No. 85-317
IN THE SUPREME CGUR-T OF THE STATE OF MONTANA
1986
IN RE THE MARR.IAGE OF
DAVID D. BORDNER,
Petitioner and Respondent,
and
LANOR ff&E EORDNER,
Respondent and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable James B. Wheelis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Matovich & Addy; Bard G. Eliddleton, Billings, Montana
For Respondent:
Datsopoulos, MncDonald & Lind; David R . Cotner,
Missoula, Montana
Submitted on Briefs: Dec. 18, 1985
Decided: March 11, 1986
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Appellant, Lanor Mae Bordner, appeals from the order of
the District Court denying her motion to hold appellee, David
D. Bordner, in contempt for failing to satisfy accrued
judgments for child support.
The record of this case and the findings of fact made by
the District Court disclose the following: The parties'
marriage was dissolved by decree of dissolution of marriage
on Ju1.y 5, 1979. During the parties' marriage, two minor
children were born as issue of the marriage, namely Laura
Lynn Bordner, horn January 13, 1964, and David Daniel
Bordner, Jr., born January 14, 1966.
The dissolution decree and the parties' separation
agreement dated June 27, 1979, provided that David would. make
child support payments to Lanor through the Clerk of Court,
Missoula County, Montana, until each child completed high
school following his or her eighteenth birthday in the sum of
$150.00 per month, per child.
In April, 1980, Laura moved from her mother's home
because of friction which had developed within the family.
She moved. to her father's residence in Washington State.
This move was intended to be permanent and was with the
consent of Lanor. Laura, however, lived with David for a
period of only four months.
Upon returning to Montana, Laura returned for a brief
period of time to her mother's house, then moved to a halfway
house and eventually to a group home where she resided
throughout the remainder of her minor years. The Department
of Social and Rehabilitative Services assumed temporary legal
custody of Laura by order of the District Court. in June,
1981.
In 1980, and 1981 David fell into arrears on his child
support payments due to unemployment. In January 1981, Lanor
filed a petition for support under the Uniform Reciprocal
Enforcement of Support Act. As a result of that petition,
David was ordered by the Superior Court of Washington for
Grays Harbor County to pay the sum of $150.00 per month for
the support of the minor children and $25.00 per month for
his accumulative arrearage until liquidated. After David
Daniel's graduation from high school in June, 1984, l avid's
support order was modified to $75.00 per month by the State
of Washington. The record indicates that David has fulfilled
his support obligations under the Washington support order.
The District Court found that as of March 29, 1985, a
total of $1,450.00 of accrued child support obligations was
unpaid and owing by David to Lanor. The District Court
arrived a t this amount by relieving David of his duty to
support Laura between April, 1980, and January, 1982. In
conclusion of law number one, the court stated:
Petitioner was relieved of his child support
obligations between April, 1980, and January, 1982.
From April, 1980, through July, 1980, Laura 1,ynn
Rordn~r was integrated into Petitioner's family
home with Respondent's consent. That during this
period Petitioner provided 100% of Laura's support.
From August, 1980, through January, 1982, Laura
Lynn Bordner was emancipated and therefore pursuant
to M.C.A. 5 40-4-208 Petitioner's child support
obligation was terminated.
The District Court al-so concluded that David should pay the
arrearages at the rate of $75.00 per month.
The parties' separation agreement provided: "Should any
action he commenced to enforce, modify or interpret any
provision contzined herein, the Court, as a cost of suit,
shall award a reasonable attorney's fee to the successful
party. " The District Court denied Lanor's request for
attorney's fees because she did not "prevail at the hearing."
The following issues are raised on appeal:
1. Whether a parent obligated to pay child support mey
automatically terminate the provisions for the support upon
the emancipation of his child.
2. Whether the District Court erred by concluding that
Laura was emancipated from August, 1980, through January,
1982.
3. Whether the District Court erred in relieving David
of his child support obligation between April, 1980, and
January, 1982.
4. Whether the District Court erred by adopting a
deferred payment plan for the payment of unpaid and
delinquent child support without reference to contempt, and
5. Whether the District Court erred when it denied
Lanor her costs and attorney's fees incurred in enforcing
judgments for the accrued child support obligation.
We first address David's contention that the provisions
for the support of a child are automatically terminated by
emancipation of the child. under 5 40-4-208 (5), MCA, and. that
no further act of the obligated parent is necessary. Section
40-4-208 (5), MCA, states:
Unless otherwise agreed in writing or expressly
provided in the decree, provisions for the support
of a child are terminated by emancipation of the
child ...
To agree with David's contention would be to give the
obligated parent the discretion to unilaterally declare the
emancipation of: his child and terminate support payments.
At least one other court has addressed this issue. In
Patrzykont v. Patryzykont (Kan. 1982), 644 P.2d 1009, 1012,
the Court of Appeals of Kansas held that emancipation does
not necessarily terminate the obligation of support and would
be an inappropriate event for justifying automatic
termination by the parents without sanction of the court.
Emancipation signifies the surrender and renunciation of
rights and duties in regard to care, custody and earnings of
a child. It is true that at the age of majority,
emancipation is automatic, and the parents' obligation for
support ends without further zction by the court, unless
there has been some voluntary agreement that support by one
or both parents will conti-nue beyond majority. Herrig v.
Herrig (1982), 199 Mont. 174, 187, 648 P.2d 758, 765.
Clearly, however, whether a child is otherwise in fact
emancipated will not be an easy qtzestion in all cases and
surely not one to be left to the obligated parent. We
therefore hold that for purposes of § 40-4-208(5), MCA, the
question of whether a child is emancipated is a question of
fact to be determined by the court. If emancipation can be
established., a parent generally will have no further duty to
support the child. Prior to the age of eighteen, however,
there is a presumption against the emancipation of a child,
and the burden of establishing emancipation is on the party
asserting it.
The next issue to be addressed is whether the District
Court erred by concluding that Laura was emancipated from
August, 1980, through January, 1982. The record discloses
that after Laura returned to Montana from David's home in
Washington, she lived with her mother briefly, then moved to
a half-way house, and eventually to a group home. On June
15, 1981, the District Court adjudicated Laura a youth in
need of care and. ga.ve temporary legal custody of her to the
Missoula County Department of Public Welfare. The record
also discloses that during this period, Lanor provided Laura
with various necessities, incl-uding personal items, shampoo,
toothpaste, shoes, clothing, food and a place to stay
periodically. She also paid for Laura's hair cuts, took her
to job interviews, and provided her with transportation.
Section 20-25-501, MCA, defines an emancipated minor for
tuition purposes as:
[A] person under the age of 18 years who supports
himself from his own earnings or is married. A
person who received more than 25% of the cost of
supporting himself from any person other than an
agency of the government shall not be considered an
emancipated minor.
There are no facts in the record nor any findings ma.de by the
District Court t.o indicate that Laura was capable of
supporting herself through her own earnings or whether she
even had any earnings.
This issue, however, raises the further question of
whether a minor adjudicated a youth in need of care should
ever be declared a fully emancipated minor. In this State,
once a child is adjudicated a youth in need of care the court
may order the county welfare department to conduct a
financial status investigation of t-he child's parents and may
ultimately order the parents' of the youth who is in the
state's custody to make payment to the Department of Social
and Rehabilitatjve Services. Section 41-3-1123 and
41-3-1125, MCA. These statutes place a continuing duty of
support on the parents while their child is a youth in need
of care which runs contrary to the concept of emancipation.
Further, S 41-3-408, MCA, states that the court
"may . . . enter an order granting limited.
emancipation . . . " to a youth in need of care. The statute
gives the court no authority to find a youth in need of care
a fully emancipated minor. Thus, we hold that the District
Court erred in concluding that Laura was emancipated from
August, 1980 to January, 1982 based on the record of this
case and that a youth in need of care is limited by statute
from attaining more than limited emancipation which in the
riqht case may call for prospective modification of a child
support obligation but not for termination of the obligation
under S 40-4-208 (5) , MCA.
The third issue raised for our consideration is whether
the District Court erred in relieving David of his support
obligation for Laura from April-, 1980, through January, 1982.
The action of the District Court is contrary to S
48-4-208 (I), MCA, which states:
. .
. a decree may be modified by a court as to
maintenance or support only as to installments
accruing subsequent to the motion for modification.
There can be no doubt that the District Court modified the
judgment. for accrued child support payments, and modified it
retroactively.
By relieving David of his support obligation for Laura
during the 4 months she resided in David's home in
Washington, the District Court. abused its discretion and
modified the plain meaning of the terms of the parties
settlement agreement and the dissolution decree. Gies v.
Gies (Mont. 19841, 681 P.2d 1092, 1096, 41 St.F.ep. 1028,
1032. Because Laura's move was intended to be permanent and
was done with Lanor's consent, a motion for modification may
have been proper at. that time. But once David's payments
became due under the decree of dissolution, the law puts the
burden upon him to make a positive act to modify his support
obligation. State of Oregon ex rel. Worden v. Drinkwal-ter
(Mont. 1985), 700 P.2d 150, 153, 42 St.Rep. 599, 602-03.
Since David made no motion for modification once his payments
had accrued, the decree could no longer he modified to cancel
past due and unpaid child support because the decree can be
modified prospectively only. Dahl v. Dahl (1978), 176 Mont.
307, 310, 577 P.2d 1230, 1232.
Having already determined that termination of support
due to the emancipation of a minor must be done by motion and
that Laura was not emancipated from August, 1980, to January,
1982, we now hold that a motion for termination under 5
40-4-208 (5), MCA, shall be governed by S 40-4-208(l), MCA.
In other words, a decree may be modified to terminate support
due to the emancipation of a child only as to installments
accruing subsequent to the motion.
The next issue raised is whether the District Court
erred by adopting a deferred payment plan for the payment of
unpaid and delinquent child support without. reference to
contempt. In Williams v. Rudke (1980), 186 Mont. 71, 77-8,
606 P.2d 515, 518-19, a case factually analogous to the
instant case, this Court held that when a. husband is brought
before the District Court on a motion. that he be held i n
.
contempt for failing to make support payments and the
District Court adopts a deferred schedule without finding the
husband guilty of contempt, the action of the District Court
constitutes an improper modification of a judgment for
accrued payments. The rationale for this rule is that:
The District Court always has jurisdiction in
contempt proceedings for the purpose of enforcing a
support money decree, to find the defaulting party
in contempt, and to stay the execution of
punishment for the contempt upon the provisio that
the defaulting party purge himself by making
payments in accordance with a schedule established
by the District Court. Williams, 186 Mont. at 78,
606 P.2d at 519; State v. District Court (19481,
122 Mont. 61, 72-6, 198 P.2d 761, 767-69.
In the instant case the District Court denied Lanor's
motion for contempt and approved payment of arrearages at
$75.00 per month. As stated in Williams, this constitutes a
modification of a jud.gment for accrued payments which cannot
be done, without finding David in contempt. To hold.
otherwise would be to take away Lanor's right to levy
execution for the accrued payments if property could be found
in the possession of David which could be applied to the
arrearages.
We further note that the District Court appeared to give
approval to the Washington URESA order modifying David's
support payment to $75.00 per month. We, however, have
stated. that the authorj-ty of the court originally orderiag
payment is not affected or its order modified by an order of
the court of the responding state fixing another or different
sum. Campbell v. Jenne (1977), 172 Kont. 219, 222, 563 P.2d
574, 577.
Finally, based on our discussions above, we hold that
Lanor was entitled to her attorney's fees pursuant to the
parties separation agreement.
We reverse and remand with instructions t.o the District
Court to determine the amount of child support owed by David
without relieving him of his support obligation for Laura
between April, 1980, and January, 1982 and to enter a
judgment for that amount.
We Concur:
./
m ~ k ,
C h i e f Justice