No. 91-515 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

IN RE THE MARRIAGE OF ANITA WILSEY, 

Petitioner and Respondent, 

-vsCHRISTOPHER JOSEPH WILSEY, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Joel G. Roth, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Don A. LaBar; Church, Harris, Johnson & Williams, 

Great Falls, Montana. 

For Respondent: 

James R. Walsh; smith, Walsh, Clarke & Gregoire, 

Great Falls, Montana. 

Filed: fd,~'~ 5 - 1992 

Submitted on Briefs: 

Decided: 

April 3, 1992 

May 5, 1992 
Justice Fred J. Weber delivered the Opinion of the Court. 

The District Court for the Eighth Judicial District, Cascade 

County, granted Anita Wilseyts (Mrs. Wilsey) motion for judgment on 

the pleadings, or in the alternative, summary judgment. 

Christopher Joseph Wilsey (Mr. Wilsey) appeals. We reverse and 

remand. 

We restate the issue as follows: 

Did the District Court err in holding that Mr. WiLsey owed 37 

months of child support at $1500 per month, less $3300 paid, and in 

holding that he owed $1500 per month until the children graduated 

from high school, without regard to the sale of his limited 

partnership interest? 

Mr. and Mrs. Wilsey were married in San Francisco, California 

on July 2, 1978. There were three children born of the marriage. 

On June 3, 1988, the parties entered into a separation 

agreement. The agreement was signed by the parties and was signed 

and approved by their respective attorneys. 

Paragraph three (3) of the agreement provided: 

That the interest of Chris in the limited partnership, 

Pyrite Investors, shall be liquidated and the proceeds 

placed in trust for the payment of child support in the 

total amount of $1,500.00 per month to Anita. When the 

youngest child reaches majority or is otherwise 

emancipated, any funds remaining in the trust will be 

distributed to the children. An independent trustee, 

possibly Steve Wilsey, will manage the trust; 

Mrs. Wilsey filed a petition for dissolution on August 25, 

1988. She subsequently filed an amended petition for dissolution 

in which she alleged the existence of the June 3, 1988, separation 
agreement and requested enforcement of the agreement. 

In his answer, Mr. Wilsey admitted that the separation 

agreement existed but denied that it was final. Rather, he alleged 

that the agreement was entered into due to extreme economic 

pressure, and contended that the agreement was invalid and 

unenforceable. 

On June 25, 1991, over 3 years after the execution of the 

separation agreement, Mrs. Wilsey filed a motion for judgment on 

the pleadings, or in the alternative, summary judgment, and a 

motion for determination of child support arrearages. Mr. Wilsey 

filed his brief in response to the motions on July 1, 1991. The 

District Court also received an affidavit from Mrs. Wilsey's 

attorney, Richard Dzivi, as well as an affidavit from Mr. Wilsey. 

A hearing was held on July 31, 1991. 

The District Court determined that the parties had equitably 

divided all property and debts not disposed of in the settlement 

agreement. It then granted Mrs. Wilsey's motion for judgment on 

the pleadings, or in the alternative, summary judgment, finding 

that the settlement agreement was final and not unconscionable. In 

that regard the court found: 

37. The June 3, 1988 Property Settlement Agreement 

is enforceable and not unconscionable, and should be 

approved. [Mr. Wilsey's] child support obligation has 

been accruing for 37 months at the rate of $1,500.00 per 

month for a total arrearage of $55,500.00. [Mr. Wilsey] 

has paid $3,300.00 in child support. Accordingly, [Mr. 

Wilsey] is indebted to [Mrs. Wilsey] for the sum of 

$52,200.00 for past-due child support. 

The court then concluded: 

3. [Mr. Wilsey] owes a child support arrearage of 
$52,200.00 to [Mrs. Wilsey]. She is entitled to 

immediate execution therefor. 

4. [Mr. Wilseyj shall pay to [Mrs. Wilsey] the sum 

of ONE THOUSAND FIVE HUNDRED AND N0/100 DOLLARS 

($1,500.00) per month as and for the care, support and 

maintenance of said minor children until they graduate 

from high school, except while they are wholly self 

supporting or otherwise emancipated. 

5. Said payments shall commence immediately . . . Mr. Wilsey appeals from that portion of the ~istrict Court's order 

concerning child support. 

Did the District Court err in holding that Mr. Wilsey owed 37 

months of child support at $1500 per month, less $3300 paid, and in 

holding that he owed $1500 per month until the children graduated 

from high school, without regard to the sale of his limited 

partnership interest? 

Mr. Wilsey maintains that under paragraph three of the 

separation agreement, he was to pay child support at $1500 per 

month only after he liquidated his interest in Pyrite Investors and 

placed the proceeds in trust for the payment of such child support. 

Thus, he contends that since his interest in Pyrite Investors has 

yet to be liquidated, no obligation to pay child support under the 

agreement has yet accrued. 

Again, paragraph three (3) of the agreement provided: 

That the interest of Chris in the limited partnership, 

Pyrite Investors, shall be liquidated and the proceeds 

placed in trust for the payment of child support in the 

total amount of $1,500.00 per month to ~nita. When the 

youngest child reaches majority or is otherwise 

emancipated, any funds remaining in the trust will be 

distributed to the children. An independent trustee, 

possibly Steve Wilsey, will manage the trust; 

Both parties agree that Mr. Wilsey's limited partnership interest 
in Pyrite Investors has not yet been liquidated. As a result, 

there are no proceeds from the liquidation of that partnership 

interest which can be placed in trust for the payment of child 

support of $1500 per month as provided in the agreement. In itself 

the separation agreement fails to provide what should happen 

regarding the payment of child support in the event that the 

limited partnership interest is not liquidated. We conclude that 

because of the failure to liquidate the Pyrite Investors limited 

partnership interest, there is no basis under the separation 

agreement for the District Court child support arrearage order of 

$52,200, or the award of $1500 per month. The materials considered 

by the District Court on summary judgment indicate there are issues 

of fact as to the value of the partnership and as to the reasons 

for failure to liquidate. In addition, there appear to be issues 

of fact as to the capacity of Mr. Wilsey to pay the obligation of 

child support as ordered by the District Court. There are also 

issues of fact with regard to the amount of child support which may 

be due without regard to the separation agreement provision. In 

view of these issues of fact, summary judgment was not appropriate. 

We hold that the District Court erred in its holding that Mr. 

Wilsey owed 37 months of child support at $1500 per month, less 

$3300 paid, and holding that he owed $1500 per month, all under the 

separation agreement. 

In reaching the above conclusion, we are not suggesting that 

Mr. Wilsey does not have child support obligations to his children. 

As pointed out in State Dept. of Revenue v. Hubbard (1986), 222 
Mont. 156, 160, 720 P.2d 1177, 1179, child support is a social and 

moral obligation imposed by law without court action, and whether 

or not a court has ordered payment of child support, a parent has 

an obligation to pay it. The materials considered by the District 

Court indicate that Mr. Wilsey has failed to adequately meet his 

child support obligations. This issue will properly be considered 

on remand. 

We reverse the District Court's holding that under the 

separation agreement, Mr. Wilsey owed a child support arrearage to 

Mrs. Wilsey in the amount of $52,200, and that he was obligated 

under that agreement to pay $1500 per month in child support until 

the children graduate from high school. We remand to the District 

Court for a determination of the proper amount of child support to 

be paid by Mr. Wilsey and for determination of such issues as the 

court finds exist with regard to the liquidation of the Pyrite 

Investors partnership interest, and for such other matters as the 

court deems appropriate, including the issue of amendment of 

pleadings. Without ruling upon the same, we note that the Rules of 

Civil Procedure have been broadly construed to permit amendments of 

pleadings such as those originally s 

We Concur: A