not been satisfied over the years, or
which had now arisen and could possibly serve to validate
her action at this belated point. See [State of Washington ex
rd.] Blake&e [v. Horton], 72 2 P .2d at I I.5 I .
Although Thomas took no action to change the terms
of the divorce decree, he accepted sole responsibility
for the children's health, welfare and support. During
the period of Thomas' care, Stephanie's major contribu-
tion was sharing her Mexican vacation with Erin. Such
inequity cannot validate her claim. "Although leqallv
the mother may have been correct in her claim for child
support, eauitv demands that the claim must fail. This
Court has long adhered to such principles of equity."
Blakedee, 722 P.2d at 1151.
The Sabo children voluntarily moved in with Thomas.
During the entire period the children lived with Thomas,
Stephanie neither pursued support payments in arrears nor
objected to the shift in custody. Bv her assent and
conduct, Stephanie consented to the arranqement. As we
recently held, "[Tlhe equitable principle arises when the
mother has expressly or impliedlv consented to an
arrangement other than the payment of the iudsment." In
ReMarriageofCook (Mont. 1986), 725 P.2d 562, 566, 43 St.
Rep. 1732, 1737. This principle acknowledges that the
real beneficiaries of the judgment are the children, not
the person named in the judgment. . .
.
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N e v e r , during the entire period that the Sabo
children were being raised by Thomas, did Stephanie offer
any financial assistance to Thomas. III Cook, we noted
that circumstances rnav not allow the mother to collect
child support in arrears, "where the husband has made
expenditures which constitute substantial compliance with
the spirit and intent of the decree." Cook, 725 P.2d at
566. Thomas has met both the spirit and the purpose of
child support obligations. Thomas did not abrogate his
duties and obligations under the decree of dissolution.
On the contrary, he assumed the duties of the custodial
parent by default, after Stephanie relinquished them.
. . . .
Under the equitable principles of Blakedee, Cook and
Jensen, we hold that Thomas substantially complied with
the decree obligations. By her assent and conduct,
Stephanie consented to the shift in custody and support.
We cannot equitably allow Stephanie to reap a windfall of
support payments, if she never made the support
expenditures. "A party to an agreement which has been
performed for some length of time is estopped to deny its
validity." Jensen, 727 P.2d at 516, 43 St.Rep. at 1895.
Thomas is therefore relieved of the obligation to pay any
child support accruing after and during his consensual
assumption of custody.
Marriage of Sabo , 730 P.2d at 1113-14 (emphasis added). All that was
said in Sabo applies to this case. The majority suggests that Sabo
is somehow distinguishable from this case because in Sabo the mother
had been given sole custody, while in this case the parents had
joint custody. However, that distinction is irrelevant and misses
the whole point of the Sabo decision. That case simply stands for
the principle that one parent should not be forced to pay support
to the other parent when, in reality, he or she is raising and
supporting the very children who are the subject of the support
obligation. The basis for our Sabo decision was that "where the
husband has made expenditures which constitute substantial
compliance with the spirit and intent of the decree," the mother
may not collect child support in arrears. Sabo , 730 P.Zd at 1114.
That decision had nothing to do with the fact that the mother had
been given sole custody, as opposed to joint custody. The majority
observes a distinction that truly makes no difference.
This couple's children lived with Thomas, at his expense, from
June 21, 1991, to the present time. During that time, Diane
contributed nothing to their support. By paying for their support
directly, Thomas substantially complied with his obligations
established in the California order. To hold that Diane can come
back and collect further support from Thomas for a substantial
period of time during which she expended nothing for support of her
children not only ignores reality, it ignores our prior decisions
on this subject and our obligation to accomplish equity in
dissolution and support proceedings. For these reasons, I dissent
from the majority opinion. It is this kind of blind adherence to
technicality that breeds disrespect for the law. I would reverse
the order of the District Court and conclude that Thomas owed no
support to Diane from June 21, 1991--the date on which he assumed
custody of, and the responsibility for the actual support of, his
children.
Jus ice
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In Re the Marriage of Glanville
Court: Montana Supreme Court
Date filed: 1995-07-06
Citations: 272 Mont. 22, 52 State Rptr. 563
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