No. 87-460 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

IN RE THE SUPPORT OF 

CAROLYN ELLEN KRUG and 

CRISTINA ESTEE KRUG, Minor Children. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable G. Todd Baugh, Judge presiding. 

COUNSEL OF RECORD: 

CrossFor Appellants/Respondents: 

Kevin T. Sweeney; Sweeney & Healow, Billings, Montana 

For Respondent/Appellant: 

Fred E. Work, Jr., Work Law Firm, Billings, Montana 

Submitted on Briefs: Jan. 28, 1988 

Decided: March 8, 1988 

Filed: MAR 8 - 1988' 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

The District Court for the Thirteenth Judicial District, 

Yellowstone County, ordered the father to pay prospective 

child support, finding unconscionable a stipulation by which 

the father and mother had agreed the father would not be 

responsible for any child support. The father appeals and 

the children cross appeal-. We affirm. 

We restate the issues raised by the father as: 

1. Do the doctrines of collateral estoppel and equitable estoppel bar the relief sought by the minor children? 

2. Does S 40-4-208 (31 (b) (ii) , MCA, bar the children's 

petition? 

3. Does 5 40-6-211, MCA, preclude relief in this case? 

4. Should the children's petition have been brought 

under the action dissolving the parents' marriage? 

The children raise the issues of whether it was error to 

fail to award past support and support during the pendency of 

this action. 

The parents' marriage was dissolved in 1978. Custody of 

the two minor children was awarded to the mother. The father 

was ordered to pay $200 per month in child support, plus 

certain medical costs. In 1980, the parents entered a stipulation wherein they agreed that 1) the father would be relieved of any future duty to support the children, 2) the 

mother would give the father upon his request a satisfaction 

of judgment for child support, 3) the father would forego his 

right to visitation with the children, 4) the father would 

permit future adoption of the children by anyone the mother 

would select, and 5) the father would not contest the guardian appointed in the mother's will. The District Court ordered that the dissolution decree be amended by the 

stipulation. 
In March 1987, the children petitioned the court to set 

reasonable child support and to require the father to pay 

past, present, and future child support to the mother, along 

with medical, dental, and health insurance coverage. The 

absence of a guardian ad litem is not an issue in this case. 

See Rule 9 (a) , M. R. Civ. P. Both parents filed affidavits 

setting forth their assets and liabilities, income and expenses. The mother's affidavit shows that she is a court 

secretary and holds a second job. Her monthly income available for child support purposes is $1,083. The father's 

affidavit states that he is employed at the Cenex Refinery in 

Laurel, Montana. His monthly income available for child 

support purposes is $1,838.48. Both parents' employment is 

relatively secure. The mother lists $1,667 in monthly expenses for herself and the children. 

The matter was submitted to the court on the parties' 

briefs, the affidavits, and an agreed statement of facts. 

The court denied the request for past child support on equitable grounds. However, as to future child support, the 

court refused to honor the parents' stipulation. It ordered 

the father to pay the mother $285 per month per child beginning the next month. It also ordered the father to provide 

health insurance for the children through his employment and 

to contribute 63% of their uninsured health care costs. 

1 

Do the doctrines of collateral estoppel and equitable 

estoppel bar the relief sought by the minor children? 

Collateral estoppel bars the same parties from 

relitigating issues on which a final judgment has been entered in a different cause of action. Matter of Unfair Labor 

Practice No. 38-80 (Mont. 1986), 720 P.2d 1181, 1182, 43 

St.Rep. 1148, 1150. Under 5 40-4-208, MCA, future support 
installments may be modified. Thus, they are not final 

judgments for purposes of collateral estoppel. We hold that 

collateral estoppel does not bar modification of the father's 

future child support obligation. 

The father cites three opinions of this Court in support 

of his argument that equitable estoppel bars the relief 

sought by the minor children. In the first, State ex rel. 

Blakeslee v. Horton (Mont. 1986), 722 P.2d 1148, 43 St.Rep 

1321, we affirmed the district court's order denying the 

mother's claim for child support following a 14-year agreement whereby the father paid no support and had no contact 

with the child. We cited the lower court's statement that 

there was no proof of a present actual need for the support 

requested. In the second case cited, the mother had been 

awarded custody of the children. However, the parents had 

made an express agreement under which the father had assumed 

custody of the children. The lower court concluded that the 

mother was estopped from enforcing the support provisions of 

the dissolution decree. We affirmed. In re Marriage of Cook 

(Mont. 1986), 725 P.2d 562, 43 St.Rep. 1732. In the third 

case cited, the parties had entered an oral agreement reducing the amount of child support the father would pay during 

periods when he was laid off work. This Court held that the 

relative financial abilities of the parties made the terms of 

the previous support order, which the mother sought to enforce, unconscionable. In re Marriage of Jensen (Mont. 

1986), 727 P.2d 512, 43 St.Rep. 189. 

The equitable considerations in this case contrast with 

those in Blakeslee, Cook, and Jensen. Here, it is the children, and not the mother, who petition for support. The 

children were not parties to the stipulation bet-ween the 

mother and the father, and the children, not the parents, are 

the beneficiaries of child support. More importantly, in the 
present case it is not disputed that the support requested is 

necessary and that the father has the ability to contribute 

what the mother cannot. The lower court granted the petition 

for future support. We hold that under the circumstances 

presented here, equitable estoppel does not bar the petition. 

Does S 40-4-208 (2) (b) (ii) , MCA, bar the children's 

petition? 

The father argues that the stipulation between the 

parents is valid under 5 40-4-208I2) (b) (ii), MCA, and that no 

basis has been shown for modifying the stipulation. Section 

40-4-208 (2) (b) , MCA, provides: 

(b) Whenever the decree proposed for modification contains provisions relating to maintenance 

or support, modification under subsection (1) may 

only be made: 

(i) upon a showing of changed circumstances 

so substantial and continuing as to make the terms 

unconscionable; or 

(ii) upon written consent of the parties. 

The lower court stated that "[aln agreement which attempts to abrogate child support forever is unconscionable in 

all but the most strained circumstances" and that the stipulation for no support in this case was "unconscionable ab 

initio. " An unconscionable stipulation does not attain 

validity by virtue of being signed by the parties. However, 

because the stipulation was incorporated into the dissolution 

decree, it is, in effect, a support decree proposed for 

modification. While the lower court did not make a specific 

finding of unconscionability under 5 40-4-208 (2) (b) (i) , MCA, 

we again point out that a need for future support has been 

established and is not contested. We hold that the petition 

was not barred by this statute. 
111 

Does $ 40-6-211, MCA, preclude relief in this case? 

Section 40-6-211, MCA, provides: 

Obligations of parents for the support and education of their children. The parent or parents 

entitled to the custody of a child must give him 

support and education suitable to his 

circumstances. 

The father argues that this statute precludes relief unless 

there is a showing that the mother, as the custodial parent, 

can no longer provide the minor children with support and 

education suitable to their circumstances. 

This statute was enacted as part of the Civil Code of 

1895. It is not a part of the major revision of Montana's 

termination of marriage, child custody, and support statutes 

adopted in 1975. We hold that this statute does not relieve 

a noncustodial parent of obligations of support under Montana's other child support laws. 

IV 

Should the children's petition have been brought under 

the action dissolving the parents' marriage? 

This argument is raised for the first time on appeal. 

While it may have some technical merit, we note that the 

parents' dissolution was also a Yellowstone County action. 

We hold that this issue, raised for the first time on appeal, 

does not present grounds for reversal. 

v 

Did the court err by not ordering past child support? 

The children cite this Court's opinion in Marriage of 

Neiss (Mont. 1987), 743 P.2d 1022, 44 St.Rep. 1695. In that 

case, after a decree had been entered ordering the father to 
pay the mother monthly child support, the parents had agreed 

that the father would pay the mother several quarterly installment payments, and that the mother would then release 

him from further obligations for child support and maintenance. This Court quoted the best interest of the child test 

as the standard, then held the parents' agreement void as 

against public policy. "Equitable estoppel must be found by 

the trial court upon clear and compelling evidence to override the provisions of s 40-4-208, MCA." Neiss, 743 P.2d at 

1024 (citing Cook). 

Here, in addition to an absence of support for some 

seven years, there was also a complete absence of contact 

between the father and the children for that period. As the 

district court stated, "while this court could restore the 

monetary child support which should have been paid by respondent it cannot restore the missed visitation to respondent." 

Additionally, there was no evidence that the children now 

require that the past child support be paid. We hold that 

clear and compelling evidence supports the court's refusal to 

award past child support. 

VI 

Did the court err by failing to award support during the 

pendency of this action? 

Section 40-4-208, MCA, provides that "a decree may be 

modified by a court as to maintenance or support only as to 

installments accruing subsequent to actual notice to the 

parties of the motion for modification." The children point 

out that their father received actual notice of the motion 

for modification when they filed their petition. They say 

the court erred by failing to award support from that time 

forward. 
The statute leaves discretion in the trial court as to 

when modification takes effect. In re Support of Rockman 

(Mont. 1985), 705 P.2d 590, 592, 42 St.Rep. 1323, 1326. In 

light of all circumstances, we do not hold the lower court in 

error in exercising its discretion as it did. 

Affirmed .