No. 13409
IN THE SUPREME COURT OF THE STATE OF MONTANA
1977
DIANE V. CAMPBELL, formerly
DIANE V. JENNE,
Plaintiff and Petitioner,
SHERMAN G. JENNE,
Defendant and Respondent.
Appeal from Fourth Judicial District Court
Honorable E. Gardner Brownlee, Judge Presiding.
Counsel of Record:
For Appellant:
Milodragovich, Dale & Dye, Missoula
Harold V. Dye argued, Missoula, Montana
For Respondent:
Douglas G. Harkin, Co. Atty., Hamilton
Douglas G. Harkin argued, Hamilton, Montana
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Submitted: January 17, 1977
Decided: APR 2 9 1 7 F
9;
Filed: &PR d 9 ;9T/
Mr. Justice Frank I. Haswell delivered the Opinion of the Court.
In an action by the mother of two minor children to
enforce a $100 monthly child support award in a 1967 Nevada
divorce decree, the district court of Missoula County held
that the Nevada award was modified by later support orders of
$40 monthly in a 1969 Idaho Uniform Reciprocal Enforcement of
Support Act proceeding and in a 1973 Montana Uniform Reciprocal
Enforcement of Support Act proceeding and computed the arrearage
accordingly. The mother appeals.
The parties were married on September 1, 1961. Two
children were born as issue of the marriage: Sherman William
Jenne, born May 3, 1962 and Marjorie Jane Jenne, born October
17, 1964. Respondent father, Sherman G. Jenne sued appellant
mother for divorce in Nevada and the mother was personally
served with summons outside the state of Nevada. On February
11, 1967, a Nevada district court granted the father a default
divorce, awarded custody of the two minor children to the mother,
and ordered the father to pay $100 per month child support to
the mother.
In 1969 an action by the mother against the father,
under the URESA came before the district court of Kootenai
County, Idaho. The mother did not appear personally but was
represented by the prosecuting attorney while the father appeared
personally without an attorney but representing himself. The
father testified and was examined by the prosecuting attorney
and by the court. On March 7, 1969, the Idaho district court
entered an order that the father pay the mother $40 monthly as
child support. The 1967 Nevada decree awarding $100 monthly
child support was not mentioned in the Idaho order.
In 1973 a URESA action by the mother against the father
came before the district court of Missoula County, Montana.
The mother was r e p r e s e n t e d by t h e d e p u t y c o u n t y a t t o r n e y and
t h e f a t h e r a p p e a r e d p e r s o n a l l y and by h i s a t t o r n e y . The
father testified. On September 1 7 , 1973, t h e Montana d i s t r i c t
c o u r t entered an "order of support" r e q u i r i n g t h e f a t h e r t o
pay $40 monthly c h i l d s u p p o r t t o t h e c l e r k o f c o u r t t o b e
t r a n s f e r r e d t o t h e c l e r k o f c o u r t i n Kootenai County, I d a h o ,
f o r c r e d i t t o h i s a c c o u n t t h e r e under t h e Idaho URESA a c t i o n .
No mention was made o f t h e p r i o r Nevada s u p p o r t award o f $100
monthly.
T h e r e a f t e r t h e mother commenced a c i v i l a c t i o n i n t h e
d i s t r i c t c o u r t o f M i s s o u l a County, Montana, t o e n f o r c e t h e 1967
Nevada s u p p o r t award of $100 monthly. The f a t h e r c o u n t e r c l a i m e d
f o r c u s t o d y o f t h e minor c h i l d r e n b u t d i d n o t r e q u e s t m o d i f i -
c a t i o n of t h e 1967 Nevada c h i l d s u p p o r t award. The c a s e was
s u b m i t t e d on s t i p u l a t e d f a c t s and t h e c a l c u l a t i o n s o f e a c h
p a r t y c o n c e r n i n g t h e amount of c h i l d s u p p o r t a c t u a l l y p a i d by
t h e f a t h e r s i n c e t h e Nevada d e c r e e , which d i f f e r e d o n l y t o t h e
e x t e n t o f $100. On May 4 , 1976, t h e d i s t r i c t c o u r t g r a n t e d
judgment t o t h e mother i n t h e amount o f $2,400, t h e a r r e a r a g e
due a s computed by t h e f a t h e r . In effect, the d i s t r i c t court
h e l d t h a t t h e Nevada award had been m o d i f i e d and reduced by
t h e l a t e r o r d e r s i n t h e Idaho and Montana URESA a c t i o n s . The
mother a p p e a l s , c o n t e n d i n g t h e d i s t r i c t c o u r t e r r e d i n d e t e r -
mining s u c h m o d i f i c a t i o n and r e d u c t i o n .
