NO. 96-083 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

IN RE MARRIAGE OF 

JOYCE S. COWAN, 

Petitioner and Respondent, 

and 

ARDEN R. COWAN, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Twenty-First Judicial 

District, In and for the County of Ravalli 

The Honorable Frank M. Davis, Judge presiding 

COUNSEL OF RECORD: 

For Appellant: 

John H. Gilliam, Skjelset & Gilliam, P.L.L.P., 

Missoula, Montana 

For Respondent: 

Clinton H. Kammerer, Kammerer Law Offices, 

Missoula, Montana 

Filed: 

Submitted on Briefs: September 19, 1996 

Decided: November 26, 1996 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

On April 4, 1995, Arden Cowan moved the District Court for the 

Twenty-First Judicial District in Ravalli County to modify his 

child support obligation. His former spouse, Joyce Cowan, opposed 

the motion and filed a motion to have Arden held in contempt for 

failure to pay past support. Following a hearing at which both 

motions were considered, the District Court increased Arden's child 

support obligation from $250 to $762 per month. The District Court 

refused to reduce Arden's arrearages by the amount recommended by 

the Child Support Enforcement Division (CSED) , and refused to 

credit certain Social Security benefits against his past due 

obligation. The District Court also denied Joyce's motion to hold 

Arden in contempt. Arden appeals the District Court's order which 

modified his child support obligation and which refused to grant 

him credit against his arrearages. We affirm in part and reverse 

in part the order of the District Court and remand to that court 

for a determination of Arden's child support obligation consistent 

with this opinion and with the Uniform Child Support Guidelines. 

We address five issues on appeal: 

1. Did the District Court abuse its discretion when it 

modified Arden's child support obligation without considering the 

factors set forth in § 40-4-204, MCA, and the Uniform Child Support 

Guidelines? 

2. Did the District Court err when it refused to apply the 

monthly Social Security disability payments made to Arden's 

children toward Arden's monthly child support obligation? 

2 
3. Did the District Court err when it refused to apply the 

monthly Social Security disability payments made to Arden's two 

children in excess of Arden's support obligation as a credit toward 

his accrued arrearages? 

4. Did the District Court err when it refused to apply the 

Social Security lump sum disability payment made to Arden's two 

children as a credit toward his accrued arrearages? 

5. Did the District Court err when it refused to reduce 

Arden's accrued arrearages by $1,593.20, as recommended by the 

Child Support Enforcement Division? 

FACTUAL BACKGROUND 

In 1982, the District Court for the Twenty-First Judicial 

District dissolved the marriage of Arden and Joyce Cowan and 

awarded Joyce monthly child support in the amount of $100 per child 

for each of the couple's two children. Joyce filed a petition for 

modification of child support on December 5, 1988, and the District 

Court increased Arden's child support obligation to $200 per month 

per child beginning June 15, 1989. 

In January 1994, Joyce filed a motion in the District Court to 

have Arden held in contempt for his failure to keep his child 

support obligation current. At that time, Arden's past due child 

support amounted to $17,700, and he owed an additional $800 for 

attorney fees. Following a hearing at which Joyce's motion was 

considered, the District Court adjudged Arden in contempt of court 

and entered a judgment against Arden in the amount of $18,550. 

However, based on its finding that Arden had been "beset with 

3 
financial hardships attributable to health and unemployment," the 

court reduced Arden's child support obligation to $250 per month 

for both children. 

Arden filed a motion to further modify his child support 

obligation in April 1995. By that time, the Social Security 

Administration (SSA) had determined that he had been disabled since 

November 1992 and had awarded him monthly benefits in the amount of 

$924, retroactive to May 1993. The SSA had also awarded Arden's 

children $512 per month retroactive to the same date. Based on the 

Social Security payments, Arden alleged in his petition that his 

child support should be modified because of "changed circumstances 

so substantial and continuing as to make the terms [of the decree1 

unconscionable," pursuant to § 40-4-208, MCA. Specifically, Arden 

maintained that (1) his child support obligation should be modified 

to conform to the Uniform Child Support Guidelines; (2) his support 

obligation should be modified to reflect a credit for Social 

Security disability benefits paid to the children; and (3) any 

Social Security disability benefits received by his children that 

exceeded his support obligation should be applied as a credit 

against his accrued arrearages. 

Before Arden filed his motion for modification of his child 

support obligation, the SSA delivered to him two lump sum payments 

totaling $19,456.00 for Social Security benefits earned from the 

date of his entitlement to the date of payment. After Arden filed 

his motion, the SSA sent to Joyce a lump sum payment of $9,728.00 

representing benefits to the children as a result of Arden's 

4 
disability. In addition, the CSED determined that Arden's child 

support arrearages should be reduced by $1,593.20. 

Following the distribution by the SSA of the lump SUlll 

payments, and the recommendation by CSED that Arden's arrearages be 

reduced, Arden filed a brief in support of modification of his 

child support obligation. In his brief, Arden contended that both 

the lump sum payment received by his children and the amount of 

monthly Social Security payments paid in excess of his child 

support obligation should be credited against his accrued 

arrearages. Arden further contended that those accrued arrearages 

should be reduced by the amount recommended by the CSED. 

Following a hearing at which Arden's motion to modify his 

child support obligations and Joyce's motion for contempt were 

considered, the District Court issued its findings of fact, 

conclusions of law, and order. In its order, the court modified 

Arden's child support obligation from $250 per month to $762 per 

month. Although the court did not specifically address the 

reduction of Arden's arrearages by either the amount recommended by 

the CSED or by the amounts paid for Social Security benefits, the 

court stated that it U [found] generally for Joyce and against Arden 

on all issues not specifically addressed herein." The District 

Court denied Joyce's motion to hold Arden in contempt. 

STANDARD OF REVIEW 

We review a district court's findings of fact and conclusions 

of law which underlie an order for the modification of child 

support to determine whether the court's findings of fact are 

5 
clearly erroneous and whether its conclusions of law are correct. 

InreMauriageofBvandon (19951, 271 Mont. 149, 151-52, 894 P.2d 951, 

952-53. We review the court's decision to modify child support to 

determine whether the court abused its discretion. In re Marriage of 

Kovash (1995), 270 Mont. 517, 521, 893 P.2d 860, 863. 

ISSUE 1 

Did the District Court abuse its discretion when it modified 

Arden's child support obligation without considering the factors 

set forth in 5 40-4-204, MCA, and the Uniform Child Support 

Guidelines? 

On April 4, 1995, Arden Cowan filed a motion for modification 

of his child support obligation. Arden maintained that his 

circumstances had changed substantially, as evidenced by the SSA's 

determination in January 1995 that he is totally disabled. Because 

his disability precludes meaningful employment, Arden asserted that 

his child support obligation of $250 per month was "unconscionable" 

and should be reduced to conform with the Montana Child Support 

Guidelines. 

It is well established that "[wlhenever the court issues or 

modifies an order relating to child support, the district court is 

required to determine the child support obligation on the basis of 

the factors set out in 5 40-4-204(l) and (2), MCA, and the Uniform 

Child Support Guidelines." InreMarriageofWnckler (1993), 258 Mont. 12, 

15, 850 P.2d 963, 965. In this case, the District Court's specific 

obligations with respect to Arden's child support determination are 

setforthin § 40-4-204, MCA (19931, whichprovidesinpertinentpart: 

6 
(2) The court shall consider all relevant factors, 

including: 

(a) the financial resources of the child; 

(b) the financial resources of the custodial parent; 

(cl the standard of living that the child would 

have enjoyed had the marriage not been dissolved; 

(d) the physical and emotional condition of the 

child and the child's educational and medical needs; 

(e) the financial resources and needs of the 

noncustodial parent; 

(f) the age of the child; 

(g) the cost of day care for the child; 

(h) any custody arrangement that is ordered or 

decided upon; and 

(i) the needs of any person, other than the child, 

whom either parent is legally obligated to support. 

(3) (a) Whenever a court issues or modifies an 

order concernins child support, the court shall determine 

the child suooort oblisation bv auolvinq the standards in 

this section and the uniform child support guidelines 

adopted by the department of public health and human 

services pursuant to 40-5-209. The guidelines must be 

used in all cases . . . The amount determined under 

the guidelines is presumed to be an adequate and 

reasonable support award, unless the court finds by clear 

and convincing evidence that the application of the 

standards and guidelines is unjust to the child or to any 

of the parties or is inappropriate in that particular 

case. 

(b) If the court finds that the guideline amount is 

unjust or inappropriate in a particular case, it shall 

state its reasons for finding that the application of the 

standards and guidelines is unjust to the child or a 

party or is inappropriate in that particular case. 

Similar reasons must also be stated in a case in which 

the parties have agreed to a support amount that varies 

from the guideline amount. Findings that rebut and vary 

the guideline amount must include a statement of the 

amount of support that would have ordinarily been ordered 

under the guidelines. 

(Emphasis added.) 

In this case, the District Court modified Arden's child 

support obligation based upon its conclusion that "$762.00 per 

month contribution is reasonable considering all the 

circumstances." However, the court made no finding regarding 

Arden's yearly income and admitted that it fl [had] no data as to 

7 
Joyce's income." The court, in fact, made no attempt to apply the 

Uniform Child Support Guidelines. or to consider the factors set 

forth in 5 40-4-204, MCA. Instead, the court cavalierly stated: 

"Whether [the $762 monthly obligation] meets the criteria of the so 

called mandatory guide lines, the Court will leave to the Child 

Support Enforcement Division." 

We have repeatedly held, however, that the district court must 

consider the Uniform Child Support Guidelines and the statutory 

criteria set forth at § 40-4-204, MCA, when it makes its child 

support determination. See, e.g., Brandon, 271 Mont. at 154, 894 P.2d 

at 954; InreMarriageofGrifJin (1993), 260 Mont. 124, 140, 860 P.2d 78, 

8 8 ; Wackier , 258 Mont. at 15, 850 P.2d at 965. The purpose of that 

requirement is to ensure that there is an evidentiary basis upon 

which a court's child support determination is based. In re Marriage 

ofKukes (1993), 258 Mont. 324, 328, 852 P.Zd 655, 657. Failure to 

set forth findings that demonstrate that the statutory criteria 

have been considered is a clear abuse of discretion. Gr@in, 260 

Mont. at 140, 860 P.2d at 88. 

In this case, the District Court failed to set forth any 

factual basis to support its conclusion that Arden's child support 

obligation should be increased to $762 per month. Furthermore, 

those findings that the court did make with regard to Arden's 

ability to contribute to his children's support were not supported 

by substantial credible evidence. For example, although the court 

found that Arden was capable of contributing $250 per month from 

his self-employment income, the evidence submitted at trial 

8 

. 
demonstrated that Arden had only earned a cumulative total of $700 

to $1,000 in the twenty months preceding the district court 

hearing. In addition, although the court found that Arden had 

regularly worked as a professional hunting guide and as an 

electrician, Arden testified that he had never received any 

monetary payment for his services as a guide and that he had only 

earned about $1,000 performing odd jobs as an electrician. 

Clearly, the evidence submitted at trial did not establish Arden's 

capacity to contribute $250 monthly in addition to Social Security 

benefits his children were already being paid. 

Therefore, because the District Court failed to apply the 

Uniform Child Support Guidelines and 5 40-4-204, MCA, when it 

ordered the modification of Arden's support obligation, and because 

those findings that the District Court did make with regard to 

Arden's ability to contribute to his children's support were not 

supported by substantial credible evidence, and were, therefore, 

clearly erroneous, we hold that the District Court abused its 

discretion when it modified Arden's monthly child support 

obligation from $250 to $762. We therefore reverse the District 

Court's order modifying Arden's child support obligation and remand 

to that court with instructions that the court consider the Uniform 

Child Support Guidelines, the factors listed in 5 40-4-204, MCA, f~ 

and Rule 46.30.1542, ARM, and enter findings of fact which support 

its child support award. 

9 
ISSUE 2 

Did the District Court err when it refused to apply the 

monthly Social Security disability benefits paid to Arden's 

children toward Arden's monthly child support obligation? 

In this case, the District Court concluded that Arden's child 

support obligation should be adjusted to $762 per month--$512 to be 

paid from the Social Security disability payments and $250 to be 

paid by Arden. The court's order did not alter Arden's standard 

$250 monthly obligation, but, in effect, denied Arden the 

opportunity to offset that obligation with the Social Security 

disability payments. On appeal, Arden maintains that the Social 

Security disability benefits received by his children should have 

been credited against the amount of his monthly obligation, as 

required by this Court in InreMnrriageofDurbin (1991), 251 Mont. 51, 

823 P.2d 243. 

In Durbin, this Court held that the receipt of Social Security 

benefits by a child based on a parent's disability following a 

dissolution of marriage should serve as a credit toward that 

parent's child support obligation. Durbin, 251 Mont. at 58, 823 

P.2d at 247. We concluded, however, that such an offset 

constituted a modification of the original child support decree, 

pursuant to § 40-4-208(l), MCA, and limited the application of the 

credit to those payments which accrued after the petition for 

modification of child support had been filed. Durbin, 251 Mont. at 

58, 823 P.2d at 247. Accordingly, we held that the non-custodial 

father in Durbin was entitled to a credit for those Social Security 

10 
benefits received by his children after he had filed a motion to 

modify his child support obligation, but denied him credit for 

those benefits received prior to the date on which he filed his 

petition. Dtrrbin , 251 Mont. at 58, 82.3 P.2d at 247. Our holding 

was based, in part, on the language of § 40-4-208(l), MCA, which 

provides that a dissolution decree can be modified "only as to 

installments accruing subseauent to actual notice to the parties of 

the motion for modification." (Emphasis added.) 

Upon further review of Durbin, however, we are persuaded that 

we were incorrect when we concluded that an offset of a child 

support obligation by Social Security benefits constitutes a 

modification of the original child support order. As this Court 

noted in Durbin,Social Security benefits are paid as a result of a 

parent's disability and serve as a substitute for that parent's 

lost earning capacity. Durbin, 251 Mont. at 58, 823 P.2d at 249. 

As such, those payments are simply a replacement for a parent's 

lost wages due to an acknowledged disability. Thus, a credit for 

those Social Security benefits does not retroactively modify the 

disabled parent's monthly child support obligation; it merely 

changes the source of the payments. Therefore, although we affirm 

that portion of Duvbin which allowed a credit against a noncustodial 

parent's child support obligation for Social Security benefits 

received by his children, we reverse that portion of the opinion 

which held that a credit for Social Security benefits received 

prior to the motion to modify would constitute a retroactive 

modification of the district court's original child support order. 

11 
We also reverse InreMa~riageofMalquisi (1994), 266 Mont. 447, 880 P.2d 

1357, to the extent that it adopted Durbin’s rationale. 

A majority of states follows the rule that Social Security 

benefits received as a result of a parent's disability do not 

modify a parent's original child support obligation. See, e.g., Perteet 

v.Sumner (Ga. 19801, 269 S.E.Zd 453; InreManiageofHmry (Ill. 1993), 

622 N.E.2d 803; Boavdv. Board (Ky. 1985), 690 S.W.Zd 380; Mooneyhamv. 

Mooneyham (Miss. 1982), 420 So. 2d 1072; We&v. Wenks (MO. 1991), 821 

S.W.Zd 503; Hanthornv.Hanthorn (Neb. 1990), 460 N.W.2d 650; Gr@nv.Avery 

(N.H. 19801, 424 A.2d 175; Mu~kv. Mask (N.M. 1980), 620 P.2d 883. 

The Illinois Supreme Court, for example, has acknowledged that 

Illinois law provides for modification of only future child support 

installments, but has held that "a distinction exists between 

'crediting an obligation with payment made from another source and 

increasing, decreasing or terminating, or otherwise modifying a 

specific dollar amount."' Henvy , 622 N.E.2d at 808. Based on its 

conclusion that the substitution of Social Security benefits is" not 

a retroactive modification of child support, the court has 

concluded that 

because social security dependent disability benefits are 

earned by the noncustodial parent, made on behalf of such 

parent, and, in fact, paid at least in part with 

contributions from the noncustodial's own earnings, 

payment of social security dependent disability benefits 

satisfies a noncustodial parent's child support 

obligation. 

Henry, 622 N.E.Zd at 809. 

