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: ~istrict Court 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 - 

all of 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. 
4 We concur: /' 4 ,7:f-7/< 

C ief Justice