State Ex Rel. Dewyea v. Knapp

No. 83-314
IN THE SUPREME COURT OF THE STATE OF MONTANA

1983

STATE OF MONTANA, ex rel.,
MARCIA LYNN DEWYEA,
Petitioner and Appellant,

LARRY RAY KNAPP,

Respondent and Respondent.

APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Lake,
The Honorable John S. Henson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:
John M. McRae, Special Asst. Atty. General for
Dept. of Revenue, Missoula, Montana
John R. Fredrick, County Attorney, Polson, Montana

For Respondent :
Larry Ray Knapp, pro se, St. Ignatius, Montana

Submitted on Briefs: October 13, 1983

Decided: January 23, 1984

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Filed: ." /

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Mr. Justice John Conway Harrison delivered the Opinion of
the Court.

Appellant appeals from an order by the District Court,
Fourth Judicial District, Lake County, denying enforcement
of child support payments and staying execution until the
parties settle a visitation dispute. The action arose under
the Uniform Reciprocal Enforcement of Support Act, (URESA).
The appellant, a Washington state resident, sought
enforcement of child support payments from respondent. We
modify the District Court's ruling.
Marica Dewyea and Larry Knapp dissolved their marriage
in the state of Washington in 1972. A dissolution decree
ordered Knapp to pay child support for the two children born
as a result of their marriage. In 1977, the Washington
court modified the child support to $130 per child. In
1980, Knapp retired after twenty-one years in the Navy and
came to Montana. Knapp ceased making child support payments
in 1980. Dewyea, living in Washington, contacted officials
and filed this URESA action.
Knapp at a show cause hearing, representing himself,
asserted Dewyea refused to permit him to visit his children
and contended he would resume making payments only if she

permitted him to visit their children. Affidavits from the
children and Dewyea indicated no desire by the children to

visit their father. The District Court, following the
hearings, decided to defer any enforcement of child support
payments until the parties resolved their differences
regarding visitation.
Appellant raises only one issue for appeal. Did the
District Court err in making the enforcement of the child
support payments, under a URESA action, contingent upon
visitation compliance by the custodial parent?
Appellant contends URESA precludes the court from
considering matters other than determination and enforcement
of child support obligations. The court can not examine

other issues regarding the child relationships. We agree.
Section 40-5-133, MCA provides, " [p]articipation in
any proceeding under this part does not confer jurisdiction
upon any court over any of the parties thereto in any
proceeding." Section 40-5-124, MCA states in part:
"[I]£ the action is based on a support
order issued by another court, a
certified copy of the order shall be
received as evidence of the duty of
support, subject only to any defenses
available to an obligor with respect to
paternity (40-5-128) or to a defendant in
an action or a proceeding to enforce a
foreign money judgment. The
determination or enforcement of a duty of
support owed to one obligee is unaffected
by any interference by another obligee
with rights of custody or visitation
granted by a court."

The Colorado Supreme Court addressed this issue in
People of the State of Colorado Ex Rel., Meveren v. District
Court (Colo. 1982), 638 P.2d 1371. In that case, the
district court judge ordered the respondent to pay child
support to the clerk of the court, but the clerk was to hold
the money until visitation rights were settled. The
Colorado Supreme Court held that a child's right to support
and the parents' support obligation are not affected by
misconduct of the parent or violations of visitation
provisions of a custody decree. It further stated that to
illicit irrelevant information regarding visitation matters,
constitutes error as a matter of law.
Im Moffat v. Moffat (198O), 165 Cal.Rptr. 877, 612
P.2d 967, the California Supreme Court found that improper
actions taken by the custodial spouse to thwart the support
paying spouse's opportunity for visitation, played no part
in the determination of the support obligation under URESA.
Without a showing by the obligating spouse that violation of

visitation rights directly affect the support order, and
said violations are provided in that support order, then the
court cannot consider such evidence.
These cases illustrate this rule of URESA proceedings:

The court cannot consider anything other than evidence in
determining the respondent's obligation and ability to
provide support. Violation of visitation rights of the
noncustodial party play no part in a URESA action because
Section 40-5-128, MCA, specifically precludes the use of
such defenses.
Respondent asks this Court to uphold the District
Court order staying the enforcement of support payments
until he settles the matter of visitation of his children.

The District Court clearly lacks the authority under URESA
proceeding to make such an order. Under URESA, the court
decides if a support obligation exists. If such obligation
is found, then the court enforces support, if it is
possible.
If respondent desires to enforce his visitation

rights, modify the support obligations or obtain custody of
his children, then he must seek a forum that holds the
proper jurisdiction to take evidence and rule on these
matters. But without a showing that the trial court holds
jurisdiction to modify support obligations and visitation
enforcement, then that court lacks the authority to review
such evidence.
Respondent asks this Court to consider the welfare of
his children. He contends he should be able to monitor the
use of the support moneys to insure the childrens' proper
care. He also questions the format of the URESA system.
While we do not disagree that the welfare of the
children should be the primary concern of the court, we feel
and URESA provides, that these actions are not the proper
place for these considerations. While visitation rights are
important, they provide no excuse for not making payments
for the support of the children. Respondent should settle
the question of visitation or any other matters that pertain
to the custody or welfare of his children, in a court that
has the proper jurisdiction that holds a position to resolve
these matters. Respondent's other objections to URESA we
find without merit and need not discuss.
We remand this case to the District Court to enter a
judgment consistent with this opinion.

We concur:
Mr. Justice Daniel J. Shea specially concurring,

I join in the majority opinion but. ad.d that I do not
understand how or why the trial court managed to ignore the
statute that is so clear on the issue before us. Section
40-5-124, MCA, quoted in full in the main opinion, declares:
". . . The determination or enforcement of a duty
of support owed to one obligee is unaffected by any
interferrence by another obligee with rights of
custody or visitation granted by a court."

This statute is crystal clear, and yet the trial court
ignored it.
The court may have had some reason for choosing to
ignore this statute, but if that is so, that reason is not
set forth in the record. Where the action of a trial judge
is so manifestly in violation of a statute, I believe the
trial court at least should have set forth an explanation in
the record why the choice was made to ignore the statute.

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