The u n d e r l y i n g i s s u e on a p p e a l i s whether t h e Nevada
d e c r e e awarding t h e mother $100 monthly c h i l d s u p p o r t was modi-
f i e d and reduced by t h e l a t e r s u p p o r t o r d e r s of t h e I d a h o and
Montana c o u r t s i n t h e URESA a c t i o n .
The Nevada c o u r t had p e r s o n a l j u r i s d i c t i o n o v e r t h e
f a t h e r and j u r i s d i c t i o n of t h e s u b j e c t m a t t e r . Its decree grant-
i n g a d i v o r c e t o t h e f a t h e r , c u s t o d y of t h e minor c h i l d r e n t o
t h e mother, and o r d e r i n g t h e f a t h e r t o pay $100 monthly c h i l d
support was valid in Nevada. Accordingly, the Nevada decree
is entitled to full faith and credit in the courts of Idaho
and Montana. Art. IV, Sec. 1, United States Constitution;
Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87
L Ed 279; Corkill v. Cloninger, 153 Mont. 142, 454 P.2d 911.
The Nevada child support award was not modified by the
1969 URESA child support order of the Idaho court. At that
time the original URESA was in effect in Idaho which specifically
provided :
"No order of support issued by a court of
this state when actinq as respondinq state shall
supersede any other order of support but the
amounts for a particular period paid pursuant
to either order shall be credited against the
anount accruing or accrued for the same period
under both." (Emphasis added.) Section 7-1075, Idaho
Codes.
The Idaho Supreme Court specifically held that under the original
URESA the original divorce decree was not modified:
"The Uniform Reciprocal Enforcement of Support
Act, Chapter 10, Title 7, I.C. provides an
auxiliary or supplemental remedy for the en-
forcement of orders of support. It is, of course,
true that the amount of the payments ordered by
the court of the responding state is influenced
by the ability of the husband at that time to
pay, but the authority of the court originally
ordering payment is not affected or is its order
modified by an order of the court of the re-
sponding state fixing another or different sum.
(Emphasis added.) Despain v. Despain, 78 Idaho
185, 300 P.2d 500, cited with approval in Howard
v. Howard, (Miss. 1966), 191 S.2d 528; Oglesby
v. Oglesby, 29 Utah 2d 419, 510 P.2d 1106.
Nor was the 1967 Nevada child support award modified by
the 1973 URESA child support order of the Montana court. At
that time the original URESA provision had been repealed in
Montana and the following provision enacted:
"A support order made by a court of this state
pursuant to this act does not nullify and is
not nullified by a support order made by a
court of this state pursuant to any other law
or by a support order made by a court of any
other state pursuant to a substantially similar
act or any other law, regardless of priority
of issuance, unless otherwise specifically
provided by the court." (Emphasis added.)
Section 93-2601-71, R.C.M. 1947.
URESA support orders that do not refer to prior support awards
do not modify them. In accord: Banton v. Mathers, (1nd.App.
3rd Dist. 1974), 309 N.E.2d 167; Craft v. Hertz, (N.D. 1970),
182 N.W.2d 293.
Thus, the 1967 Nevada decree ordering the husband to
pay $100 per month child support remained valid and unmodified
and was entitled to full faith and credit by the courts of
Montana.
The contentions of the husband that because the Nevada
court had continuing jurisdiction to modify its child support
order, Montana courts possessed reciprocal and continuing juris-
diction to do likewise and did in fact exercise its jurisdic-
tion by reducing the amount of support owed is rejected as
contrary to the facts. The Montana court could have done so by
a specific provision to that effect in its order but did not do
so as that question was neither litigated nor decided. The
order of the Montana court made no reference to the Nevada de-
cree and did not purport to modify it.
The judgment of the district court is reversed. Judg-
ment is entered for plaintiff and appellant Diane J. Campbell
in the amount of $7,540, representing the arrearage under the
Nevada decree.
Justice