No. 93-338 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2994 

CAROL ANN WILLOUGHBY, 

Petitioner and Appellant, 

-v- - - 

i- i;3 2 8 1994 

ROLAND B. LOOMIS, .-- ,1 T ,$..:J 

,c; L<.:' " -:+{ 

Respondent and Respondent. (-.& <: :-,. ,. """ ."" QS ~;i,-.;<."~,:>.... ... I * , <:c;'lhzfip :-;.*tz 37 k*, , .-.. , i i;"4 .tiin 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Beaverhead, 

The Honorable Frank M. Davis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Thomas R. Scott, Beaverhead County Attorney, Dillon, 

Montana; Hon. Joseph P. Mazuxek, Attorney General, 

Helena, Montana; April Armstrong, Child Support 

Enforcement Division, Great Falls, Montana 

For Respondent: 

Vincent J. Kozakiewicz, Xozakiewicz Law Office, 

Dillon, Montana 

Submitted on Briefs: December 9, 1993 

Filed: 

Decided: February 24, 1994 
Justice Fred J. Weber delivered the Opinion of the Court. 

This is an appeal from an order of the Fifth Judicial 

District, Beaverhead County, relating to the enforcement of child 

support payments under the Revised Uniform Reciprocal Enforcement 

of Support Act (RURESA). We reverse and remand. 

We consider the following issues on appeal: 

I. Did the District Court err in determining that Loomis 

should pay $10,000 in child support instead of the $13,000 actually 

owed? 

11. Did the District Court err by ordering the child support 

paid into a trust for the educational purposes of the child? 

111. Did the District Court err when it discharged the State 

of Montana as a party to this action under the applicable version 

of RURESA? 

IV. Did the District Court err in determining that the child 

had reached the age of majority and was now the real party in 

interest? 

Carol Ann Willoughby (Willoughby) and Roland B. Loomis 

(Loomis) were divorced in 1978. One daughter was born to the 

marriage in October of 1974. The divorce decree, issued from 

Jefferson County, ordered Loomis to pay $125 per month in child 

support. Although Loomis provided his daughter with sums of money 

and clothing from 1978 until 1987, he did not pay any support. He 

provided no defenses to this failure. Nor did Loomis introduce 

evidence showing the extent of the money he did give to his 

daughter. 

2 
On May 29, 1987, the Jefferson County Attorney initiated this 

RURESA action in the Fifth Judicial District Court, Jefferson 

County in an attempt to collect back child support for the nine 

years following the couplels divorce. Willoughby alleged that 

Loomis owed $13,000 in back child support. The RURESA petition for 

support enforcement also asked for current child support payments 

in the judicially set amount of $125 per month. 

The action was certified to the Fifth Judicial District Court, 

Beaverhead County, where ~oomis resides and the Beaverhead County 

Attorney continued the action on ~illoughby's behalf. On June 8, 

1987, the District Court in Beaverhead County ordered Loomis to 

appear and show cause why he should not be ordered to pay the 

current and delinquent support alleged in the RURESA petition. 

On July 2, 1987, the court issued an order based on the 

testimony at the show cause hearing stating that ~oomis was 

obligated to pay the $125 per month support. The order denied 

Willoughbyls claim for delinquent child support and indicated that 

an evidentiary hearing was needed regarding this delinquency. No 

notice of entry of judgment was filed. 

The Beaverhead County Attorney sought a further hearing which 

was held in September of 1987. This hearing at which both 

Willoughby and Loomis testified was followed by an October 16, 1987 

order in which the court determined that Loomis owed back child 

support. Within this document, the court outlined provisions for 

a trust to 

in lieu of 

be established in the name 

payment of the total amount 

of the daughter for $10,000 

of back child support. The 
trust was to contain $10,000 by October of 1992 and was then to be 

given to the child who would then have reached the age of majority. 

In March of 1988, the Beaverhead County Attorney sought to 

have Loomis held in contempt for not establishing the trust. At an 

April hearing, Loomis testified that he had failed to establish the 

trust under the court guidelines. He had opened the trust with a 

$40 deposit, but later drew that out. Throughout this time, Loomis 

continued to make his regular current payments of $125 per month. 

In April of 1988, the court denied the motion for contempt and 

refused to amend the judgment. The court determined that failure 

to establish the trust payments according to the court's order was 

a "harmless dilatory act." 

On January 21, 1993, the Beaverhead County Attorney filed a 

Motion and Order to Show Cause, again requesting that Loomis be 

held in contempt for complete failure to comply with the court's 

orders. The petition alleged that the trust contained no money on 

October 20, 1992, the time set for the $10,000 to have accumulated 

in the trust. During a hearing held on February 12, 1993, Loomis 

admitted that he had not complied with the court's earlier order. 

The court stated at that time that the judgment was intended to be 

a stay of execution which Loomis could discharge by making deposits 

into the trust account. 

The ensuing March 18, 1993 order stated that Loomis had failed 

to pay $10,000 into the trust account and that the child was now an 

adult who could execute on the judgment. The court dismissed the 

State as a party and determined that a contempt order was not 
appropriate. 

The Beaverhead County Attorney filed a Motion for 

Reconsideration of Findings and Order, dated April 19, 1993. The 

court issued its final order on May 1993 denying the motion for 

reconsideration and prohibiting the State of Montana from any 

further action in this case. The State of Montana has filed an 

appeal from the May 3, 1993 order and from the earlier orders in 

this case. 

I 

Did the District Court err in determining that Loomis should pay 

$10,000 in child support instead of the $13,000 actually owed? 

The State argues that the District Court had no foundation for 

setting the amount of child support arrearage at $10,000. The 

State contends that Loomis never denied that he owed the $13,000 in 

back child support and the court never indicated why it reduced the 

$13,000 total by $3,000. The State contends that retroactive 

modification of support is not permitted by Montana law. 

Loomis argues that Willoughbyls appeal in this action is 

untimely because the original order setting the $10,000 amount is 

dated October of 1987. Further, Loomis cites several maxims of 

jurisprudence to fortify his contention that Willoughbyls failure 

to file a notice of entry of judgment concerning that order 

prevents her from filing an appeal now. 

The Attorney General filed Willoughbyls appeal on June 8, 

1993. According to Rule 5, M.R.App.P., when the State is a party 

to a lawsuit, appeal must be taken within 60 days from the order 
appealed from or 60 days from the notice of entry of judgment. The 

time for appeal does not begin to run until the notice of entry of 

judgment has been entered. El-Ce Storms Trust v. Svetahor (1987), 

223 Mont. 113, 724 P.2d 704. The record contains no notice of 

entry of judgment. We conclude that the appeal has been timely 

filed in this case because the final order was dated May 3, 1993, 

and the record contains no notice of entry of judgment. 

The pivotal question, however, is whether the District Court 

had jurisdiction to order Loomis to pay $10,000 instead of the 

$13,000 he owed in back child support. This present action was 

filed pursuant to 55 40-5-101, MCA(1987), et seq., which is the 

Montana Revised Uniform Reciprocal Enforcement of Support Act 

(RURESA). Willoughby filed the action in 1987, nine years after 

the original divorce had been granted with an attendant child 

support provision for $125 per month. No payments of child support 

were made prior to the date of filing this action. 

This Court has determined that each child support payment 

"becomes a judgment debt similar to any other judgment for money." 

In re Marriage of Sabo (1986), 224 Mont. 252, 254, 730 P.2d 1112, 

1113; In re Marriage of Hooper & Crittendon (1991), 247 Mont. 322, 

327, 806 P.2d 541, 544. As such, a party has ten years to execute 

on a judgment. Section 27-2-201(1), MCA. We have specifically 

determined that this ten-year statute of limitations applies to 

actions by one parent against another for child support arrearage. 

Hooper & Crittendon, 247 Mont. at 327, 806 P.2d at 544. 

The ~istrict Court quoted Blakeslee v. Horton (1986), 222 
Mont. 351, 722 P.2d 1148, for the proposition that equity prevents 

the mother from seeking payment of support after nine years. While 

the Blakeslee Court applied equitable principles for a 14-year 

delay in seeking support arrearage, the case was decided several 

months before Sabo which determined that each individual support 

payment is a money judgment and, therefore, subject to the ten-year 

statute of limitations for money judgments. Section 27-2-201(1), 

MCA. However, even under the Sabo interpretation, Blakeslee would 

have been decided similarly because the ten-year limit had been 

exceeded. We conclude that the District Court erroneously relied 

on Blakeslee. 

