No. 85-526 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

STATE OF MONTANA, DEPARTMENT OF 

REVENUE, 

Plaintiff and Respondent, 

TONY NEAL HUBBARD, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable James B. Wheelis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Datsopoulos, MacDonald & Lind; David B. Cotner, 

Missoula, Montana 

For Respondent: 

John M. McRae, Dept. of Revenue-Child Support Division, 

Missoula, Montana 

John C. Koch, Dept. of Revenue-Child Support, Great 

Falls, Montana 

Submitted on Briefs: April 4, 1986 

Decided: June 19, 1986 

Filed: JUN 19 1988 

* *&L 8 

Clerk 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

The Department of Revenue (Department) is seeking to 

recoup funds paid by the State to support appellant's two 

children. The action was originally brought by the Department pursuant §§ 40-5-221 and 53-4-248, MCA, in the Fourth 

Judicial District, Missoula County. The case is before us on 

appeal from the District Court's order granting the Department's motion for summary judgment. 

We affirm. 

Appellant's arguments raise the following issues: 

1. Whether the prior dissolution and custody decrees 

relieved appellant of his child support obligation. 

2. Whether the State is barred from recoupment by 

laches or waiver. 

3. Whether the State is precluded from recoupment 

because it extended benefits without obtaining the ex-wife's 

cooperation. 

4. Whether the State is barred from seeking an ongoing 

child support order by the limitations period in 

5 40-4-208 (2) (a), MCA. 

Appellant also raises an issue of collateral estoppel. 

Our holding on the first issues makes consideration of this 

issue unnecessary. 

Appellant and his ex-wife were married and parented two 

children. Their marriage, however, was dissolved by the 

Missoula County District Court in April 1976. The dissolution decree contains the following reservation of issues: 

That the court shall decide the determination of permanent custody of the 

children, support and visitation of the 

minor children, support and maintenance 

of petitioner, equitable determination 

of property rights, and financing 
arrangements including attorney's fees 

and costs, at a later date. 

The issue of custody was decided after hearing in an order 

issued in October 1977. A separate visitation order was 

issued in December 1977. None of the other issues reserved 

in the dissolution decree are referred to in the orders. 

The ex-wife applied for and received AFDC assistance 

for the two children in 1975 and 1976 and 1980 through 1985. 

She received $1,628 in 1975 and 1976, $6,650 between August 

1980 and June 1984, and $1,317 between July 1984 and April 

1985. In the meantime appellant's earnings as reported on 

his tax returns have been as follows: 1976--$11,046; 

1977--$14,256; 1978--$20,769; 1979--unknown; 1980--$25,535; 

1981--$27,008; 1982--$27,145; and 1983--$30,604. 

In July 1984, the Department brought this action pursuant to §§ 53-4-248 and 40-5-221, MCA, to recover the assistance paid since 1980. The Department did not seek repayment 

of the aid paid in 1975 and 1976 because that aid was prior 

to the dissolution decree. The Department also requested the 

District Court to determine and order an ongoing support 

obligation for appellant. Both parties moved for summary 

judgment. The important facts were stipulated to. The 

District Court granted the Department's motion holding that 

appellant was obligated to reimburse the State and that 

ongoing support payments by appellant could now be ordered. 

The District Court granted the motion for summary judgment 

and entered judgment against appellant for the amount of 

$7,967. In its opinion, the District Court held that the 

Department could seek an ongoing support order but did not 

set the amount. This appeal ensued. 
I 

Appellant's primary argument centers on the fact that 

the District Court's prior dissolution and custody decree do 

not set support payments. He points to §§ 53-4-248 and 

40-5-221, MCA, which Limit the amount of assistance the State 

can recover to child support payments provided for in a prior 

court decree or order. He then argues that since the prior 

decrees did not set child support, his support obligation by 

the decrees was zero and the State cannot recover anything 

from him. We disagree. 

The dissolution decree does not set specific support 

payments, but does refer to child support in a provision that 

reserves the issue for a later date. However, the subsequent 

orders make no mention of child support. Appellant argues 

that this absence of a child support provision means the 

court relieved him of his support obligation. We considered 

a similar argument in Murphy v. Murphy (1958), 134 Mont. 594, 

335 P.2d 296. In Murphy, 335 P.2d at 297, we held that a 

custody decree that was silent on child support did not 

relieve a father of his legal and moral obligation to support 

his children. Appellant has attempted to distinguish Murphy 

from the instant case. The distinction is, appellant argues, 

that in Murphy evidence on the support issue was not presented to the court, whereas here the support issue was presented 

to the court. We have reviewed Murphy and cannot find this 

distinction. The opinion in Murphy shows that the support 

issue was brought to the court's attention prior to its 

issuance of the disputed decree. Murphy, 335 P.2d at 297. 

As such, Murphy is directly applicable. We hold that the 

appellant's legal and moral child support obligation was 

neither relieved nor determined by the prior dissolution and 
child custody decrees. Therefore, appellant is obligated 

under §§ 53-4-248 and 40-5-221, MCA, to repay the State for 

assistance it has paid in support of the children. 

I1 

Appellant then argues that the State is precluded from 

the recoupment by the equitable doctrines of laches and 

waiver. These arguments also fail. 

In Fitzgerald v. Fitzgerald (Mont. 1980), 618 P.2d 867, 

869, 37 St.Rep. 1350, 1353, we held that a husband "is not 

relieved of his past child support obligation by the doctrine 

of laches . . . " Appellant argues that Fitzgerald is not 

applicable because that case involved court ordered child 

support, whereas the case at bar involves an obligation that 

was not court ordered. The distinction is illusory. 

Whether or not a child support obligation is court 

ordered is irrelevant to the existence of the obligation. 

Child support is a social and moral obligation imposed by law 

without court action. See State ex rel. Lay v. District 

Court (1948), 122 Mont. 61, 198 P.2d 761, 767, cited with 

approval in Woolverton v. Woolverton (1976) , 169 Mont. 490, 

549 P. 2d 458; see also In Re the Marriage of Hickey (Mont. 

1984), 689 P.2d 1222, 41 St.Rep. 1931. Whether or not court 

ordered, appellant here has an obligation of child support. 

By the rule in Fitzqerald, that obligation has not been 

relieved by laches. 

In addition to laches appellant makes the related 

argument of waiver. Waiver requires a showing of intent to 

relinquish a right. See Mundt v. Mallon (1937), 106 Mont. 

242, 248, 76 P.2d 326, 328; see also Farmers Elevator Co. of 

Reserve v. Anderson (1976), 170 Mont. 175, 180, 552 P.2d 63, 
65. Appellant argues that an intent to relinquish was exhibited by failure to pursue support from appellant after repeated requests from the county. We can see no intent to 

relinquish rights in this inaction. The Department filed the 

action within the applicable statute of limitations. See 

$ 27-2-211 (4), MCA. We hold that the State has not waived 

its right to recoup assistance. 

I11 

The next argument raised by appellant against the State 

recoupment concerns a statutory and regulatory requirement 

that an applicant for AFDC assistance cooperate with the 

State in obtaining child support. See $ 40-5-204, MCA, and 

ARM $ 46-10.314. Appellant claims tha.t the State did not 

obtain the ex-wife's cooperation and therefore is not entitled to recoupment. The argument is without merit. First of 

all, the record is clear that the ex-wife is cooperating with 

the State. Secondly, the ex-wife's cooperation is irrelevant 

to appellant's obligation to his children, which remains 

whether or not the ex-wife cooperates. 

IV 

The final issue we will discuss concerns the District 

Court's conclusion that the provision in the dissolution 

decree that reserved the issue of child support is modifiable 

upon a showing of changed circumstances so substantial and 

continuing as to make the terms unconscionable. This conclusion is based on § 40-4-208, MCA, which allows for modification of support provisions. Appellant claims the dissolution 

decree is no longer subject to modification because of the 

limitations period in $ 40-4-208 (2) (a), MCA, which provides: 
(2) (a) Whenever the decree proposed for 

modification does not contain provisions 

relating to maintenance or support, 

modification under subsection (1) may 

only be made within 2 years of the date 

of the decree. 

The Department also challenges the District Court's 

modification conclusion. The Department believes § 40-4-208, 

MCA, is not applicable to this action because it is seeking 

to establish, rather than modify, an ongoing support order. 

We agree with the Department. 

The child support issue cannot now be modified because 

it was never determined. Child support was, however, reserved. As such, the Department is only attempting to get 

the District Court to determine an issue reserved in the 

dissolution decree. Therefore, 5 40-4-208, MCA, including 

the limitations period in S 40-4-208(2) (a), MCA, is not 

applicable. The error of the District Court in suggesting 

the application of the modification statute, however, is 

harmless because the opinion leaves the Department with the 

option of seeking the establishment of an ongoing child 

support order. 

The distinction between modification and establishment 

is important because of the burden of proof the Department 

would have to bear if its action was to modify an order. 

Modifications of support orders require a showing of changed 

circumstances that render the original terms unconscionable. 

Section 40-4-208 (2) (b) (i) , MCA. To establish support, on the 

other hand, only requires a showing of the amount necessary 

to support the child. Section 40-4-204, MCA. Thus, the 

burden of proof for modification is more difficult than for 

establishment. Since the Department is seeking to establish 
rather than modify support, it need not show the 

unconscionability of the original terms. 

The order of the District Court granting summary judgment in favor of the Department is affirmed. We direct that 

future action by the Department to obtain an ongoing support 

order be considered an action to establish rather than modify 

a support decree. 4 A r 

Ch'ief Justice 

We concur: