NO. 96-083 INTHESUPREMECOURTOFTHESTATEOFMONTANA 1996

IN REMARRIAGE OF JOYCES. COWAN,

Petitioner and Respondent, and ARDENR. COWAN,

Respondent andAppellant.

APPEAL FROM: District Court of the Twenty-First Judicial

District, In and for the County of Ravalli TheHonorable Frank M.Davis, Judge presiding

COUNSELOFRECORD:

For Appellant: John H. Gilliam, Skjelset &Gilliam, P.L.L.P., Missoula, Montana For Respondent: Clinton H. Kammerer, Kammerer LawOffices, Missoula, Montana

Filed: Submitted onBriefs: September 19, 1996 Decided: November 26, 1996Justice Terry N. Trieweiler delivered the opinion of the Court.

OnApril 4, 1995, Arden Cowanmoved 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 amotion to have Arden held in contempt for failure to pay past support. Following ahearing at which both motions were considered, the District Court increased Arden's child support obligation from $250to $762per month. TheDistrict 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. TheDistrict 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. Weaffirm in part and reverse in part the order of the District Court and remand to that court for adetermination of Arden's child support obligation consistent with this opinion andwith the Uniform Child Support Guidelines. Weaddress five issues onappeal: 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,andthe 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?

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

monthly Social Security disability payments made to Arden's two children in excess ofArden's support obligation asacredit 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 asacredit 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? FACTUALBACKGROUND 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 $100per child for each of the couple's two children. Joyce filed apetition for modification ofchild support onDecember 5, 1988, andthe District Court increased Arden's child support obligation to $200per month per child beginning June 15, 1989. InJanuary 1994, Joyce filed amotion 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 ahearing at which Joyce's motion was considered, the District Court adjudged Arden in contempt of court and entered ajudgment against Arden in the amount of $18,550. However, based on its finding that Arden had been "beset with

3financial hardships attributable to health andunemployment," 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) haddetermined that hehadbeen disabled since November 1992andhadawarded himmonthly benefits in the amount of $924, retroactive to May 1993. The SSAhad also awarded Arden's children $512per month retroactive to the samedate. Based onthe Social Security payments, Arden alleged in his petition that his child support should bemodified because of "changed circumstances

sosubstantial andcontinuing astomakethe terms [of the decree1 unconscionable," pursuant to §40-4-208, MCA. Specifically, Arden maintained that (1)his child support obligation should bemodified 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 byhis 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 SSAdelivered to him two lump sumpayments 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 SSAsent to Joyce alump sumpayment of $9,728.00 representing benefits to the children as a result of Arden's

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

support arrearages should bereduced by $1,593.20. Following the distribution by the SSA of the lump SUlll payments, andthe recommendation byCSEDthat Arden's arrearages be reduced, Arden filed abrief in support of modification of his child support obligation. In his brief, Arden contended that both the lump sumpayment 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 bereduced by the amount recommended bythe CSED. Following ahearing 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 byeither the amount recommended by the CSEDor by the amounts paid for Social Security benefits, the court stated that it U[found] generally for Joyce andagainst Arden

on all issues not specifically addressed herein." The District Court denied Joyce's motion to hold Arden in contempt. STANDARDOFREVIEW Wereview adistrict court's findings of fact andconclusions of law which underlie an order for the modification of child support to determine whether the court's findings of fact are

5clearly erroneous andwhether its conclusions of law are correct.

InreMauriageofBvandon (19951, 271 Mont. 149, 151-52, 894 P.2d 951, 952-53. Wereview the court's decision to modify child support to determine whether the court abused its discretion. InreMarriage 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? OnApril 4, 1995, Arden Cowanfiled amotion for modification of his child support obligation. Arden maintained that his circumstances hadchanged substantially, asevidenced bythe SSA's determination in January 1995that heis totally disabled. Because his disability precludes meaningful employment, Arden asserted that his child support obligation of $250per 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 anorder relating to child support, the district court is required to determine the child support obligation onthe basis of the factors set out in 540-4-204(l) and (2), MCA, andthe Uniform Child Support Guidelines." InreMarriageofWnckler (1993), 258Mont. 12, 15, 850 P.2d 963, 965. Inthis case, the District Court's specific obligations with respect toArden's child support determination are setforthin §40-4-204, MCA(19931, whichprovidesinpertinentpart:

6(2) Thecourt 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 andmedical needs; (e) the financial resources and needs of the noncustodial parent; (f) the ageof 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 anyperson, other than the child, whomeither 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 bvauolvinq 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 byclear and convincing evidence that the application of the standards andguidelines is unjust to the child orto 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 aparticular 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 acase in which the parties have agreed to asupport amount that varies from the guideline amount. Findings that rebut andvary the guideline amount must include a statement of the amount of support that would have ordinarily beenordered 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

7Joyce's income." The court, in fact, madenoattempt to apply the

Uniform Child Support Guidelines. or to consider the factors set forth in 540-4-204, MCA. Instead, the court cavalierly stated: "Whether [the $762monthly obligation] meets the criteria of the so called mandatory guide lines, the Court will leave to the Child Support Enforcement Division." Wehave 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, 271Mont. at 154, 894 P.2d at 954; InreMarriageofGrifJin (1993), 260Mont. 124, 140, 860 P.2d 78, 88;Wackier,258Mont. at 15, 850P.2d at 965. Thepurpose of that requirement is to ensure that there is anevidentiary basis upon which acourt's child support determination is based. InreMarriage ofKukes (1993), 258Mont. 324, 328, 852 P.Zd 655, 657. Failure to set forth findings that demonstrate that the statutory criteria have been considered is aclear abuse of discretion. Gr@in, 260 Mont. at 140, 860P.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 bysubstantial 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 hadonly 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 asaguide and that hehad 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 $250monthly 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 540-4-204, MCA, when it ordered the modification ofArden's support obligation, andbecause 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. Wetherefore reverse the District Court's order modifying Arden's child support obligation andremand to that court with instructions that the court consider the Uniform Child Support Guidelines, the factors listed in 540-4-204, MCA, f~ andRule 46.30.1542, ARM,andenter findings of fact which support its child support award.

9ISSUE 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 beadjusted to $762per month--$512 tobe 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. Onappeal, Arden maintains that the Social Security disability benefits received byhis children should have been credited against the amount of his monthly obligation, as required bythis Court in InreMnrriageofDurbin (1991), 251Mont. 51,

823 P.2d 243. In Durbin, this Court held that the receipt of Social Security benefits by achild based on aparent'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 amodification of the original child support decree, pursuant to §40-4-208(l), MCA,andlimited the application of the credit to those payments which accrued after the petition for modification of child support hadbeen filed. Durbin, 251Mont. at 58, 823 P.2d at 247. Accordingly, weheld that the non-custodial father in Durbin wasentitled to acredit for those Social Security

10benefits received by his children after hehad filed amotion to

modify his child support obligation, but denied him credit for those benefits received prior to the date onwhich he filed his petition. Dtrrbin , 251Mont. at 58, 82.3 P.2d at 247. Our holding

was based, in part, onthe language of §40-4-208(l), MCA, which provides that adissolution decree can be modified "only as to installments accruing subseauent toactual notice tothe parties of the motion for modification." (Emphasis added.) Upon further review of Durbin, however, weare 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 asaresult of a parent's disability and serve as asubstitute for that parent's lost earning capacity. Durbin, 251 Mont. at 58, 823 P.2d at 249. As such, those payments are simply areplacement for aparent's lost wages due to anacknowledged disability. Thus, acredit 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 weaffirm that portion of Duvbin which allowed acredit against anoncustodial parent's child support obligation for Social Security benefits received by his children, wereverse that portion of the opinion which held that acredit 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.

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

1357, to the extent that it adopted Durbin’s rationale. Amajority of states follows the rule that Social Security benefits received as a result of a parent's disability do not modify aparent's original child support obligation. See,e.g.,Perteet v.Sumner (Ga. 19801, 269S.E.Zd 453; InreManiageofHmry (Ill. 1993), 622N.E.2d 803; Boavdv.Board(Ky. 1985), 690S.W.Zd 380; Mooneyhamv. Mooneyham(Miss. 1982), 420So. 2d1072; We&v. Wenks(MO.1991), 821 S.W.Zd 503; Hanthornv.Hanthorn (Neb. 1990), 460N.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 anobligation with payment madefrom another source and increasing, decreasing or terminating, or otherwise modifying a specific dollar amount."' Henvy,622N.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 bythe noncustodial parent, madeonbehalf 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, 622N.E.Zd at 809.

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

be amodification of the original divorce decree before Social Security payments can be credited toward a parent's support obligation. TheMissouri Supreme Court, for example, hasheld that the minority view, as set forth in Durbin, is "harsh and unjust." Weaks ,821S.W.Zd at 506. That court stated: Aminority of states follows the rule that acredit 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, onaparty seeking to credit disability payments received bythe 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 ofthe disability. Theadditional burden of petitioning the court for a modification typically wastes time andmoney andhelps noone. Weaks ,821S.W.Zd at 506-07. Inthis case, the Social Security benefits received byArden's children were paid as aresult of Arden's disability and were a substitute for Arden's lost earning capacity. Accordingly, wehold that those benefits should betreated asacontribution from Arden toward the support of his children and should serve as acredit 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 aretroactive modification of the District Court's original child support order, and was 13therefore immediately effective asacredit 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, wehold that Arden wasnot liable for any contributions after the Social Security benefits began. Wetherefore hold that Arden should be credited for any contributions madebyhimpersonally since that time andthat those credits should be applied to Arden's accrued arrearages. See,e.g.,

Mllerv.Mller (Ky. Ct. App. 1996), 929S.W.2d 202, 205. Onthe basis of our holdings, wereverse 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 anycontributions madebyhim after the Social Security benefits began and apply that credit to any arrearages owedbyArden. 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 ofArden's support obligation asacredit 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

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

Arden's obligation to asumequal to the total of his $250monthly support obligation and the $512 monthly Social Security benefit. Onappeal, Arden maintains that the District Court should have offset his $250 monthly obligation with the $512 Social Security payment and credited the remaining $262per 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.,Windhamv.St&eexrel.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), 606So. 2d 771; Newmanv.Newman (Iowa lPPO), 451N

.W.2d843;InwMarriage

### ofWilliams (Kan. 1995), 900P.2d 860; Wenksv.Weaks(MO.1991), 821S.W.2d 503; Fullerv.Fuller (Ohio Ct. App. 1976),360N.E.2d 357; Children& YouthSews.

v.Chorgo(Pa. Super. Ct. 1985), 491A.2d 1374. Those courts reason that "[a]ny excess is deemed agratuity to the extent that it exceeds the amount of support mandated bythe 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 wasauthorized to adopt pursuant to 540-5-202(12), MCA,provides:

(1) Social security benefits which arebased onthe earning record of the non-custodial parent shall be

15considered 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 agiven 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 asanarrearaqe payment or asfuture support

. . (Emphasis added.) In accord with the other jurisdictions cited that have addressed this issue, andwith Rule 46.30.1542(l) (b), ARM,wehold that Arden is entitled to credit for the amount of his monthly obligation for child support, but not exceeding that amount. Therefore, although wehold 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, wefurther hold that it did not abuse its discretion when it failed to apply any excess monthly benefits to Arden's accrued arrearages. Wetherefore affirm that part of the District Court's judgment. ISSUE 4 Did the District Court err whenit refused to apply the Social Security lump sumdisability payment madeto Arden's two children

asacredit toward his accrued arrearages? In this case, the District Court made no specific determination that the Social Security lump sumbenefits received byArden's children should orshould not becredited toward Arden's accrued arrearages. Instead, the court made asweeping finding

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

order. Onappeal, Arden maintains that the District Court abused its discretion when it failed to grant him credit for aSocial Security lump sumdisability payment of $9,728 paid to Joyce for his children. As westated above, Social Security disability benefits are paid asaresult of aparent's disability andserve asasubstitute for that parent's lost earning capacity. In this case, the $9,728 lump sumSocial Security payment waspaid to Arden's children to compensate them for overdue benefits for the period from May1993, 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. Assuch, that lump sumwasanaccumulation 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 onthe earning record of the non-custodial parent shall be considered in establishing new support orders or modification of existing orders under the following conditions:

. .

17Cd) whenever a custodial parent receives for the

benefit of the child, alump sumpayment which represents anaccumulation of monthly benefits: (i) the lump sumpayment should not betreated as income of the parent; (ii) the lumr, sumshould be credited to the child suooort oblisation for each month apayment accumulated for the child's benefit

. (Emphasis added.) Wehold that the lump sumpayment 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. Wefurther hold that, since those benefits completely offset Arden's monthly support obligation, anysupport payment made byArden during that time wasin addition to his actual obligation andshould nowbecredited to his accrued arrearages. Accordingly,

wereverse the order of the District Court which refused to apply the Social Security lump sumdisability payment madetoArden's two children asacredit toward Arden's accrued arrearages. Weremand to the District Court with instructions to (1) apply the lump sum toward any arrearages which accrued during the period of Arden's disability andprior 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?

18OnMay19, 1994, the District Court entered anorder 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. InApril 1995, Arden applied to the CSEDfor acredit of $4,020.88 against his past-due obligation. Following areview of Arden's application, CSEDgranted 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 bythe 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 bereduced. 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 orthe $500 inpast duearrearages which the District Court determined that Arden owed in its order of May 19, 1994. 19(Emphasis added.) Thecourt 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 acredit to Arden's child support arrearages in the amount of $1,593.20, asallowed by CSED, was clearly an abuse of discretion. Section 40-5-601(6), MCA, provides that:

Certified payment records maintained by aclerk 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 andHumanServices) filed anotice 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 anorder is registered byCSEDit "must betreated in the same

manner and have the sameeffect as asupport order issued by the department." CSEDwas 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 onArden's motion for child support modification and Joyce's motion for contempt, Arden submitted CSED's letter granting him acredit 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

20exhibits were not objected to ashearsay andwere 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 CSEDhad 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 inthe amount of $18,550.00, without considering CSED's calculated reduction of Arden's arrearages. Weremand 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, ascalculated byCSED. Onthe basis of our holdings, weaffirm in part andreverse in part the child support modification order of the District Court and remand to that court for adetermination 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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