DA 12-0318

IN THE SUPREME COURT OF THE STATE OF MONTANA

2012 MT 244

IN RE THE MARRIAGE OF:

LORA L. WYRICK,

 Petitioner and Appellee,

 and

DONALD H. WYRICK,

 Respondent and Appellant.

APPEAL FROM: District Court of the Sixteenth Judicial District,

In and For the County of Fallon, Cause No. DR 1993-5570

Honorable Joe L. Hegel, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Donald H. Wyrick (self-represented), Baker, Montana

For Appellee:

Lora L. Wyrick (self-represented), Gilbert, Minnesota

Submitted on Briefs: October 2, 2012

 Decided: October 30, 2012

Filed:

__________________________________________

Clerk

October 30 2012
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Justice Brian Morris delivered the Opinion of the Court.

¶1 Appellant Donald H. Wyrick (Donald) appeals from the District Court’s findings of 

fact, conclusions of law, and order modifying child support. We affirm in part and remand 

in part for further proceedings.

¶2 We review the following issues on appeal:

¶3 Whether the District Court abused its discretion when it limited the child support 

modification to the date that Donald filed his motion for modification?

¶4 Whether the District Court abused its discretion when it calculated Donald’s child 

support obligations?

¶5 Whether the District Court violated Donald’s due process rights?

PROCEDURAL AND FACTUAL BACKGROUND

¶6 Donald and Lora L. Wyrick (Lora) filed for dissolution in 1993. At that time, Donald 

and Lora entered into a separation agreement that required Donald to pay child support in the 

amount of $150 per month for each of their three minor children and maintenance in the 

amount of $150 per month. Lora moved to Minnesota in 1994 where she applied for public 

assistance. Lora assigned her rights under the separation agreement to Minnesota Child 

Support Enforcement Division (Minnesota CSED) as a condition of her receipt of public 

assistance. 

¶7 Minnesota CSED requested that Montana Child Support Enforcement Division 

(Montana CSED) collect child support from Donald. Montana CSED mistakenly assumed 

that the separation agreement constituted a district court order and commenced enforcement. 

Montana CSED added a fourth child born to the parties after the 1993 separation agreement 
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and set Donald’s child support obligation at $156 for each of the now four minor children for 

a total monthly obligation of $624. Montana CSED eventually suspended Donald’s driver’s 

license due to his failure to comply with his child support obligations.

¶8 The District Court finally entered a dissolution decree in 1999 after the parties had 

failed at several attempts at reconciliation. One of these failed reconciliation attempts had 

produced the fourth minor child. The court noted that Montana CSED had been enforcing 

the child support obligations contained in the separation agreement. The court found 

Donald’s support obligations to be unconscionable in light of his annual income of $12,000. 

The court instead imposed a child support obligation of $50 per child per month. 

¶9 Montana CSED recognized its error in enforcing against Donald the support 

obligations contained in the separation agreement when the District Court never had 

approved the separation agreement. Montana CSED restored Donald’s driver’s license. As 

a result of its mistake, Montana CSED moved to intervene in the proceeding in light of its 

statutory interest in recovering what it claimed to be Donald’s child support obligations. The 

District Court joined Montana CSED as a party on February 16, 2000.

¶10 Montana CSED promptly filed a motion for an order to approve the 1993 separation 

agreement and its accompanying child support obligations for Donald. Montana CSED 

recognized that it lacked authority to enforce Donald’s support obligations contained in the 

separation agreement without an order from the court to adopt the agreement. Montana 

CSED sought to collect the support debt from Donald that had accrued between the 1993 

execution of the separation agreement and the court’s entry of the dissolution decree and its 

$50 per child per month support obligation for Donald. The District Court granted Montana 
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CSED’s motion over Donald’s objection on June 21, 2001. The court concluded that Donald 

owed $22,542.85 in unpaid support.

¶11 The matter simmered for several years with what appears to be partial compliance by 

the parties with the duties and obligations with respect to parenting and child support. Lora 

filed a motion for civil contempt on August 29, 2006, in which she alleged that Donald had 

fallen behind in his child support obligations contained in the District Court’s order of June 

21, 2001, and that Donald improperly was preventing one of their minor sons from returning

to Minnesota after a visit with Donald in Montana. Donald denied the allegations and 

requested that the parenting plan be modified to allow his minor son to live primarily with 

him in Montana.

¶12 The parties eventually resolved their differences temporarily through a stipulated 

amended child support agreement filed with the court on October 10, 2007. The parties 

agreed that the minor son would reside primarily with Donald. Donald paid back child 

support in the amount of $19,150.00 since September 1, 2006. Donald further agreed to pay 

accrued child support in the amount of $21,116 for the period September 2006 through 

September 2007. Donald also agreed to pay Lora monthly child support of $2,273.00 

beginning June 1, 2007, and for each month thereafter until modified by the court. 

¶13 Donald’s ability to clear his back child support obligations and pay an increased 

monthly amount arose from his discovery of a largely intact 65 million year old fossil of a 

tyrannosaurus rex dinosaur on his property sometime in 2006. Donald apparently sold the 

10-foot tall fossil, known as Wyrex, for a substantial sum. Wyrex now sits on display at the 

Houston Museum of Natural Sciences. Wyrex possesses the best-preserved hands and feet 
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of any specimen ever discovered, and boasts a hand bone that has never before been 

reported. http://blog.hmns.org/2012/05. Donald received $25,000 per month as his share of 

the Wyrex payments.

¶14 The Wyrex money apparently did not last forever, however, as Donald filed a motion 

for modification of child support on April 10, 2009. Donald alleged that his payments under 

the Wyrex sales contract had ended on August 31, 2008, and since that date his farming and 

ranching business constituted his sole source of income. Donald apparently signed an 

affidavit for his lawyer in October 2008 in support of the motion to modify child support. 

Donald’s lawyer failed to file the motion, however, until April 2009. The District Court 

directed Donald and Lora to file updated child support affidavits. Donald and Lora 

eventually filed the updated information.

¶15 Donald had assumed that the stipulated amended child support agreement filed with 

the court on October 10, 2007, contained a provision that his child support obligation would 

change automatically upon cessation of his Wyrex payments in 2008. The stipulated 

amended agreement contained no such provision. As a result, the District Court determined 

that it could modify Donald’s child support obligations only for the period after Donald filed 

his motion in April 2009. In the interim, Montana CSED informed Donald in July 2009 that 

it intended to suspend his commercial driver’s license based on his unpaid support 

obligations. Donald’s license apparently remains suspended.

¶16 The fact that the District Court did not hold a hearing on the matter until December 

2010 further delayed resolution. In fact, the court had not ruled on the issue by October 
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2011. Donald at that point filed a motion with updated information. The court eventually 

entered its findings of fact, conclusions of law and order on October 4, 2011. 

¶17 The court found that Donald earned $10,460.00 in 2009 from his farming/ranching 

operation. The court added the sum of $11,000 of the scheduled depreciation back into 

Donald’s income for a total income in 2009 of $21,460.00. The court specifically excluded 

the $10,637.06 that Donald earned from Franz Construction, Inc. from Donald’s child 

support calculation in light of Donald’s financial obligations to his subsequent family from 

his current marriage. The court found that Donald’s child support obligation should be $139 

per month for each of the parties’ remaining two minor children. The court further offset 

Donald’s child support obligations by $124 per month, or $62 per child per month, to reflect 

Lora’s receipt of social security benefits. This final adjustment left Donald with a child 

support obligation of $155 per month.

¶18 The court also recognized that Donald had overpaid child support in the previous 

years. The court determined, however, that it lacked sufficient information to determine the 

exact amount that Donald had overpaid. The court directed Donald’s counsel to submit a 

spreadsheet, supported by an affidavit, that set forth Donald’s payments and accrued 

amounts to allow the court to calculate the amount of overpayment. Donald’s overpayment 

led the District Court to conclude that, retroactive to May 2009, all of Donald’s future child 

support payments would cease. 

¶19 Donald’s lawyer filed a response in which he indicated Donald no longer could afford 

to pay his lawyer. Donald’s lawyer attached to his response Donald’s pro se calculations and

revised proposed findings of fact and conclusions of law. The court characterized Donald’s 
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response as a failure to “do the math” requested in the court’s previous order. The District 

Court issued its final ruling in December 2011 on Donald’s motion.

¶20 The District Court corrected its earlier ruling in December 2011 when it found that 

Donald still had an arrearage from earlier missed child support payments. These missed 

payments took place after Donald’s payments on the Wyrex sale had stopped, but before he 

had filed his motion for modification. Donald’s calculations show payments stopping as of 

June 2008. The court determined that it could not modify the amount of Donald’s payments 

back to 2008 in light of the fact that Donald had failed to file his motion for modification 

until April 2009. The court concluded that the arrearages totaled $11,448.18. A subsequent 

calculation performed by Montana CSED at the court’s request reduced Donald’s arrearages 

to $9,631.28. The court further concluded that Donald’s income supported a continuing 

child support obligation of $155 per child per month until the final child reaches the age of 

18 and graduates from high school. Donald appeals.