The District Court also modified the total amount of child 

support arrearage owed to the custodial parent by reducing the 

total $3,000. The controlling statute is 5 40-4-208 (I), MCA, which 

we have interpreted to mean that courts can only modify a child 

support judgment prospectively. Hoouer & Crittendon, 247 Mont. at 

324, 806 P.2d at 543. The District Court changed the arrearage 

total by merely stating that $10,000 was a "reasonablew amount. 

While it is true that petitioner asked for a "reasonable 

amount" of the money owed to her, such a request does not take 

precedence over established law. That law specifically prohibits 

courts from retroactively modifying child support by any amount. 

Loomis requests application of equity. We have utilized 

principles of equity previously to carve an exception to 5 40-4- 

208, MCA's prohibition against retroactive modification by applying 

equitable parameters in extraordinary circumstances. Such 
extraordinary circumstances involve a situation in which both 

parents agree to a modification in child support and the agreement 

is observed by both parents over a period of years. Hoo~er & 

Crittendon, 247 Mont. at 324, 806 P.2d at 543. 

The record before us indicates that Willoughby and Loomis have 

not engaged in any such agreement. Of greater importance is 

Loomis' admission that he owes the full amount of $13,000. Because 

the parents have not judicially modified the child support nor 

mutually agreed and acted upon any changes to the original order, 

the District Court, under the statutes in effect at the time of 

this action, cannot sua soonte retroactively modify an earlier 

support order from another jurisdiction by issuing a contemporary 

RURESA order. We note that the 1993 Legislature has now changed 

the procedure by which the courts of one state can modify support 

orders of another. Section 40-5-194, MCA(1993). 

We conclude that the District Court must enforce the original 

amount owed to Willoughby, from date of the original support order 

in 1978 until the filing of the RURESA action in 1987. We 

therefore, hold that the District Court erred in determining that 

Loomis should pay $10,000 in child support instead of the $13,000 

actually owed. Because the District Court acted beyond its 

jurisdiction, we reverse and remand. 

I I 

Did the District Court err by ordering the child support paid into 

a trust for the educational purposes of the child? 

Neither party in this action sought a trust. The District 
Court on its own established a trust for the minor child to be paid 

to the child at the age of majority. On appeal, Willoughby argues 

that in creating the trust, the court modified the original support 

order inappropriately. Loomis argues that the decision to create 

a trust occurred six years ago and that this Court cannot now 

change that order. 

Because an appeal was taken within the allotted statutory time 

for filing of an appeal, Loomisls argument is incorrect. In 

addition, we have already stated that the District Court cannot 

modify support orders retroactively, except in certain situations. 

Creating the trust was a modification not sought by the parties nor 

ordered by the court in the original divorce decree. 

The court designated the trust to be used for the child's 

education. Support is a sum of money paid to the custodial parent 

to be used for the child; the manner in which child support is to 

be used is left to the discretion of the custodial parent. 

Williams v. Budke (1980), 186 Mont. 71, 75, 606 P.2d 515, 517. The 

court erred in creating a trust for the child because neither party 

had asked that such a trust be created. 

Loomis argues that Williams is not applicable because it is 

not a RURESA case. Williams was decided pursuant to 5 40-4-208(1), 

MCA, which has been a part of our law in this state since 1975. 

Despite the 1993 modifications to the Uniform Act, this statute has 

remained intact to this day. The statute states in pertinent part: 

" . . . decree may be modified by a court as to 

maintenance or support only as to installments accruinq 

subseauent to actual notice to the oarties of the motion 

for modification." (Emphasis added--"to actual notice to 
the parties" has been added since 1975 and remains in the 

1993 version) . 

We conclude that whether in Williams or in the present case, the 

law remains the same: a court cannot retroactively change a prior 

support order--whether by instituting deferred payments of the 

arrearage as in Williams or by setting the manner in which amount 

of arrearage owed can be used such as in this case of establishing 

a trust for educational purposes. 

We hold that the court erred in creating a trust for the 

educational purposes of the child. 

I11 

Did the District Court err when it discharged the State of Montana 

as a party to this action under the applicable version of RURESA? 

In its March 18, 1993 order, the District Court dismissed the 

State of Montana from the action and warned that neither Willoughby 

nor her daughter would be permitted to involve the State in future 

actions. The court gave no justification for this dismissal. The 

State argues that the court was without the jurisdiction to dismiss 

it. The State contends that the law clearly mandates that it is 

preciselythe county attorney under the supervision of the Attorney 

General who must prosecute this case. 

Loomis argues that the statute provides that the county 

attorney (prosecuting attorney) can only prosecute the case when 

asked to do so by the court or by certain public organizations. 

According to Loomis, Willoughby herself sought help from the county 

attorney and cannot, therefore, benefit from the request as she was 

without legal right to make the request. 

10 
Statutes may not be interpreted to defeat their intent or 

purpose; the object sought to be achieved by the legislature is our 

prime consideration in interpreting them. Montana Talc Co. v. 

Cyprus Mines Corp. (1987), 229 Mont. 491, 748 P.2d 444. In order 

to determine the intent of the legislature, we must read 

legislation as a whole. State v. Magnuson (1984), 210 Mont. 401, 

682 P.2d 1365. Further, the uniform act itself states that the Act 

should be construed so as to effectuate the Act's general purpose. 

9B U.L.A. 9968, 1968 RURESA 541. 

RURESA has now been preserved in some form by all fifty 

states. J. Gorham, Stemminq the Modification of Child-Support 

Orders bv Respondinq Courts: A Proposal to Amend RURESA's 

Antisupersession Clause, 24 University of Michigan Journal of Law 

Reform 405 (1991). The intent of the original act remains the same 

throughout the country. The purpose behind uniform support 

enforcement is to prevent non-custodial parents from escaping their 

financial responsibilities by moving to another jurisdiction. 

Until last year in Montana, "another jurisdiction'^ included another 

county. Section 40-5-134, MCA(1987), repealed in 1993; T. 

Christie, 50 Montana Law Review, Child Support Enforcement in 

Montana, 165 (1989). The purpose of RURESA in Montana has been to 

improve and extend reciprocal support enforcement legislation, 

between jurisdictions. Section 40-5-102, MCA(1987). 

In order to improve prosecution across state lines, as well as 

intra-state county lines, the 1987 version of RURESA called for the 

use of public officials as prosecutors. The term "prosecuting 

attorney" is used throughout the 1987 version of RURESA and is 
defined as "the public official in the appropriate place who has 

the duty to enforce criminal laws relating to the failure to 

provide for the support of any person." Section 40-5-103(8), 

MCA(1987). This definition has been maintained by the new 

legislature in 1 40-5-103(15), MCA(1993). 

Inherent in the use of public officials to prosecute these 

cases is the understanding that a custodial parent many times 

cannot enforce support orders if they must hire private counsel to 

prosecute in another jurisdiction, nor would many parents have 

money themselves to travel to other jurisdictions repeatedly. L. 

Hughes, Interstate Enforcement of SuRuort Obliqations Throuqh Lonq 

Arm Statutes and URESA, 18 Journal of Family Law 537 (1980). 

Loomis argues to us that Willoughby cannot herself approach 

the county attorney and ask him to prosecute for her. Section 40- 

5-139 (1987) , MCA, stated: 

Official to represent obligee. (1) If this state is 

acting either as a rendering or a registering state, the 

prosecuting attorney, upon the request of the court, a 

state department of social and rehabilitation services, 

a state department of family services, a county 

commissioner, or other local welfare official, shall 

represent the obliqee in ~roceedinq under this part. 

(Emphasis added.) 

Section 40-5-139, MCA(1987), repealed in 1993. This section also 

applied to counties in Montana pursuant to 1 40-5-134, MCA. 

At Willoughby~s request the Jefferson County Attorney here 

petitioned the District Court of Jefferson County to certify the 

action to Beaverhead County where the Beaverhead County Attorney 

then continued representation of Willoughby, obligee under the 

statute. The foregoing statute does not list the obligee among the 
persons named as entitled to request the services of the 

prosecuting attorney. As a result there is no statutory obligation 

on the part of the county attorney to act when requested by obligee 

Willoughby. As a result, the choice to represent Willoughby rested 

with the prosecuting attorney. Neither county attorney refused to 

act and proceeded with the representation of Willoughby as obligee. 

We conclude that the initiation of the request by the obligee did 

not controvert the act in such a manner as to prohibit the 

prosecuting attorney from acting. We conclude there was no 

statutory violation when the county attorney as prosecuting 

attorney represented the obligee under the act. 

In 1987 and through 1992, RURESA called for State 

participation in these suits through the office of the prosecuting 

(county) attorney. The 1993 Legislature has repealed 5 40-5-135 

and 139, MCA, thus removing from the State the wide discretion that 

it had to act in these cases. The distinctions that we make in the 

present case are no longer the law of Montana. Future cases must 

await specific interpretation of the new modifications to RURESA. 

We hold that the District Court erred in discharging the State of 

Montana as a party to this action under the applicable version of 

RURESA. 

IV 

Did the District Court err in determining that the child had 

reached the age of majority and was now the real party in interest? 

The District Court determined that the action for child 

support no longer existed once the court handed down a judgment. 

The court stated that the doctrine of "merger" acted to change the 
character of the action itself from one of child support to one of 

action on a judgment. The court indicated that it was the child 

who had now reached the age of majority who had the power to obtain 

the judgment. 

Willoughby argues on appeal that the aforementioned court 

order is contrary to the purpose of RURESA which is to extend the 

custodial parent's remedies, not to terminate them. Loomis argues 

that the court never held that the child was the real party in 

interest 

It is clear from the District Court's order of March 1993, 

that it considered the child the real party in interest: 

The child in question is now an adult. As the 

beneficiary of the judgment, she can enforce it in her 

own right. . . . The court wonders if the mother has any 

standing to enforce the judgment in the absence of a 

consent and authorization by the now adult beneficiary. 

The court erroneously mischaracterizes what has happened. 

The 1987 version of RURESA clearly gave the Attorney General 

jurisdiction to appeal to this Court any support order that the 

State believed to have been made erroneously or that contains a 

question of law. Section 40-5-135, MCA(1987), Here, the county 

attorney filed the appeal on behalf of the Attorney General. It is 

obvious from the briefing in this case that the Assistant to the 

Attorney General believed that the actions engaged in by the 

District Court "warranted an appeal in the public interest." 

Considering that we have reversed on all issues, such an evaluation 

is correct. 

This action is, therefore, an appropriate appeal of a district 

court RURESA order pursuant to the 1987 version of RURESA. As such 
it is an appeal from a child support order. The District Court 

completely mischaracterizes the action by quoting a leading 

treatise on judgments: 

a valid and final personal judgment is conclusive between 

the parties except on appeal - to the following extent: 

(1) If the judgment is in favor of the Plaintiff, the 

claim is extinguished and merged in the judgment, and a 

new claim may arise on the judgment. (Emphasis added.) 

This does not mean that the State cannot file an appeal. The 1987 

Legislature specifically and clearly gave the State of Montana 

jurisdiction to appeal any district court support order under 

RURESA. Section 40-5-135, MCA. 

The aforementioned passage from the Restatement of Judgments 

cannot be interpreted to indicate that the State cannot appeal. If 

anything it speaks to the plaintiff's continuing ability to reprosecute a legal issue which has already been settled by a court. 

Furthermore, the passage does not speak at all to the situation 

before us--which is one in which the Attorney General, not the 

successful plaintiff, has chosen to appeal a RURESA order of the 

District Court. 

We have previously stated in this opinion that support is to 

be paid to the custodial parent for the purpose of aiding the 

child; but we will not tell the custodial parent how to spend the 

money that has been awarded. Williams, 186 Mont. at 75, 606 P.2d 

at 517. The money used by Willoughby to care for her minor 

child, came exclusively from her own sources. The court ordered 

Loomis to provide support at a sum certain each month and he did 

not comply with the order. But it is not within the court's 

discretion to bypass the custodial parent. We have previously 
stated that where the father has been obligated by divorce decree 

to pay support to the mother, the father cannot discharge his duty 

by giving the money to the child directly. Oregon ex rel. Worden 

v. Drinkwalter (1985), 216 Mont. 9, 700 P.2d 150. 

We conclude that the action before us is an appropriate appeal 

filed by the Attorney General for the State of Montana under an 

earlier version of RURESA and that the appeal concerns an erroneous 

support order entered by the District Court and that the appeal 

concerns matters in the public interest. We also conclude that 

Willoughby shall receive the arrearage. Therefore, we hold that 

the District Court erred in determining that the child had reached 

the age of majority and was now the real party in interest. 

Reversed and remanded for further proceedings consistent with 

this opinion. 

We Goncur: