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: 

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# -1992 Submitted on Briefs: Decided: April 3, 1992 May 5, 1992Justice Fred 

### J. Weber delivered the Opinion of the Court.

The District Court for the Eighth Judicial District, Cascade County,granted AnitaWilseyts(Mrs.Wilsey) motion for judgmenton 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 inholding that Mr. WiLsey owed 37 months of child supportat $1500permonth, less $3300paid, and in holding that he owed $1500per month until the children graduated from high school, 

### without regard to 

### the sale of 

### his limited partnership interest? Mr. andMrs. Wilsey weremarried 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 agreementwas signedby theparties and was signed and approved by their respective attorneys. Paragraph three (3) of the agreementprovided: 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 inthe 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 

### inwhich she alleged the existence of the June 3, 1988, separationagreement and requested enforcement of the agreement. In his answer, Mr. Wilsey admitted that the separation agreementexistedbut denied that itwas 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 agreementwas final and notunconscionable. In that regard the court found: 37. TheJune 3, 1988 Property Settlement Agreement is enforceable and not unconscionable, and should be approved. [Mr. Wilsey's] child support obligation has been accruing for 37months 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 supportarrearage of$52,200.00 to [Mrs. Wilsey]. She 

### is entitled to immediate execution therefor. 4. [Mr. Wilseyj shallpay 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 shallcommence immediately

# .

# .. Mr. Wilsey appeals from thatportion 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 $1500permonth, less $3300paid, 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 onlyafterhe liquidatedhis interest in Pyrite Investorsand placed theproceeds in trust for thepayment of such child support. Thus, he contends that since his interest in Pyrite Investors has yet to be liquidated,

### no obligation topay child supportunder the agreement has yet accrued. Again, paragraph three (3) of the agreementprovided: 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

### permonth asprovided in theagreement. 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 theaward of $1500

### per month. Thematerials considered by theDistrict Court on summary judgment indicatethereare 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 issuesof factwith regardto theamount of child supportwhichmay be due without regard to the separation agreement provision. In view of these issues of fact,summary judgmentwasnot 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, andholding thathe owed $1500

### permonth, all under the separation agreement. In reaching the above conclusion,we are not suggesting that Mr. Wilsey does nothave child support obligationstohis children. As pointed out in State Dept. of Revenue v. 

### Hubbard (1986), 222Mont. 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 topay it. Thematerials consideredby the District Court indicate that Mr. Wilsey has failed to adequately meet his child support obligations. This issue will properlybe considered

on remand. We reverse the District Court's holding that under the separation agreement,Mr. Wilsey owed a child supportarrearage to Mrs. Wilsey in the amount of $52,200, and that he was obligated under that agreement topay $1500 per month in child supportuntil the children graduate fromhigh school. We remand to the District Court for a determination of theproper 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 rulingupon the same,we note that theRules of Civil Procedurehavebeen broadly construed topermit amendments of pleadings such as those originally s

We Concur: A