No. 90-567
IN THE SUPREME COURT OF THE STATE OF MONTANA
19 91
IN RE THE MARRIAGE OF
CAROLYN L. (CRITTENDON) HOOPER,
Petitioner and Respondent,
and
GARY D. CRITTENDON,
CLERK OF SUPREME COURT
Respondent and Appellant. STATE Or" L l i ) l # ' r ~ p ~ ~
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable Mark P. Sullivan, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
C. Kathleen McBride; Johnson, Skakles & Kebe, Butte,
Montana
For Respondent:
Brad Belke, Attorney at Law, Butte, Montana
Submitted on Briefs: January 24, 1991
Decided: February 26, 1991
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.
Gary Crittendon appeals a September 24, 1990, decision of the
District Court of the Second Judicial District, Silver Bow County,
awarding Carolyn Crittendon Hooper $23,250 in child support
arrearages. We affirm in part and remand in part.
Crittendon presents two issues:
1. Did the District Court err in failing to exercise its
equitable powers to estop the collection of past due child support?
2. Did the District Court err in calculating past due child
support payments by failing to limit the judgment to a period of
ten years?
After nearly seven years of marriage, Gary Crittendon and
Carolyn Crittendon Hooper were divorced on February 7, 1973.
Custody of the two minor children, ages six and one, was awarded
to Hooper, and Crittendon was required to pay $150 per month in
child support. The children are now 24 and 19 years of age.
Since the date of the dissolution, Crittendon had paid a total
of approximately $1,800 in child support. District Court records
show that Hooper made attempts in 1973 and 1975 to collect past due
child support payments. In addition, Hooper testified that she
contacted the Department of Social and Rehabilitation Services in
August 1977 and the Child Support Enforcement Division in 1987
concerning collection of back child support. Hooper stated that
because of lack of funds she was unable to further pursue
collection of child support arrearages.
Crittendon testified that in a contempt proceeding in 1973,
the District Court reduced the monthly support payments to $80 per
month. A record of the court's order reducing payments could not
be found.
After the divorce, Crittendon lost contact with the children.
In the late 1970's the children's surname was changed to "Hooper."
Crittendon claimed that he abided by Hooper's wishes in staying
away from the children, impliedly in exchange for non-payment of
child support.
Did the District Court err in failing to exercise its
equitable powers to estop the collection of past due child support?
Crittendon contends that an equitable exception to the rule
concerning modification of child support payments applies in his
case.
Ordinarily, the amount of child support payments may only be
modified prospectively. Section 40-4-208(1), MCA. However, when
the parties mutually agree to modify child support payments and
the agreement is observed over a period of years, in an action for
support arrearages the trial court may, in exceptional
circumstances, refuse to award the original amount mandated in the
dissolution decree or child support order. In re Marriage of
Guckeen (1989), 240 Mont. 136, 782 P.2d 1284; State ex rel.
Blakeslee v. Horton (1986), 222 Mont. 351, 722 P.2d 1148. The
theory underlying this exception is that the party bringing the
action is equitably estopped from denying the mutual agreement upon
which the other party relied. See In re Marriage of Jensen (1986),
223 Mont. 434, 439, 727 P.2d 512, 515.
The requirements for applying this equitable exception to the
rule that child support payments may not be modified retroactively
are (1) substantial and continuing change in circumstances
rendering enforcement of the original decree of child support
inequitable; (2) mutual agreement between the parties made in good
faith; and (3) conduct over a period of years consistent with the
agreement. Jensen, 223 Mont. at 438-40, 727 P.2d at 515-16. These
elements must be shown by clear and convincing evidence and only
apply to payments due subsequent to the mutual agreement. Jensen,
223 Mont. at 439, 727 P.2d at 515-16. Furthermore, child support
modification by the parents must not impair the rights of any
assignee of support payments. Jensen, 223 Mont. at 440, 727 P.2d
The record does not support crittendonls contention that the
parties impliedly agreed to modification of the support provisions
of the dissolution decree. Crittendon testified as follows:
CRITTENDONIS COUNSEL: So, do I understand that since
approximately sometime in 1974 that you and your wife or
ex-wife have had some sort of an understanding that you
wouldn't try to visit the children and that she would not
seek child support?
CRITTENDON: I donlt know her feelings on this, I know
that mine were based on that implied impression, that if
I stayed away everything would be okay.
Crittendon's testimony does not reveal a mutual agreement and was
contradicted by Hooperls testimony that Crittendon could have
requested visitation at any time. We hold that the District Court
did not err in refusing to apply the equitable estoppel exception
to retroactive modification of child support payments.
I1
The second issue is whether the District Court erred in
failing to apply the ten-year statute of limitations applicable to
judgments .
Crittendon maintains that either the six-year statute of
limitations applicable to execution of judgments or the ten-year
limitations period for actions on a judgment or decree should limit
the amount of his past due support obligation. See 5 5 25-13-101
and 27-2-201(1), MCA. Hooper responds that any limitations period
should not commence until the youngest child becomes emancipated.
This is a case of first impression in Montana, although this
Court has ruled that the doctrine of laches cannot serve as a
defense to collection of child support arrearages. Fitzgerald v.
Fitzgerald (1980), 190 Mont. 66, 618 P.2d 867. The rationale in
Fitzqerald was that the parent owed a duty to the child, as well
as to the state, to support the child and that the parent's support
obligation could be enforced at any time during the child's
minority. Fitzqerald, 190 Mont. at 69-71; 618 P.2d at 868-869.
In some jurisdictions the limitations period does not begin
to run until the arrearages have been reduced to a lump sum payment
or until the youngest child is emancipated. See Harvey v. McGuire
(Ky. App. 1982), 635 S.W.2d 8 (fifteen-year limitations period not
triggered until delinquency reduced to final judgment or until
emancipation of child); Wilson v. Wilson (Miss. 1985), 464 So.2d
496; Wall v. Wall (Wis. App. 1987), 410 N.W.2d 593.
In Wilson the court held thatMississippilsseven-year statute
of limitations does not start to accrue until the youngest child
reaches majority because the cause of action belongs to the child,
not the parent. The court cited parents1 legal and moral
obligation to support their children. Wilson, 464 So.2d at 498-
99.
The Wisconsin rule that the statute of limitations does not
begin to run until the child reaches majority is "based on the
potential for a child support order to be revised upon a showing
of changed circumstances anytime before the child attains
majority.I1 Wall, 410 N.W.2d at 595.
In a small minority of jurisdictions, no limitations period
applies to child support decrees. See, e.g. , Finnern v. Bruner
(Neb. 1958), 92 N.W.2d 785.
In a majority of jurisdictions the statute of limitations
applicable to judgments will bar enforcement of delinquent child
support obligations which fall outside the statutory limit. 2 H.
Clark, Jr., The Law of Domestic Relations, 394-95 (1987); see Young
v. Williams (Alaska 1978), 583 P.2d 201 (ten-year statute) ; Corbett
v. Corbett (Ariz. App. 1977), 569 P.2d 292 (five-year statute); In
re Marriage of Utigard (Cal. App. 3 Dist. 1981), 178 Cal. Rptr.
546 (ten-year statute) ; In re Marriage of Aragon (Colo. App. 1989),
773 P.2d 1110 (twenty-year statute); Mayo v. Mayo (D.C. App. 1986),
508 A. 2d 114 (twelve-year statute) ; Lindsey v. Lindsey (Hawaii App.
1986) , 716 P. 2d 496 (ten-year statute) ; Dunn v. Dupre (Idaho 1966) ,
420 P.2d 8; Riney v. Riney (Kan. 1970), 473 P.2d 77 (five-year
statute) ; Evertsen v. Jenssen (La. App. 5 Cir. 1989), 552 So.2d
1277, rev. denied 556 So.2d 1283 (1990) (five-year statute
specifically applying to child support obligations); Miller v.
Miller (Md. App. 1987), 519 A. 2d 1298 (twelve-year statute) ;
Rybinski v. Rybinski (Mich. 1952), 53 N.W.2d 386 (ten-year
statute) ; Bednarek v. Bednarek (Minn. App. 1988), 430 N.W.2d 9
(ten-year statute specifying child support payments); Wimmer v.
Wimmer (Mo. App. 1985), 690 S.W.2d 475 (ten-year statute revised
to specifically apply to child support payments); ~ r i t t o n v.
Britton (N.M. 1983) , 671 P. 2d 1135 (fourteen-year statute) ; Ames
v. Ames (Or. App. 1982), 652 P.2d 1280 (ten-year statute) ; Smith
v. Smith (Tex. App. 1982), 643 S.W.2d 523 (ten-year statute);
Seeley v. Park (Utah 1975), 532 P.2d 684 (eight-year statute);
Matter of Marriage of Ulm (Wash. App. 1 ~ i s t .1984), 693 P.2d 181
(ten-year statute) .
These courts reason that since each child support payment
becomes a separate, final judgment as of its date of accrual, the
statute of limitations pertaining to final judgments applies. See,
e.g., Araqon, 773 P.2d at 1111-12; Lindsey, 716 P.2d at 499. The
Montana Supreme Court has stated that each child support payment
I1becomesa judgment debt similar to any other judgment for money.I1
In re Marriage of Sabo (1986), 224 Mont. 252, 254, 730 P.2d 1112,
1113. Thus, the ten-year statute of limitations for actions upon
court judgments or decrees, § 27-2-201 (1), MCA, applies to actions
by one parent against the other for child support arrearages. The
District Court, under the facts of this case, should have limited
awarded arrearages to payments due within the ten-year period prior
to initiation of the suit.
The award of child support arrearages is remanded to the
District Court for entry of judgment consistent with this opinion.
The judgment of the District Court refusing to estop collection of
past due support is affirmed.
We concur: