State of Or. Ex Rel. Worden v. Drinkwalter

No. 84-321
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985

STATE OF OREGON, ex rel., JOYCE
E. WORDEN,
Petitioner and Respondent,

RAY HARRISON DRINKWALTER,
Respondent and Appellant.

APPEAL FROM: ~istrictCourt of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Diane G. Barz, Judge,presiding.

COUNSEL OF F?3CORD:

For Appellant:
Galles & Gunderson; Allen D. Gunderson, Billings,
Montana

For Respondent:

Terrence Swift, Billings, Montana

Submitted on Briefs: Jan. 31, 1985
Decided: MaY 2 , 1985

tit MY 1 '19th
Filed:

Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
This is an action arising under the Uniform Reciprocal
Enforcement of Support Act (section 40-5-101 to -142, MCA)
(URESA). The District Court of the Thirteenth Judicial
District, Yellowstone County found that respondent Ray
Drinkwater had a continuing obligation to pay child support
to petitioner Joyce Worden. The court also found respondent
to be in arrears on past support payments. Respondent
appeals from this order. We affirm.
The parties to this action received a decree of divorce
from the District Court in Yellowstone County, Montana on
July 17, 1967. The decree provided that the mother, now
named Joyce Worden, had custody of their three children, and
set the father's child support payments at $150 per month.
The order did not apportion child support amounts per child,
stating only "that the defendant pay the plaintiff the sum of
$150 per month for the support and maintenance of the minor
children. "
Subsequently, the mother moved with the children to
Oregon. The father remained in Montana. He paid support to
the mother until April 1, 1980, when he began splitting the
payments between the mother for the minor daughter, and the
other minor child who had moved in with his brother. When
the second minor child reached the age of eighteen, the
father unilaterally and without modification of the original
decree, reduced the amount of child support he paid to the
mother, for the benefit of the remaining minor child, to $75
per month.
In September of 1983, the father stopped paying child
support for the remaining minor child, alleging that she had
become emancipated. The mother filed a support action under
URESA in the Oregon district court. The Oregon court found a
duty of support, and forwarded the mother's complaint to the
responding court in Yellowstone County, Montana. The father
answered the Montana court's order to show cause, alleging
that he had overpaid child support and that he did not have a
duty to support his "emancipated" daughter. Next, the father
filed a motion to produce payroll records of the minor child
where she was employed in Oregon. The mother's motion to
quash this motion for production was granted. Both parties
later propounded interrogatories and requested additional
documents, which were provided..
The District Court heard the matter on April 19, 1984.
Following the hearing, the court ordered the father to
continue to pay $150 per month child support until the minor
daughter reaches majority , and ordered payment of $3,525
arrearages at the rate of $50 per month until the daughter
reaches majority. After that date, the father was to make
$200 per month payments until the debt was liquidated. The
father moved to amend the court's findings and conclusions.
The motion was denied, and the father appeals, presenting the
following issues for review.
(1) That the District Court erred in granting the
mother's motion to quash father's request for production of
certain payroll records of the daughter.
(2) That the District Court erred in finding that the
minor daughter was not emancipated.
(3) That the District Court erred in not allowing the
father credit for payments he made that were in excess of the
monthly payments required by the decree.
 District courts have the discretionary power to control
discovery activities in cases pending before them. We will
overturn a district court order affecting discovery only if
it amounts to an abuse of discretion, State ex. rel.
Guarantee Ins. Co. v. District Court (Mont. 1981), 634 P.2d
648, 38 St.Rep. 1682.
Here, the mother's motion to quash and request for a
protective order alleged that the father's request for
discovery was oppressive, irrelevant, and meant to harass.
Father responded citing the requested documents relevance to
the issue of emancipation. In granting the mother's motion
the District Court stated that it was "fully advised" of
these grounds, and cited Ackerman v. Yanoscik (Tex. 1980),
601 S.W. 2d 72 for the rule that the only defenses available
to an obligor in a URESA enforcement action are those that
relate to the validity of the original order, such as la.ck of
jurisdiction or procedural defects.
The father argues that the District Court's reliance on

Ackerman is in error. He contends that in a case, such as
this one, where the URESA responding court and the court that
issued the original decree are the same, the obligor may
request a modification of the original decree, citing Freano
v. Rosenbaum (La. 1981), 399 So.2d 758, and Carpenter v.
Carpenter (La. 1956), 92 So. 2d 393. Thus, he argues, since

the original decree was at issue, the documents he sought
production of are relevant and properly discoverable.
We do not read these cases to stand for the proposition
that modification and URESA enforcement actions somehow
become "merged" when, through happenstance, the courts are
the same. A request for the modification of a divorce decree
is separate and distinct from the present action which arises
under URESA. This action is controlled solely by URESA
statutory and case law and it does not matter whether the
obligor is present in the same jurisdiction granting the
original decree; URESA is also designed to protect obligees
that leave the original jurisdiction, Commonwealth v. Mexal
(Penn. 1963), 193 A.2d 680. The cases father cites simply
stand for the rule that the responding court must find the
obligor has a duty of support, see section 40-5-125, MCA; and
where the obligor has denied that duty, that the obligee has
the burden to prove the same. The jurisdictions are split on
the scope of this inquiry. The Yanoscik case cited by the
District Court articulates the rule that the responding court
is limited to examining the foreign court's order to see if
it, on its face, states such a duty. See also Littrel v.
Littrel (Tex.Ct.App. 1980), 601 S.W.2d 207. If so, the only
defenses available to the obligor are jurisdictional or
procedural in nature.
The other, majority rule is that the responding court
may make an independent review of the duty and amount of

support due from the alleged obligor and enter its own
decree. State on Behalf of McDonnell v. McCutcheon (Minn.
1983), 337 N.W.2d 645; Sullivan v. Sullivan (IlI..App. 1981),
424 N.E.2d 957, 960; Fox, The Uniform Reciprocal Enforcement
of Support Act 12 Family Law Quarterly 113, 130 (1978).
Because there are alternative grounds supporting the
District Court order, we will not decide here which rule
applies in Montana. Rule 26 (c) M.R.Civ.P. allows a District
Court to issue a protective order to prevent one party to a
lawsuit from being harassed by the other. One common
situation where such relief is granted is where it is
necessary to protect a party from unjustifiably repetitious
demands. Here, the father's request for - of
all the
daughter's pay stubs and wage information is clearly
repetitive and unjustifiable in light of the fact that he
requested, and received, her W-2 statements containing the
same information. The District Court did not abuse its
discretion in granting the mother's motion.
The same reasoning applies to the father's second
allegation of error; that the District Court erred in not
finding his minor daughter emancipated and thus that he did
not owe a duty of support for .her. Assuming, arguendo, that
we adopted the broader majority rule, stated above, on the
responding court's powers of inquiry and action in a URESA
action, we still could not overturn the District Court's
order. The question of emancipation is primarily factual.
In that regard, we will look to the record to see if the
District Court's findings are supported by substantial
credible evidence, or are not clearly erroneous. Here, there
is substantial credible evidence supporting the District
Court's findings. The mother introduced affidavits
explaining her and her daughter's living situation, why they
lived apart for awhile and where. The daughter's W-2
statements do not show that she earned enough money to
support herself. The court heard the father's testimony, and
chose to believe the mother. We cannot say that this choice
was clearly erroneous, or not supported by substantial
evidence.
Alternatively, if we adopted the narrower minority
rule, this inquiry is irrelevant to the URESA action, and the
father has no grounds upon which to allege error. Under this
rule, his option is to petition the District Court for a
modification of the divorce decree.
 Finally, the father argues that in the past he made
several payments to the mother in excess of his monthly
ohliga.tion, and that the District Court erred in not
crediting those payments against his arrearages. The
District Court noted that "[tlhe respondent testified that he
had 'overpayedl his child support requirement by making
payments individually to his minor children." (Emphasis
added.) The court also had before it numerous check stubs
and receipts of alleged overpayments. The decree of divorce
provided that "the defendant pay the plaintiff the sum of
$150 per month for the support and maintenance of the minor
children of the parties. " (Emphasis added. ) His obligation
under the decree was to make the support payments to the
mother. He could not discharge this duty by payments to the
children directly, or by reaching a unilateral conclusion
that some of his children were emancipated. Nor were such
payments in "substantial compliance" with the decree.
Hadford v. Hadford (Mont. 1981), 633 P.2d 1181, 38 St.Rep.
1308; Delaney v. Delaney (1981), 195 Mont. 259, 635 P.2d
1306. Once an obligor's payments become due under a decree
of divorce they are fixed and absolute, and the law puts the
burden upon the obligor to make a positive act if he desires
to modify these obligations. Section 40-4-208, MCA; State ex
rel. Voorhies v. District Court (Mont. 1983), 668 P.2d 241,
40 St.Rep. 1368. Based on this, the court found the father
to be in arrears to the mother because he had not made the
payments required by the decree. We affirm.
44, 7 : f - 7 / <
We concur:

C ief Justice
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