No. 93-338 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 2994

CAROL ANN WILLOUGHBY, Petitioner and Appellant,

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## 28 1994 ROLAND B. LOOMIS, .-- , 1 T ,$..:J 

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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: ThomasR. Scott,Beaverhead CountyAttorney, 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, 1994Justice 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 shouldpay $10,000 in child support instead of the $13,000actually owed?11. Did the District Court errby 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 Loomisprovided 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. 2On

### May 29, 1987,the JeffersonCounty 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 couplelsdivorce. Willoughby alleged that Loomis owed $13,000inback child support. TheRURESApetition for support enforcement also asked for current child support payments in the judicially set amount of $125per month. Theaction

### was certified to the FifthJudicial DistrictCourt, 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 ~oomiswas obligated to pay the $125 per month support. The order denied Willoughbylsclaim fordelinquent child supportand indicated that

an evidentiary hearing was needed regarding this delinquency. No notice of entry of judgment was filed. 

### The Beaverhead CountyAttorney soughta further hearing which

was held in September of 1987. This hearing at which both Willoughby and Loomis testified was followedby anOctober 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 inthename payment of the total amountof the daughter for $10,000 of back child support. Thetrust was to contain $10,000 by October of 1992 and was then to be given to the childwhowould thenhave reached the age of majority. In March of 1988, the Beaverhead County Attorney sought to have Loomisheld in contempt fornot establishing the trust. At an April hearing, Loomis testified thathehad failed to establishthe 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. InApril of 1988, the courtdenied themotion 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. Thepetition alleged that the trust contained nomoney on October 20, 1992, the time set for the $10,000 tohave 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 judgmentwas intended to be a stay of execution which Loomiscould dischargebymaking deposits into the trust account. The ensuing March 18, 1993 order stated that Loomishad failed topay $10,000 into the trustaccount and that the childwas now an adult who could execute on the judgment. The court dismissed the State as a party and determined that a contempt order was notappropriate. 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 Stateargues that theDistrict Courthad no foundation for setting the amount of child support arrearage at $10,000. The Statecontends that Loomisnever denied that he owed the $13,000in back child supportand 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 Willoughbylsfailure to file a notice of entry of judgment concerning that order prevents her from filing an appeal now. The Attorney General filed Willoughbylsappeal 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 orderappealed from or 60days 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 Trustv. 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 permonth. Nopayments of child support

were made prior to the date of filing this action. This Court has determined that each child support payment "becomesa judgment debt similar to any other judgment formoney." In re Marriage of Sabo (1986), 224 Mont. 252, 254, 730 P.2d 1112, 1113; In reMarriage 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 actionsby oneparent against another for child support arrearage. Hooper & Crittendon, 247 Mont. at 327, 806 P.2d at 544. The ~istrictCourt quoted Blakeslee v. Horton (1986), 222Mont. 351, 722 P.2d 1148, for theproposition that equity prevents themother from seekingpayment of support afternineyears. 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 isamoney judgmentand,therefore,subjectto the ten-year statute of limitations formoney judgments. Section 27-2-201(1), MCA. However, even under theSabo interpretation, Blakesleewould 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 judgmentprospectively. Hoouer & Crittendon, 247Mont. at 324, 806 P.2d at 543. The District Court changed the arrearage total by merely stating that $10,000was a "reasonablewamount. 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 specificallyprohibits 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'sprohibition against retroactive modificationby applying equitable parameters in extraordinary circumstances. Suchextraordinary circumstances involve a situation in which both parents agree to amodification 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 recordbeforeus indicatesthatWilloughby and Loomishave not engaged in any such agreement. Of greater importance is Loomis' admissionthathe 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 jurisdictionby issuing a contemporary RURESA order. We note that the 1993 Legislature has now changed the procedure by which the courts of one state canmodify support orders of another. Section 40-5-194,MCA(1993). We conclude that the District Courtmust enforce the original amount owed toWilloughby, 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 $10,000in 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 supportpaid into

a trust for the educational purposes of the child? Neither party in this action sought a trust. The DistrictCourt on its own established a trust fortheminor child tobe paid to the child at the age of majority. On appeal,Willoughby argues that increatingthe trust, the courtmodified 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 appealwas taken within theallotted statutorytime 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 amodification not soughtby theparties 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 ofmoney paid to the custodial parent to be used for the child; themanner in which child support is to be used is left to the discretion of the custodial parent. Williamsv. Budke (1980),186Mont. 71, 75, 606 P.2d 515, 517. The court erred in creating a trust forthe childbecause neitherparty had asked that such a trust be created. Loomis argues that Williams is not applicable because it is not a RURESA case. Williams wasdecided pursuant to 5 40-4-208(1), MCA, which has been a part of our law in this state since 1975. Despite the 1993modificationsto theUniformAct, this statutehas remained intact to thisday. The statute states inpertinentpart: 

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# . . . decree may be modified by a court as to maintenance or support only as to installments accruinq subseauentto actual notice to the oartiesof themotion formodification." (Emphasis added--"toactualnotice totheparties" 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 retroactivelychange 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 canbe 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 itsMarch 18, 1993 order, the District Court dismissed the StateofMontana from theactionandwarned thatneitherWilloughby nor her daughter would be permitted to involve the State in future actions. The court gave no justification for this dismissal. The Stateargues that the courtwaswithout the jurisdictiontodismiss it. The State contends that the law clearly mandates that it is preciselythe countyattorneyunder the supervision of theAttorney 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 toLoomis,Willoughby herself sought help from the county attorney and cannot,therefore,benefit from therequest as she was without legal right to make the request. 10Statutes may not be interpreted to defeat their intent or purpose; theobject soughttobe achievedby 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. Statev. Magnuson (1984), 210 Mont. 401, 682P.2d 1365. Further,theuniform act itself states that theAct should be construed so as to effectuate theAct's general purpose. 9BU.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 enforcementis toprevent non-custodialparents from escaping their financial responsibilities by moving to another jurisdiction. Until lastyear inMontana, "anotherjurisdiction'^ includedanother 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). Inorder to improveprosecution across state lines,aswell 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 isdefined 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 SuRuortObliqationsThrouqh 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 toprosecute forher. 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. (Emphasisadded.) 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~srequest 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 statutedoesnot listthe obligee among thepersons named as entitled to request the services of the prosecuting attorney. As a result there isno statutory obligation

on thepart of the county attorney to act when requestedby obligee Willoughby. As a result,the choiceto represent Willoughby rested with the prosecuting attorney. Neither county attorney refused to actand proceededwith therepresentationofWilloughby 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 theprosecuting

(county) attorney. The 1993 Legislature has repealed 5 40-5-135 and 139, MCA, thusremoving from the Statethewide discretion that ithad to act in these cases. Thedistinctionsthatwemake 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 ageofmajority andwas 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 thecharacter 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 ofmajoritywho had thepower 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 custodialparent'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 themother 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 onbehalf of theAttorney 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 thatwe have reversed on all issues, such an evaluation is correct. Thisaction is,therefore, an appropriate appeal of a district courtRURESA orderpursuant to the 1987version of RURESA. As suchit is an appeal from a child support order. The District Court completely mischaracterizes the action by quoting a leading treatise on judgments:

avalid and final personal judgment isconclusive 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. (Emphasisadded.) 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 cannotbe interpretedto indicatethat the State cannot appeal. If anything it speaks to the plaintiff's continuing ability to reprosecute a legal issue which has already been settledby 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 previouslystated that where the father has been obligated by divorce decree topay support to themother, 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 concludethattheaction beforeus is anappropriateappeal filed by the Attorney General for the State of Montana under an earlier version of

### RURESA and that the appeal concernsan 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 consistentwith this opinion.

We Goncur: