NO. 96-083
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
IN RE MARRIAGE OF
JOYCE S. COWAN,
Petitioner and Respondent,
and
ARDEN R. COWAN,
Respondent and Appellant.
APPEAL FROM: District Court of the Twenty-First Judicial
District, In and for the County of Ravalli
The Honorable Frank M. Davis, Judge presiding
COUNSEL OF RECORD:
For Appellant:
John H. Gilliam, Skjelset & Gilliam, P.L.L.P.,
Missoula, Montana
For Respondent:
Clinton H. Kammerer, Kammerer Law Offices,
Missoula, Montana
Submitted on Briefs: September 19, 1996
Decided: November 26, 1996
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
On April 4, 1995, Arden Cowan moved the District Court for the
Twenty-First Judicial District in Ravalli County to modify his
child support obligation. His former spouse, Joyce Cowan, opposed
the motion and filed a motion to have Arden held in contempt for
failure to pay past support. Following a hearing at which both
motions were considered, the District Court increased Arden's child
support obligation from $250 to $762 per month. The District Court
refused to reduce Arden's arrearages by the amount recommended by
the Child Support Enforcement Division (CSED) , and refused to
credit certain Social Security benefits against his past due
obligation. The District Court also denied Joyce's motion to hold
Arden in contempt. Arden appeals the District Court's order which
modified his child support obligation and which refused to grant
him credit against his arrearages. We affirm in part and reverse
in part the order of the District Court and remand to that court
for a determination of Arden's child support obligation consistent
with this opinion and with the Uniform Child Support Guidelines.
We address five issues on appeal:
1. Did the District Court abuse its discretion when it
modified Arden's child support obligation without considering the
factors set forth in § 40-4-204, MCA, and the Uniform Child Support
Guidelines?
2. Did the District Court err when it refused to apply the
monthly Social Security disability payments made to Arden's
children toward Arden's monthly child support obligation?
2
3. Did the District Court err when it refused to apply the
monthly Social Security disability payments made to Arden's two
children in excess of Arden's support obligation as a credit toward
his accrued arrearages?
4. Did the District Court err when it refused to apply the
Social Security lump sum disability payment made to Arden's two
children as a credit toward his accrued arrearages?
5. Did the District Court err when it refused to reduce
Arden's accrued arrearages by $1,593.20, as recommended by the
Child Support Enforcement Division?
FACTUAL BACKGROUND
In 1982, the District Court for the Twenty-First Judicial
District dissolved the marriage of Arden and Joyce Cowan and
awarded Joyce monthly child support in the amount of $100 per child
for each of the couple's two children. Joyce filed a petition for
modification of child support on December 5, 1988, and the District
Court increased Arden's child support obligation to $200 per month
per child beginning June 15, 1989.
In January 1994, Joyce filed a motion in the District Court to
have Arden held in contempt for his failure to keep his child
support obligation current. At that time, Arden's past due child
support amounted to $17,700, and he owed an additional $800 for
attorney fees. Following a hearing at which Joyce's motion was
considered, the District Court adjudged Arden in contempt of court
and entered a judgment against Arden in the amount of $18,550.
However, based on its finding that Arden had been "beset with
3
financial hardships attributable to health and unemployment," the
court reduced Arden's child support obligation to $250 per month
for both children.
Arden filed a motion to further modify his child support
obligation in April 1995. By that time, the Social Security
Administration (SSA) had determined that he had been disabled since
November 1992 and had awarded him monthly benefits in the amount of
$924, retroactive to May 1993. The SSA had also awarded Arden's
children $512 per month retroactive to the same date. Based on the
Social Security payments, Arden alleged in his petition that his
child support should be modified because of "changed circumstances
so substantial and continuing as to make the terms [of the decree1
unconscionable," pursuant to § 40-4-208, MCA. Specifically, Arden
maintained that (1) his child support obligation should be modified
to conform to the Uniform Child Support Guidelines; (2) his support
obligation should be modified to reflect a credit for Social
Security disability benefits paid to the children; and (3) any
Social Security disability benefits received by his children that
exceeded his support obligation should be applied as a credit
against his accrued arrearages.
Before Arden filed his motion for modification of his child
support obligation, the SSA delivered to him two lump sum payments
totaling $19,456.00 for Social Security benefits earned from the
date of his entitlement to the date of payment. After Arden filed
his motion, the SSA sent to Joyce a lump sum payment of $9,728.00
representing benefits to the children as a result of Arden's
4
disability. In addition, the CSED determined that Arden's child
support arrearages should be reduced by $1,593.20.
Following the distribution by the SSA of the lump SUlll
payments, and the recommendation by CSED that Arden's arrearages be
reduced, Arden filed a brief in support of modification of his
child support obligation. In his brief, Arden contended that both
the lump sum payment received by his children and the amount of
monthly Social Security payments paid in excess of his child
support obligation should be credited against his accrued
arrearages. Arden further contended that those accrued arrearages
should be reduced by the amount recommended by the CSED.
Following a hearing at which Arden's motion to modify his
child support obligations and Joyce's motion for contempt were
considered, the District Court issued its findings of fact,
conclusions of law, and order. In its order, the court modified
Arden's child support obligation from $250 per month to $762 per
month. Although the court did not specifically address the
reduction of Arden's arrearages by either the amount recommended by
the CSED or by the amounts paid for Social Security benefits, the
court stated that it U [found] generally for Joyce and against Arden
on all issues not specifically addressed herein." The District
Court denied Joyce's motion to hold Arden in contempt.
STANDARD OF REVIEW
We review a district court's findings of fact and conclusions
of law which underlie an order for the modification of child
support to determine whether the court's findings of fact are
5
clearly erroneous and whether its conclusions of law are correct.
InreMauriageofBvandon (19951, 271 Mont. 149, 151-52, 894 P.2d 951,
952-53. We review the court's decision to modify child support to
determine whether the court abused its discretion. In re Marriage of
Kovash (1995), 270 Mont. 517, 521, 893 P.2d 860, 863.
ISSUE 1
Did the District Court abuse its discretion when it modified
Arden's child support obligation without considering the factors
set forth in 5 40-4-204, MCA, and the Uniform Child Support
Guidelines?
On April 4, 1995, Arden Cowan filed a motion for modification
of his child support obligation. Arden maintained that his
circumstances had changed substantially, as evidenced by the SSA's
determination in January 1995 that he is totally disabled. Because
his disability precludes meaningful employment, Arden asserted that
his child support obligation of $250 per month was "unconscionable"
and should be reduced to conform with the Montana Child Support
Guidelines.
It is well established that "[wlhenever the court issues or
modifies an order relating to child support, the district court is
required to determine the child support obligation on the basis of
the factors set out in 5 40-4-204(l) and (2), MCA, and the Uniform
Child Support Guidelines." InreMarriageofWnckler (1993), 258 Mont. 12,
15, 850 P.2d 963, 965. In this case, the District Court's specific
obligations with respect to Arden's child support determination are
setforthin § 40-4-204, MCA (19931, whichprovidesinpertinentpart:
6
(2) The court shall consider all relevant factors,
including:
(a) the financial resources of the child;
(b) the financial resources of the custodial parent;
(cl the standard of living that the child would
have enjoyed had the marriage not been dissolved;
(d) the physical and emotional condition of the
child and the child's educational and medical needs;
(e) the financial resources and needs of the
noncustodial parent;
(f) the age of the child;
(g) the cost of day care for the child;
(h) any custody arrangement that is ordered or
decided upon; and
(i) the needs of any person, other than the child,
whom either parent is legally obligated to support.
(3) (a) Whenever a court issues or modifies an
order concernins child support, the court shall determine
the child suooort oblisation bv auolvinq the standards in
this section and the uniform child support guidelines
adopted by the department of public health and human
services pursuant to 40-5-209. The guidelines must be
used in all cases . . . The amount determined under
the guidelines is presumed to be an adequate and
reasonable support award, unless the court finds by clear
and convincing evidence that the application of the
standards and guidelines is unjust to the child or to any
of the parties or is inappropriate in that particular
case.
(b) If the court finds that the guideline amount is
unjust or inappropriate in a particular case, it shall
state its reasons for finding that the application of the
standards and guidelines is unjust to the child or a
party or is inappropriate in that particular case.
Similar reasons must also be stated in a case in which
the parties have agreed to a support amount that varies
from the guideline amount. Findings that rebut and vary
the guideline amount must include a statement of the
amount of support that would have ordinarily been ordered
under the guidelines.
(Emphasis added.)
In this case, the District Court modified Arden's child
support obligation based upon its conclusion that "$762.00 per
month contribution is reasonable considering all the
circumstances." However, the court made no finding regarding
Arden's yearly income and admitted that it fl [had] no data as to
7
Joyce's income." The court, in fact, made no attempt to apply the
Uniform Child Support Guidelines. or to consider the factors set
forth in 5 40-4-204, MCA. Instead, the court cavalierly stated:
"Whether [the $762 monthly obligation] meets the criteria of the so
called mandatory guide lines, the Court will leave to the Child
Support Enforcement Division."
We have repeatedly held, however, that the district court must
consider the Uniform Child Support Guidelines and the statutory
criteria set forth at § 40-4-204, MCA, when it makes its child
support determination. See, e.g., Brandon, 271 Mont. at 154, 894 P.2d
at 954; InreMarriageofGrifJin (1993), 260 Mont. 124, 140, 860 P.2d 78,
8 8 ; Wackier , 258 Mont. at 15, 850 P.2d at 965. The purpose of that
requirement is to ensure that there is an evidentiary basis upon
which a court's child support determination is based. In re Marriage
ofKukes (1993), 258 Mont. 324, 328, 852 P.Zd 655, 657. Failure to
set forth findings that demonstrate that the statutory criteria
have been considered is a clear abuse of discretion. Gr@in, 260
Mont. at 140, 860 P.2d at 88.
In this case, the District Court failed to set forth any
factual basis to support its conclusion that Arden's child support
obligation should be increased to $762 per month. Furthermore,
those findings that the court did make with regard to Arden's
ability to contribute to his children's support were not supported
by substantial credible evidence. For example, although the court
found that Arden was capable of contributing $250 per month from
his self-employment income, the evidence submitted at trial
8
.
demonstrated that Arden had only earned a cumulative total of $700
to $1,000 in the twenty months preceding the district court
hearing. In addition, although the court found that Arden had
regularly worked as a professional hunting guide and as an
electrician, Arden testified that he had never received any
monetary payment for his services as a guide and that he had only
earned about $1,000 performing odd jobs as an electrician.
Clearly, the evidence submitted at trial did not establish Arden's
capacity to contribute $250 monthly in addition to Social Security
benefits his children were already being paid.
Therefore, because the District Court failed to apply the
Uniform Child Support Guidelines and 5 40-4-204, MCA, when it
ordered the modification of Arden's support obligation, and because
those findings that the District Court did make with regard to
Arden's ability to contribute to his children's support were not
supported by substantial credible evidence, and were, therefore,
clearly erroneous, we hold that the District Court abused its
discretion when it modified Arden's monthly child support
obligation from $250 to $762. We therefore reverse the District
Court's order modifying Arden's child support obligation and remand
to that court with instructions that the court consider the Uniform
Child Support Guidelines, the factors listed in 5 40-4-204, MCA, f~
and Rule 46.30.1542, ARM, and enter findings of fact which support
its child support award.
9
ISSUE 2
Did the District Court err when it refused to apply the
monthly Social Security disability benefits paid to Arden's
children toward Arden's monthly child support obligation?
In this case, the District Court concluded that Arden's child
support obligation should be adjusted to $762 per month--$512 to be
paid from the Social Security disability payments and $250 to be
paid by Arden. The court's order did not alter Arden's standard
$250 monthly obligation, but, in effect, denied Arden the
opportunity to offset that obligation with the Social Security
disability payments. On appeal, Arden maintains that the Social
Security disability benefits received by his children should have
been credited against the amount of his monthly obligation, as
required by this Court in InreMnrriageofDurbin (1991), 251 Mont. 51,
823 P.2d 243.
In Durbin, this Court held that the receipt of Social Security
benefits by a child based on a parent's disability following a
dissolution of marriage should serve as a credit toward that
parent's child support obligation. Durbin, 251 Mont. at 58, 823
P.2d at 247. We concluded, however, that such an offset
constituted a modification of the original child support decree,
pursuant to § 40-4-208(l), MCA, and limited the application of the
credit to those payments which accrued after the petition for
modification of child support had been filed. Durbin, 251 Mont. at
58, 823 P.2d at 247. Accordingly, we held that the non-custodial
father in Durbin was entitled to a credit for those Social Security
10
benefits received by his children after he had filed a motion to
modify his child support obligation, but denied him credit for
those benefits received prior to the date on which he filed his
petition. Dtrrbin , 251 Mont. at 58, 82.3 P.2d at 247. Our holding
was based, in part, on the language of § 40-4-208(l), MCA, which
provides that a dissolution decree can be modified "only as to
installments accruing subseauent to actual notice to the parties of
the motion for modification." (Emphasis added.)
Upon further review of Durbin, however, we are persuaded that
we were incorrect when we concluded that an offset of a child
support obligation by Social Security benefits constitutes a
modification of the original child support order. As this Court
noted in Durbin,Social Security benefits are paid as a result of a
parent's disability and serve as a substitute for that parent's
lost earning capacity. Durbin, 251 Mont. at 58, 823 P.2d at 249.
As such, those payments are simply a replacement for a parent's
lost wages due to an acknowledged disability. Thus, a credit for
those Social Security benefits does not retroactively modify the
disabled parent's monthly child support obligation; it merely
changes the source of the payments. Therefore, although we affirm
that portion of Duvbin which allowed a credit against a noncustodial
parent's child support obligation for Social Security benefits
received by his children, we reverse that portion of the opinion
which held that a credit for Social Security benefits received
prior to the motion to modify would constitute a retroactive
modification of the district court's original child support order.
11
We also reverse InreMa~riageofMalquisi (1994), 266 Mont. 447, 880 P.2d
1357, to the extent that it adopted Durbin’s rationale.
A majority of states follows the rule that Social Security
benefits received as a result of a parent's disability do not
modify a parent's original child support obligation. See, e.g., Perteet
v.Sumner (Ga. 19801, 269 S.E.Zd 453; InreManiageofHmry (Ill. 1993),
622 N.E.2d 803; Boavdv. Board (Ky. 1985), 690 S.W.Zd 380; Mooneyhamv.
Mooneyham (Miss. 1982), 420 So. 2d 1072; We&v. Wenks (MO. 1991), 821
S.W.Zd 503; Hanthornv.Hanthorn (Neb. 1990), 460 N.W.2d 650; Gr@nv.Avery
(N.H. 19801, 424 A.2d 175; Mu~kv. Mask (N.M. 1980), 620 P.2d 883.
The Illinois Supreme Court, for example, has acknowledged that
Illinois law provides for modification of only future child support
installments, but has held that "a distinction exists between
'crediting an obligation with payment made from another source and
increasing, decreasing or terminating, or otherwise modifying a
specific dollar amount."' Henvy , 622 N.E.2d at 808. Based on its
conclusion that the substitution of Social Security benefits is" not
a retroactive modification of child support, the court has
concluded that
because social security dependent disability benefits are
earned by the noncustodial parent, made on behalf of such
parent, and, in fact, paid at least in part with
contributions from the noncustodial's own earnings,
payment of social security dependent disability benefits
satisfies a noncustodial parent's child support
obligation.
Henry, 622 N.E.Zd at 809.
12
Other courts have rejected Dtrrbin’s rationale that there need
be a modification of the original divorce decree before Social
Security payments can be credited toward a parent's support
obligation. The Missouri Supreme Court, for example, has held that
the minority view, as set forth in Durbin, is "harsh and unjust."
Weaks, 821 S.W.Zd at 506. That court stated:
A minority of states follows the rule that a credit
for social security disability payment is available
against the child support obligation only aflier a
modification by the trial court.
. .
This view, followed by a distinct minority of
jurisdictions, is harsh and unjust. To impose the
requirement of a court proceeding, i.e., modification
hearing, on a party seeking to credit disability payments
received by the custodial parent for the benefit of the
parties' children is overly harsh. In situations
involving disability benefits, the party seeking credit
most likely faces a reduction of income, financial
uncertainty, physical or mental impairment and other
attendant consequences of the disability. The additional
burden of petitioning the court for a modification
typically wastes time and money and helps no one.
Weaks, 821 S.W.Zd at 506-07.
In this case, the Social Security benefits received by Arden's
children were paid as a result of Arden's disability and were a
substitute for Arden's lost earning capacity. Accordingly, we hold
that those benefits should be treated as a contribution from Arden
toward the support of his children and should serve as a credit
toward Arden's monthly obligation. We further hold that the
substitution of the Social Security benefits for Arden's child
support obligation does not constitute a retroactive modification
of the District Court's original child support order, and was
13
therefore immediately effective as a credit against Ardenls child
support obligation.
In this case, because Arden's monthly $250 child support
obligation was completely offset by the monthly $512 Social
Security benefit paid to his children, we hold that Arden was not
liable for any contributions after the Social Security benefits
began. We therefore hold that Arden should be credited for any
contributions made by him personally since that time and that those
credits should be applied to Arden's accrued arrearages. See, e.g.,
Mllerv.Mller (Ky. Ct. App. 1996), 929 S.W.2d 202, 205.
On the basis of our holdings, we reverse the District Court's
order which denied Arden the opportunity to offset his obligation
with the Social Security disability benefits received by his
children and remand to the District Court with instructions to
(1) credit the Social Security benefits received by Arden's
children against Arden's monthly child support obligation, and to
(2) credit Arden for any contributions made by him after the Social
Security benefits began and apply that credit to any arrearages
owed by Arden.
ISSUE 3
Did the District Court err when it refused to apply the
monthly Social Security disability payments made to Arden's two
children in excess of Arden's support obligation as a credit toward
his accrued arrearages?
In this case, the District Court did not apply the Social
Security disability payments received by Arden's children as a
14
credit toward Arden's support obligation, but instead increased
Arden's obligation to a sum equal to the total of his $250 monthly
support obligation and the $512 monthly Social Security benefit.
On appeal, Arden maintains that the District Court should have
offset his $250 monthly obligation with the $512 Social Security
payment and credited the remaining $262 per month to his existing
arrearages.
Although the question of excess benefits has not yet been
addressed by this Court, the majority of jurisdictions faced with
this issue have not allowed the application of excess benefits to
reduce arrearages. See, e.g., Windham v. St&e ex rel. Windham (Ala Civ . App .
1990), 574 So. 2d 853; InreMarringeofRobinson (Cola. Ct. App. 1982),
651 P.2d 454; Kiiwanv.Kirwan (Fla. Dist. Ct. App. 1992), 606 So. 2d
771; Newmanv.Newman (Iowa lPPO), 4 5 1 N . W.2 d 8 4 3 ; In w Marriage of Williams
(Kan. 1995), 900 P.2d 860; Wenksv. Weaks (MO. 1991), 821 S.W.2d 503;
Fuller v. Fuller (Ohio Ct. App. 1976) , 360 N.E.2d 357; Children& YouthSews.
v. Chorgo (Pa. Super. Ct. 1985), 491 A.2d 1374. Those courts reason
that "[a]ny excess is deemed a gratuity to the extent that it
exceeds the amount of support mandated by the decree." We&s, 821
S.W.2d at 507.
This view is consistent with the administrative rules of the
Department of Public Health and Human Services. Specifically,
Rule 46.30.1542(l) (b), ARM, which the Department was authorized to
adopt pursuant to 5 40-5-202(12), MCA, provides:
(1) Social security benefits which are based on the
earning record of the non-custodial parent shall be
15
considered in establishing new support orders or
modification of existing orders under the following
conditions:
. .
(b) the parent's obligation is satisfied if the
amount of the of the child's benefit for a given month is
equal to or greater than the parent's child support
obligation. Any benefit received by the child for a
qiven month in excess of the child suooort obligation is
not'treated as an arrearaqe payment or as future support
. .
(Emphasis added.)
In accord with the other jurisdictions cited that have
addressed this issue, and with Rule 46.30.1542(l) (b), ARM, we hold
that Arden is entitled to credit for the amount of his monthly
obligation for child support, but not exceeding that amount.
Therefore, although we hold that the District Court abused its
discretion when it failed to apply the Social Security benefits
received by Arden's children toward Arden's monthly support
obligation, we further hold that it did not abuse its discretion
when it failed to apply any excess monthly benefits to Arden's
accrued arrearages. We therefore affirm that part of the District
Court's judgment.
ISSUE 4
Did the District Court err when it refused to apply the Social
Security lump sum disability payment made to Arden's two children
as a credit toward his accrued arrearages?
In this case, the District Court made no specific
determination that the Social Security lump sum benefits received
by Arden's children should or should not be credited toward Arden's
accrued arrearages. Instead, the court made a sweeping finding
16
"against Arden on all issues not specifically addressed" in its
order. On appeal, Arden maintains that the District Court abused
its discretion when it failed to grant him credit for a Social
Security lump sum disability payment of $9,728 paid to Joyce for
his children.
As we stated above, Social Security disability benefits are
paid as a result of a parent's disability and serve as a substitute
for that parent's lost earning capacity. In this case, the $9,728
lump sum Social Security payment was paid to Arden's children to
compensate them for overdue benefits for the period from May 1993,
the date of Arden's eligibility, through the date when their
monthly Social Security benefit payments commenced. They were paid
in recognition of Arden's inability to earn income since November
1992. As such, that lump sum was an accumulation of monthly Social
Security payments which accrued for the children's benefit. The
lump sum payment, then, like the other monthly Social Security
disability payments, should have been credited to Arden's monthly
child support obligation for the months during which the lump sum
accumulated. See, e.g., Romero v. Romero (N.M. Ct. App. 1984), 682 P.2d
201, 202.
This interpretation is supported by Rule 46.30.1542(l) cd),
ARM, which provides:
(1) Social security benefits which are based on the
earning record of the non-custodial parent shall be
considered in establishing new support orders or
modification of existing orders under the following
conditions:
. .
17
Cd) whenever a custodial parent receives for the
benefit of the child, a lump sum payment which represents
an accumulation of monthly benefits:
(i) the lump sum payment should not be treated as
income of the parent;
(ii) the lumr, sum should be credited to the child
suooort oblisation for each month a payment accumulated
for the child's benefit .
(Emphasis added.)
We hold that the lump sum payment received by Joyce for the
benefit of her children should have been credited to Arden's child
support obligation from May 1993 until the monthly benefits
commenced. We further hold that, since those benefits completely
offset Arden's monthly support obligation, any support payment made
by Arden during that time was in addition to his actual obligation
and should now be credited to his accrued arrearages. Accordingly,
we reverse the order of the District Court which refused to apply
the Social Security lump sum disability payment made to Arden's two
children as a credit toward Arden's accrued arrearages. We remand
to the District Court with instructions to (1) apply the lump sum
toward any arrearages which accrued during the period of Arden's
disability and prior to the commencement of monthly Social Security
payments to Arden's children, and to (2) credit Arden's accrued
arrearages by the amount of child support paid directly by Arden
during that period.
ISSUE 5
Did the District Court err when it refused to reduce Arden's
accrued arrearages by $1,593.20, as recommended by the Child
Support Enforcement Division?
18
On May 19, 1994, the District Court entered an order in which
it determined that Arden owed child support arrearages in the
aggregate of $17,200.00, in addition to $850 for attorney fees and
$500.00 for past due arrearages, for a total judgment of
$18,550.00. In April 1995, Arden applied to the CSED for a credit
of $4,020.88 against his past-due obligation. Following a review
of Arden's application, CSED granted him credit in the amount of
$1,593.20.
In his memorandum in support of his petition for modification
of child support, Arden maintained that the District Court should
reduce his accrued arrearages by the amount credited by CSED. In
support of his claim, Arden submitted WED's letter granting him a
credit in the amount of $1,593.20 and CSED's debt computation
worksheet which showed Arden's accrued arrearages in the amount of
$15,467.87.l
In its order modifying Arden's child support obligation, the
District Court did not acknowledge CSED's determination that
Arden's past-due arrearages should be reduced. Although the court
did not directly address the issue, it stated:
All prior orders of this Court except as may be
modified herein shall remain in full force and effect.
This includes but is not limited to the iudqment for
child support arrearaoe in the amount of $18,550.
'CSED's computation does not include either the $850 in
attorney fees or the $500 in past due arrearages which the District
Court determined that Arden owed in its order of May 19, 1994.
19
(Emphasis added.) The court allowed, however, that either Arden or
Joyce could have the court's child support award "adjusted by the
CSED. U
The District Court's refusal to apply a credit to Arden's
child support arrearages in the amount of $1,593.20, as allowed by
CSED, was clearly an abuse of discretion. Section 40-5-601(6),
MCA, provides that:
Certified payment records maintained by a clerk of
court or administrative agency authorized by law or by
the support order to collect support are admissible in a
[civil contempt] proceeding under this section and are
prima facie evidence of the amount of support paid and
any arrearages under the support order.
In this case, the Child Support Enforcement Division of the
Department of Social and Rehabilitation Services (now the
Department of Public Health and Human Services) filed a notice of
registration, pursuant to § 40-5-271, MCA, of the District Court's
order of May 19, 1994. Section 40-5-271(4), MCA, provides that
once an order is registered by CSED it "must be treated in the same
manner and have the same effect as a support order issued by the
department." CSED was therefore authorized by law to collect
Arden's child support obligation. Accordingly, pursuant to
§ 40-5-601(6), MCA, its payment records were prima facie proof of
Arden's accrued arrearages.
At the District Court's concomitant hearing on Arden's motion
for child support modification and Joyce's motion for contempt,
Arden submitted CSED's letter granting him a credit in the amount
of $1,593.20 and CSED's debt computation worksheet which showed
Arden's accrued arrearages in the amount of $15,467.87. The
20
exhibits were not objected to as hearsay and were admitted. Both
exhibits constituted prima facie proof, pursuant to § 40-5-601(6),
MCA, that Arden's accrued arrearages pursuant to the District
Court's order of May 19, 1994, had been reduced by $1,593.20.
Because Joyce submitted no evidence to refute that proof, the
District Court was required to accept CSED's determination of
Arden's accrued arrearages, which CSED had calculated should be
reduced by $1,593.20.
We therefore hold that the District Court abused its
discretion when it reaffirmed its judgment against Arden for child
support arrearages in the amount of $18,550.00, without considering
CSED's calculated reduction of Arden's arrearages. We remand to
the District Court with instructions to include in its order
modifying Arden's child support a reduction of his accrued
arrearages by $1,593.20, as calculated by CSED.
On the basis of our holdings, we affirm in part and reverse in
part the child support modification order of the District Court and
remand to that court for a determination of Arden's child support
obligation consistent with this opinion, the Uniform Child Support
Guidelines, and Rule 46.30.1542, ARM.
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