12 
Other courts have rejected Dtrrbin’s rationale that there need 

be a modification of the original divorce decree before Social 

Security payments can be credited toward a parent's support 

obligation. The Missouri Supreme Court, for example, has held that 

the minority view, as set forth in Durbin, is "harsh and unjust." 

Weaks , 821 S.W.Zd at 506. That court stated: 

A minority of states follows the rule that a credit 

for social security disability payment is available 

against the child support obligation only aflier a 

modification by the trial court. 

. . 

This view, followed by a distinct minority of 

jurisdictions, is harsh and unjust. To impose the 

requirement of a court proceeding, i.e., modification 

hearing, on a party seeking to credit disability payments 

received by the custodial parent for the benefit of the 

parties' children is overly harsh. In situations 

involving disability benefits, the party seeking credit 

most likely faces a reduction of income, financial 

uncertainty, physical or mental impairment and other 

attendant consequences of the disability. The additional 

burden of petitioning the court for a modification 

typically wastes time and money and helps no one. 

Weaks , 821 S.W.Zd at 506-07. 

In this case, the Social Security benefits received by Arden's 

children were paid as a result of Arden's disability and were a 

substitute for Arden's lost earning capacity. Accordingly, we hold 

that those benefits should be treated as a contribution from Arden 

toward the support of his children and should serve as a credit 

toward Arden's monthly obligation. We further hold that the 

substitution of the Social Security benefits for Arden's child 

support obligation does not constitute a retroactive modification 

of the District Court's original child support order, and was 

13 
therefore immediately effective as a credit against Ardenls child 

support obligation. 

In this case, because Arden's monthly $250 child support 

obligation was completely offset by the monthly $512 Social 

Security benefit paid to his children, we hold that Arden was not 

liable for any contributions after the Social Security benefits 

began. We therefore hold that Arden should be credited for any 

contributions made by him personally since that time and that those 

credits should be applied to Arden's accrued arrearages. See, e.g., 

Mllerv.Mller (Ky. Ct. App. 1996), 929 S.W.2d 202, 205. 

On the basis of our holdings, we reverse the District Court's 

order which denied Arden the opportunity to offset his obligation 

with the Social Security disability benefits received by his 

children and remand to the District Court with instructions to 

(1) credit the Social Security benefits received by Arden's 

children against Arden's monthly child support obligation, and to 

(2) credit Arden for any contributions made by him after the Social 

Security benefits began and apply that credit to any arrearages 

owed by Arden. 

ISSUE 3 

Did the District Court err when it refused to apply the 

monthly Social Security disability payments made to Arden's two 

children in excess of Arden's support obligation as a credit toward 

his accrued arrearages? 

In this case, the District Court did not apply the Social 

Security disability payments received by Arden's children as a 

14 
credit toward Arden's support obligation, but instead increased 

Arden's obligation to a sum equal to the total of his $250 monthly 

support obligation and the $512 monthly Social Security benefit. 

On appeal, Arden maintains that the District Court should have 

offset his $250 monthly obligation with the $512 Social Security 

payment and credited the remaining $262 per month to his existing 

arrearages. 

Although the question of excess benefits has not yet been 

addressed by this Court, the majority of jurisdictions faced with 

this issue have not allowed the application of excess benefits to 

reduce arrearages. See, e.g., Windham v. St&e ex rel. Windham (Ala Civ . App . 

1990), 574 So. 2d 853; InreMarringeofRobinson (Cola. Ct. App. 1982), 

651 P.2d 454; Kiiwanv.Kirwan (Fla. Dist. Ct. App. 1992), 606 So. 2d 

771; Newmanv.Newman (Iowa lPPO), 4 5 1 N . W .2 d 8 4 3 ; In w Marriage of Williams 

(Kan. 1995), 900 P.2d 860; Wenksv. Weaks (MO. 1991), 821 S.W.2d 503; 

Fuller v. Fuller (Ohio Ct. App. 1976) , 360 N.E.2d 357; Children& YouthSews. 

v. Chorgo (Pa. Super. Ct. 1985), 491 A.2d 1374. Those courts reason 

that "[a]ny excess is deemed a gratuity to the extent that it 

exceeds the amount of support mandated by the decree." We&s, 821 

S.W.2d at 507. 

This view is consistent with the administrative rules of the 

Department of Public Health and Human Services. Specifically, 

Rule 46.30.1542(l) (b), ARM, which the Department was authorized to 

adopt pursuant to 5 40-5-202(12), MCA, provides: 

(1) Social security benefits which are based on the 

earning record of the non-custodial parent shall be 

15 
considered in establishing new support orders or 

modification of existing orders under the following 

conditions: 

. . 

(b) the parent's obligation is satisfied if the 

amount of the of the child's benefit for a given month is 

equal to or greater than the parent's child support 

obligation. Any benefit received by the child for a 

qiven month in excess of the child suooort obligation is 

not'treated as an arrearaqe payment or as future support 

. . 

(Emphasis added.) 

In accord with the other jurisdictions cited that have 

addressed this issue, and with Rule 46.30.1542(l) (b), ARM, we hold 

that Arden is entitled to credit for the amount of his monthly 

obligation for child support, but not exceeding that amount. 

Therefore, although we hold that the District Court abused its 

discretion when it failed to apply the Social Security benefits 

received by Arden's children toward Arden's monthly support 

obligation, we further hold that it did not abuse its discretion 

when it failed to apply any excess monthly benefits to Arden's 

accrued arrearages. We therefore affirm that part of the District 

Court's judgment. 

ISSUE 4 

Did the District Court err when it refused to apply the Social 

Security lump sum disability payment made to Arden's two children 

as a credit toward his accrued arrearages? 

In this case, the District Court made no specific 

determination that the Social Security lump sum benefits received 

by Arden's children should or should not be credited toward Arden's 

accrued arrearages. Instead, the court made a sweeping finding 

16 
"against Arden on all issues not specifically addressed" in its 

order. On appeal, Arden maintains that the District Court abused 

its discretion when it failed to grant him credit for a Social 

Security lump sum disability payment of $9,728 paid to Joyce for 

his children. 

As we stated above, Social Security disability benefits are 

paid as a result of a parent's disability and serve as a substitute 

for that parent's lost earning capacity. In this case, the $9,728 

lump sum Social Security payment was paid to Arden's children to 

compensate them for overdue benefits for the period from May 1993, 

the date of Arden's eligibility, through the date when their 

monthly Social Security benefit payments commenced. They were paid 

in recognition of Arden's inability to earn income since November 

1992. As such, that lump sum was an accumulation of monthly Social 

Security payments which accrued for the children's benefit. The 

lump sum payment, then, like the other monthly Social Security 

disability payments, should have been credited to Arden's monthly 

child support obligation for the months during which the lump sum 

accumulated. See, e.g., Romero v. Romero (N.M. Ct. App. 1984), 682 P.2d 

201, 202. 

This interpretation is supported by Rule 46.30.1542(l) cd), 

ARM, which provides: 

(1) Social security benefits which are based on the 

earning record of the non-custodial parent shall be 

considered in establishing new support orders or 

modification of existing orders under the following 

conditions: 

. . 

17 
Cd) whenever a custodial parent receives for the 

benefit of the child, a lump sum payment which represents 

an accumulation of monthly benefits: 

(i) the lump sum payment should not be treated as 

income of the parent; 

(ii) the lumr, sum should be credited to the child 

suooort oblisation for each month a payment accumulated 

for the child's benefit . 

(Emphasis added.) 

We hold that the lump sum payment received by Joyce for the 

benefit of her children should have been credited to Arden's child 

support obligation from May 1993 until the monthly benefits 

commenced. We further hold that, since those benefits completely 

offset Arden's monthly support obligation, any support payment made 

by Arden during that time was in addition to his actual obligation 

and should now be credited to his accrued arrearages. Accordingly, 

we reverse the order of the District Court which refused to apply 

the Social Security lump sum disability payment made to Arden's two 

children as a credit toward Arden's accrued arrearages. We remand 

to the District Court with instructions to (1) apply the lump sum 

toward any arrearages which accrued during the period of Arden's 

disability and prior to the commencement of monthly Social Security 

payments to Arden's children, and to (2) credit Arden's accrued 

arrearages by the amount of child support paid directly by Arden 

during that period. 

ISSUE 5 

Did the District Court err when it refused to reduce Arden's 

accrued arrearages by $1,593.20, as recommended by the Child 

Support Enforcement Division? 

18 
On May 19, 1994, the District Court entered an order in which 

it determined that Arden owed child support arrearages in the 

aggregate of $17,200.00, in addition to $850 for attorney fees and 

$500.00 for past due arrearages, for a total judgment of 

$18,550.00. In April 1995, Arden applied to the CSED for a credit 

of $4,020.88 against his past-due obligation. Following a review 

of Arden's application, CSED granted him credit in the amount of 

$1,593.20. 

In his memorandum in support of his petition for modification 

of child support, Arden maintained that the District Court should 

reduce his accrued arrearages by the amount credited by CSED. In 

support of his claim, Arden submitted WED's letter granting him a 

credit in the amount of $1,593.20 and CSED's debt computation 

worksheet which showed Arden's accrued arrearages in the amount of 

$15,467.87.l 

In its order modifying Arden's child support obligation, the 

District Court did not acknowledge CSED's determination that 

Arden's past-due arrearages should be reduced. Although the court 

did not directly address the issue, it stated: 

All prior orders of this Court except as may be 

modified herein shall remain in full force and effect. 

This includes but is not limited to the iudqment for 

child support arrearaoe in the amount of $18,550. 

'CSED's computation does not include either the $850 in 

attorney fees or the $500 in past due arrearages which the District 

Court determined that Arden owed in its order of May 19, 1994. 

19 
(Emphasis added.) The court allowed, however, that either Arden or 

Joyce could have the court's child support award "adjusted by the 

CSED. U 

The District Court's refusal to apply a credit to Arden's 

child support arrearages in the amount of $1,593.20, as allowed by 

CSED, was clearly an abuse of discretion. Section 40-5-601(6), 

MCA, provides that: 

Certified payment records maintained by a clerk of 

court or administrative agency authorized by law or by 

the support order to collect support are admissible in a 

[civil contempt] proceeding under this section and are 

prima facie evidence of the amount of support paid and 

any arrearages under the support order. 

In this case, the Child Support Enforcement Division of the 

Department of Social and Rehabilitation Services (now the 

Department of Public Health and Human Services) filed a notice of 

registration, pursuant to § 40-5-271, MCA, of the District Court's 

order of May 19, 1994. Section 40-5-271(4), MCA, provides that 

once an order is registered by CSED it "must be treated in the same 

manner and have the same effect as a support order issued by the 

department." CSED was therefore authorized by law to collect 

Arden's child support obligation. Accordingly, pursuant to 

§ 40-5-601(6), MCA, its payment records were prima facie proof of 

Arden's accrued arrearages. 

At the District Court's concomitant hearing on Arden's motion 

for child support modification and Joyce's motion for contempt, 

Arden submitted CSED's letter granting him a credit in the amount 

of $1,593.20 and CSED's debt computation worksheet which showed 

Arden's accrued arrearages in the amount of $15,467.87. The 

20 
exhibits were not objected to as hearsay and were admitted. Both 

exhibits constituted prima facie proof, pursuant to § 40-5-601(6), 

MCA, that Arden's accrued arrearages pursuant to the District 

Court's order of May 19, 1994, had been reduced by $1,593.20. 

Because Joyce submitted no evidence to refute that proof, the 

District Court was required to accept CSED's determination of 

Arden's accrued arrearages, which CSED had calculated should be 

reduced by $1,593.20. 

We therefore hold that the District Court abused its 

discretion when it reaffirmed its judgment against Arden for child 

support arrearages in the amount of $18,550.00, without considering 

CSED's calculated reduction of Arden's arrearages. We remand to 

the District Court with instructions to include in its order 

modifying Arden's child support a reduction of his accrued 

arrearages by $1,593.20, as calculated by CSED. 

On the basis of our holdings, we affirm in part and reverse in 

part the child support modification order of the District Court and 

remand to that court for a determination of Arden's child support 

obligation consistent with this opinion, the Uniform Child Support 

Guidelines, and Rule 46.30.1542, ARM. 

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