STANDARD OF REVIEW

¶21 We review for clear error a district court’s findings of fact in child support 

modification cases. In re Marriage of Damschen, 2011 MT 297, ¶ 22, 363 Mont. 19, 265 

P.3d 1245. We review de novo questions of law. Damschen, ¶ 22.

DISCUSSION

¶22 Whether the District Court abused its discretion when it limited the child support 

modification to the date that Donald filed his motion for modification?

¶23 Donald argues the District Court should have made the modifications retroactive to 

August 2008 as both parties had intended to include the modification upon the cessation of 
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the Wyrex payments in the stipulated amended child support agreement filed with the court 

on October 10, 2007. The District Court correctly noted that the stipulated amended child 

support agreement contained no mention that Donald’s Wyrex-enhanced monthly support 

obligations would end automatically upon the cessation of the Wyrex payments in August 

2008. Donald concedes that the stipulated amended child support agreement that the parties 

filed with the court contained no provision regarding automatic modification upon cessation 

of the Wyrex payments. Donald failed to file his motion for modification of his support 

obligations until April 2009. 

¶24 The court revised downward Donald’s support obligations as of the date that he filed 

his motion for modification in April 2009. Section 40-4-208, MCA, allows a court to modify 

a child support order “only as to installments accruing subsequent to actual notice to the 

parties of the motion for modification.” Donald provided notice to Lora of his motion for 

modification on April 10, 2009. The District Court lacked authority to extend the 

modification to any date before April 10, 2009. In re Marriage of Pfennigs, 1999 MT 250, 

¶ 23, 296 Mont. 242, 989 P.2d 327.

¶25 Whether the District Court abused its discretion when it calculated Donald’s child 

support obligations?

¶26 Donald further contends that the District Court erroneously determined the amount of 

modified support that he owed. Donald takes issue with the court’s consideration of 

depreciation and its failure to give Donald credit for all the insurance and medical payments 

he made for the children. Donald also contends that the court failed to take into account 

changes in custody with one of the children who came to live with Donald in August 2008. 
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¶27 The District Court struggled to resolve a hopelessly convoluted child support 

arrangement that festered for nearly 20 years. The parties did little to aid the District Court 

in resolving the matter. We remain unable to reconcile, however, the seemingly 

contradictory orders of the court regarding Donald’s continuing support obligations and the 

amount of arrearages that Donald owes. 

¶28 The court declares in its order of October 3, 2011, that Donald “owes no future 

obligation of child support to [Lora] in that the social security received by the two minor 

children exceed the amount of child support” that Donald would owe to Lora. The court 

further declares in that same order that Donald has overpaid child support. In fact, the court 

directed Lora to repay “any overpayments” made by Donald. 

¶29 By contrast, the court reverses course in its supplemental order of December 20, 2011. 

The court concludes that Donald continues to owe $155 per month in child support to Lora. 

The court offers no new finding of fact to support the change from the finding in the court’s 

October 3, 2011, order in which the court concluded that Donald’s child support obligations 

should cease. The court further concludes that Donald has not overpaid child support. To 

the contrary, Donald still owes $11,448.18. Montana CSED revised downward this 

outstanding balance to $9,631.28.

¶30 The Court’s inability to reconcile these seemingly disparate findings and conclusions 

between the District Court’s two orders lead us to conclude that a remand would be 

appropriate. The District Court’s “Schedule A,” attached to the December 20, 2011, order 

fails to illuminate sufficiently the difference in the outcome of the two orders. The court’s 

supplemental order of December 20, 2011, fails to set forth the justification for the change 
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from the court’s earlier order. Moreover, the adjustments made by Montana CSED further 

raise questions as to whether all parties have used the same “math” to reach these outcomes. 

¶31 We need not address Donald’s due process claims in light of our decision to remand 

the issues of Donald’s continuing support obligations and the outstanding balance that he 

owes on unpaid child support. In light of the substantial delays in the matter, however, the 

District Court also should address any claims raised by Donald regarding the collateral 

consequences of his failure to pay outstanding child support obligations, including the 

suspension of his driver’s license. We remand these two issues to the District Court for any 

further proceedings necessary.

/S/ BRIAN MORRIS

We Concur:

/S/ BETH BAKER

/S/ MICHAEL E WHEAT

/S/ PATRICIA COTTER

/S/ JIM RICE