No. 85-333 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

IN RE THE MARRIAGE OF 

DIETA M. COOK, 

Petitioner and Appellant, 

and 

JAMES D. COOK, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable John S. Henson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Tipp, Hoven, Skjelset & Frizzell; Richard R. Buley, 

Missoula, Montana 

For Respondent: 

Mark S. Connell, Missoula, Montana 

For Minor Children: 

J. Howard Toole, Missoula, Montana 

Filed: 

Submitted on Briefs: May 9, 1986 

Decided: September 23, 1986 

P 

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Clerk 

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Mr. Justice William E. Hunt, Sr., delivered the Opinion of 

the Court. 

Appellant, Dieta Cook, appeals the order of the Missoula 

County District Court modifying its earlier custody and 

support decree transferring custody to James and ending his 

support obligation. 

We affirm. 

Dieta raises the following issues on appeal: 

1. Whether the District Court properly invoked 

jurisdiction in this matter? 

2. Whether the District Court's findings regarding 

serious endangerment are supported by substantial credible 

evidence? 

3. Whether the District Court's findings regarding 

child support are supported by the record? 

The parties were divorced by decree of dissolution on 

January 10, 1980. Dieta was awarded custody of the parties' 

two minor children, Tom and Martin (Mardy) . James was 

granted visitation rights and ordered to pay $250.00 per 

month per child for support. The decree ordered that Dieta 

not change the children's residence from Montana without 

first obtaining the permission of the court. 

In May of 1980, Dieta removed the children to Utah 

without obtaining the court's permission. Several additional 

court proceedings took place in the case over the next few 

years regarding visitation and financial requirements set 

forth in the decree. The children visited James during the 

summers of 1980, 1981, 1982 and 1983. 

Beginning in the summer of 1981, the children requested 

they be allowed to remain with their father on a permanent 
basis. On July 11, 1983, James filed a motion for change of 

custody. An order to show cause was issued on July 13, 1983, 

setting hearing upon the motion for August 12, 1983. The 

hearing was vacated. 

The children remained with James pending a new hearing 

date. Before a hearing could be held, Dieta appeared in 

Missoula on December 15, 1983, and attempted to 

surreptitiously remove the children. She failed, and on 

December 16, 1983, James obtained an order restraining Dieta 

from removing the children from Missoula. Before the order 

was served upon Dieta, she unsuccessfully attempted to remove 

Tom from school, and successfully abducted Mardy by telling 

him she would drive him to school. Later that day, Dieta 

telephoned a Missoula County Deputy Attorney and was told of 

the court's order restraining her from removing the children 

from Missoula. Dieta took Mardy to Utah, and then to Austria 

for several weeks. 

On January 30, 1984, the district judge issued an order 

granting James temporary custody of both children, and 

ordering Dieta to produce Mardy for a hearing before the 

court on February 27, 1984. A second such order was issued 

on February 15, 1984. At the hearing, the court reaffirmed 

its earlier order awarding temporary custody of the children 

to James, but allowed Mardy to remain in Utah until the court 

was able to more fully consider the merits of the case at a 

subsequent hearing. The court also appointed an attorney to 

represent the children, ordered Dieta to allow James to visit 

Mardy by telephone, and set further hearing for April 14, 

1984. Due to the court's full docket, the case was not heard 

until June 5, 1984, and January 2, 3, 4, 7 and 10, 1985. 
On March 29, 1984, a hearing was held in Utah by the 

Sevier County District Court on a custody motion filed by 

Dieta. That court concluded that the Montana court had 

continuing jurisdiction over the controversy; that the 

Montana court was the more convenient forum to litigate the 

issue; and that the Utah court was the less convenient forum. 

The Utah court declined to accept jurisdiction of the case. 

On January 23, 1985, following the six-day custody 

hearing in Missoula, Judge Henson issued a judgment in which 

he found that the Missoula court properly had jurisdiction to 

hear the case, and granted James1 motion for change in 

custody. 

On March 5, 1985, the court held a hearing concerning 

the child support owed to Dieta by James. The court 

concluded that, based upon an oral agreement between the 

parties, Dieta was estopped from enforcing the support 

provisions as contained in the decree. She was limited to 

the amount of support orally agreed to by the parties from 

June of 1980, until July of 1983. From July of 1983, James 

had physical custody of one or both children and was paying 

all expenses associated with the support of the child or 

children in his custody. Therefore, James was relieved of 

his obligation to pay child support after July of 1983. 

Dieta appeals the orders of the District Court 

concerning jurisdiction, custody, and support. 

The first issue raised by Dieta is whether the District 

Court properly exercised jurisdiction in this case. Dieta 

argues that the Montana court should have declined 

jurisdiction because the Utah court was the children's home 

state and the more convenient forum. We do not agree. 
Section 40-4-211, MCA, lists four distinct grounds for 

the exercise of jurisdiction by a Montana court. In this 

case, two of the grounds apply. That section states: 

(1) A court of this state competent to decide 

child custody matters has jurisdiction to make a 

child custody determination by initial or 

modification decree if: 

(bj it is in the best interest of the child that a 

court of this state assume jurisdiction because: 

(i) the child and his parents or the child and at 

least one contestant have a significant connection 

with this state; and 

(ii) there is available in this state substantial 

evidence concerning the child's present or future 

care, protection, tra.ining , and personal 

relationships; or 

(d) (i) no other state has jurisdiction under 

prerequisites substantially in accordance with 

subsections (1) (a), (1) (b), or (1) (c) of this 

section or another state has declined to exercise 

jurisdiction on the ground that this state is the 

more appropriate forum to determine custody of the 

child; and 

(ii) it is in his best interest that the court 

assume jurisdiction. 

The Montana court properly exercised jurisdiction under 

s 40-4-211 (1) (b) , MCA. James and the children had a 

"significant connection" with Montana, and there was 

"substantial evidence" available locally which was relevant 

to the custody issue. Both the parties and the children 

lived in Montana for many years. The Montana court dissolved 

the marriage, awarded custody to Dieta, and handled several 

post-decree motions. Further, James and. the children resided 

in Missoula at the time the motion to modify custody was 

made. Both children had numerous friends, relatives and 

teachers in the Missoula area able to testify. Three local 

psychologists tested the parties and the children and 
testified at the hearing. In addition, a local attorney was 

appointed to represent the children. The District Court 

properly concluded that it was in the best interests of the 

children that the Montana court exercise jurisdiction over 

this custody dispute. 

Jurisdiction was properly invoked under 5 

40-4-211 (1) (d) , MCA, as well. On March 29, 1984, the Utah 

court declined to accept jurisdiction in this matter 

deferring to the Montana court which it expressly found to be 

the more convenient forum. Thus, the Montana court had 

jurisdiction under 5 40-4-211 (1) (d) , MCA. 

Dieta's argument that the District Court should have 

declined jurisdiction because the Utah court was the more 

convenient forum is not persuasive. According to 5 40-7-108, 

MCA : 

(1) A court which has jurisdiction under this 

cha~ter L to make an initial or modification decree 

may decline to exercise its jurisdiction any time 

before makins a decree if it finds that it is an 

inconvenient -forum to make a custody determination 

under the circumstances of the case and that a 

court of another state is a more appropriate forum. 

(Emphasis added.) 

The decision to decline jurisdiction on inconvenient forum 

grounds is purely discretionary with the District Court. The 

District Court did not abuse that discretion in accepting 

jurisdiction. Therefore, we hold that the District Court had 

jurisdiction to hear this case. 

Dieta's second issue is whether the District Court's 

findings regarding serious endangerment are supported by 

substantial credible evidence. We hold that the District 

Court's order is supported by substantial credible evidence. 

In a detailed and thorough opinion, the District Court 

concluded that a change occurred in the children's 
circumstances making a change of custody necessary to serve 

the best interests of the children. Tom was 14 years old at 

the time of the hearing and desired the modification; the 

present environment of the children endangered seriously 

their mental and emotional health; and the harm likely to be 

caused by a change of environment was outweighed by its 

advantages to them. 

The District Court's conclusions are supported by six 

pages of findings. The children requested they be allowed to 

remain with Tom. Dieta removed Mardy to Utah despite her 

knowledge of a court order restraining her from doing so. 

The relationship among the children, their father, and 

stepmother is extremely close and loving. Dieta impaired, 

frustrated, and attempted to stifle the children's 

relationship with their father, and interfered with the 

children's communication with each other while they were 

separated. She monitored and tape-recorded telephone calls 

to and from Tom, Mardy and James, delayed or intercepted 

letters and photographs sent through the mail, and 

discouraged the children's desire to spend time with James. 

She threatened to sell the children's toys and move to 

another country and never see them again should custody be 

changed at their request. 

In a custody modification appeal, this Court will not 

disturb a District Court's findings where they are supported 

by substantial credible evidence unless there is a clear 

preponderance of evidence against those findings. Reinoehl 

v. Perry (Mont. 1984), 691 P.2d 1384, 41 St.Rep. 2269. In re 

Marriage of Bolton (Mont. 1984), 690 P.2d 401, 41 St.Rep. 

1698. The District Court's decision to modify custody is 
clearly supported by substantial credible evidence and we 

will not disturb that decision on appea.1. 

Dieta's final issue is whether the District Court's 

findings regarding child support are supported by the record. 

We hold that they are. 

The parties were divorced on January 10, 1980. James 

was ordered to pay $250.00 per month per child in support. 

The decree declared that the amount was set "in recognition 

of the mutual desire of the parties to have the children 

pursue a parochial education. " In May of 1980, Dieta moved 

with the children to Utah in violation of the decree. James 

learned that the children were no longer attending parochial 

school. In June of 1980, the parties orally agreed to reduce 

support to $200.000 per month per child for the months of 

August through June, and $100.00 for July. The agreement was 

reduced to writing, but James did not sign it because he 

feared that would indicate his approval of Dieta's move to 

Utah. The agreement also provided for a modified visitation 

schedule. From and after June of 1980, the parties acted in 

reliance upon their oral agreement. 

In July of 1983, James filed his motion to modify 

custody. From that date on either one or both of the 

children were in his custody and James discontinued payment 

of child support. The modification of custody was granted on 

January 23, 1985. On February 14, 1985, James filed a motion 

to determine the nature and extent, if any, of his support 

obligation. On March 14, 1985, the District Court entered 

its order and judgment. 

The court found that James and. Dieta entered into a 

binding agreement modifying support and visitation which both 

parties adhered to. James relied upon the agreement to his 
detriment in various financial dealings. The court held that 

his motion for modification of custody "was essentially a 

motion to eliminate the requirement that Respondent pay child 

support to Petitioner," and James no longer owed support 

after that date. 

The court concluded that Dieta was estopped from 

enforcing the support provisions of the decree from and after 

June of 1980, the date the parties entered into their 

agreement. Further, the changes in the children's residences 

represented changed circumstances so substantial and 

continuing as to make enforcement of James' original and 

modified support obligation unconscionable. We agree. 

The general rule is that when child support becomes due 

under a dissolution decree it becomes a judgment debt similar 

to any other judgment for money. Section 40-4-208, MCA; In 

re Marriage of Carlson (Mont. 1984), 693 P.2d 496, 41 St.Rep. 

2419; Williams v. Budke (1980), 186 Mont. 71, 606 P.2d 515. 

However, a number of courts have recognized that under a 

compulsion of circumstances the mother may not collect the 

amount that has accrued in a judgment for support, where the 

husband has made expenditures which constitute substantial 

compliance with the spirit and intent of the decree. Headley 

v. Headley (Ala. 1964), 172 So.2d 29; Steckler v. Steckler 

(Mo. 1956), 293 S.W.2d 129; Chapman v. Chapman (Or. 1945), 

161 P.2d 917; Mason v. Mason (Or. 1934), 34 P.2d 328. The 

courts are generally reluctant to state any general rule as 

to when an estoppel arises, but generally the equitable 

principle arises when the mother has expressly or impliedly 

consented to an arrangement other than the payment of the 

judgment. State of Washington ex rel. Blakeslee v. Horton 

(No. 85-639, Decided July 24, 1986), 43 St.Rep. 1321; 
Headley v. Headley, 172 So.2d at 33. It is clear that in 

applying the doctrine of equitable estoppel the courts are 

guided by the principle that while the judgment for support 

may be in another's name, the real beneficiaries of the 

judgment are the children, not the person named in the 

judgment. M v. M (Mo. 1958), 313 S.W.2d 209, 213. 

With that in mind, we look to the facts of this case. First, 

Dieta expressly consented to the payment of the judgment in a 

manner different than that set out in the decree. Second, 

James made the payments as required by the agreement, thus he 

acted. within the spirit and intent of the decree. Finally, 

we note that James has had the children since 1983 and that 

to require payment of support now would harm the children by 

taking money away from them rather than benefiting them. 

Thus, we agree with the District Court that Dieta is estopped 

from enforcing the support provisions of the decree from the 

date the parties entered their agreement. The provision of 5 

40-4-208, MCA, providing that a decree may be modifified by a 

court as to maintenance or support only as to installments 

accruing subsequent to the motion for modification, is 

subject to the doctrine of equitable estoppel under the facts 

of this case. Only in cases where equitable estoppel is 

found by the trial court upon clear and compelling evidence 

may this doctrine override the provisions of 5 40-4-208, MCA. 

In addition, once James made his motion in July of 1983, 

S 40-4-208, MCA, gave the court discretion to modify his 

support obligation, subsequent to that date. One or both of 

the children resided with him after that date and James paid 

all the expenses associated with the support of the child or 

children in his custody. The District Court did not abuse 

its discretion in determining James' support obligation. 
Therefore, we affirm the District Court in all respects. 

We Concur: 

Chief Justice 

n 

Justices 
Mr. Justice Fred J. Weber dissents as follows: 

The majority opinion carefully reviewed the evidence 

considered by the District Court in reaching its conclusion 

that Dieta Cook was estopped from enforcing the support 

provisions of the decree of dissolution. I agree that the 

evidence supporting estoppel is compelling and would agree 

with the conclusion of the court if the sufficiency of the 

estoppel evidence were the only question before us. However, 

I find other aspects have not been sufficiently considered in 

the majority opinion. 

The majority opinion effectively has disregarded the 

provision of 5 40-4-208, MCA, which in pertinent part states: 

(1) . . . a decree may be modified by a court as to 

maintenance or support only as to installments 

accruing subsequent to the motion for modification. 

The above section is a part of the Uniform Marriage and 

Divorce Act enacted by our legislature in 1975. Uniformity 

of the Act among the several states was a primary objective 

as stated at S 40-4-102, MCA: 

This chapter shall be so applied and construed as 

to effectuate its general purpose to make uniform 

the law. . . among those states which enact it. 

The essence of 5 40-4-208, MCA, is that a court may modify a 

support decree only as to subsequently accruing installments. 

On its face the statute appears to prohibit the action which 

is being taken in the present case. 

It might be argued that the decree in the present case 

does not actually constitute a modification. I believe that 

has been disposed of in cases interpreting the section. 

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

was a marriage dissolution case in which the decree required 
the husband to pay $300 per month in child support. The 

husband became seriously ill, had open heart surgery and was 

rehospitalized. As of 1978 husband owed $14,872.55 in medical bills and had no real property, no savings account and 

could not get medical or life insurance. Wife worked for a 

flooring company and she and her three minor children lived 

with her mother. At the show cause hearing the husband moved 

for a modification of his child support obligation and the 

District Court found him unable financially to pay $300 per 

month. As to future installments, the award was reduced to a 

total of $150, with subsequent increases in later years. The 

District Court found the husband delinquent in accrued child 

support payments in the amount of $9,080 and gave the husband 

credit for $3,600 received by the wife upon a prior execution 

and $970 for payments made directly to the minor children. 

The District Court then established a deferred payment schedule for the husband's delinquent support obligation providing 

that the husband was to pay $150 per month to be credited 

toward delinquent child support with the commencement delayed 

for several years. This Court reversed the action of the 

District Court in deferring the payment for delinquent child 

support. This Court acknowledged the effort of the District 

Court to consider the financial condition of the husband and 

stated: 

We appreciate the effort of the District Court to 

take cognizance of the financial condition of 

husband in establishing the deferred schedule. 

However, the result, as the court ordered it, is to 

modify the judgment . . . as to the accrued child 

support payments. This action of the District 

Court is oppugnant to a controlling statute [citing 

the above B 40-4-208 (I)] . . . 

There can be no doubt that the District Court 

modified the judgment for accrued child support 

payments, and modified it retroactively . . . 
In Dahl v. Dahl (1978), Mont., 577 P.2d 1230, 1232, 

35 St.Rep. 536, we pointed to the same statute 

(formerly Section 48-330 (1) , R.C.M. 1947) to the 

effect that a divorce decree-cannot be modified to 

cancel past due and unpaid child support. (Emphasis 

supplied. ) 

Williams, 

Notwithstanding the arguments which were made to the court 

regarding the extreme health problems on the part of the 

husband and his financial inability to pay, this Court concluded that the statute was controlling so that the judgment 

for accrued child support payments could not be modified 

retroactively. This Court also reaffirmed the Dahl rule 

which held that a divorce decree cannot be modified to cancel 

past due and unpaid child support. The effect of the majority opinion in the present case is a cancellation of past due 

and unpaid child support in direct contradiction to the 

holdings in Dahl and Williams. 

In a similar manner, in State Department of Revenue v. 

Dawson (Mont. 1984), 674 P.2d 1091, 41 St.Rep. 46, this Court 

considered the action of the District Court which had concluded that the defendant was in arrears in the amount of 

$6,689 and that the defendant was unable to make the support 

payments and therefore concluded that it was appropriate to 

restrain the State of Montana from levying upon the bank 

account of the defendant. While the lower court had not in 

fact modified the decree, it effectively neutralized it by 

prohibiting the levy of a writ of execution. This Court 

again affirmed and explained its position in Williams and 

stated: 

The principle that child support installments past 

due and unpaid are not subject to modification is 

an old one in Montana law, havinq been articulated 

as early as Kelly v. ~elly (1945), 117 Mont. 239, 

157 P.2d 780. However, it was our decision in 
Williams v. Budke (Mont. 1980), 606 P.2d 515, 37 

St.Rep. 228, that adopted the view that restrictions on the right to levy for accrued child support is an impermissible ietroactive modificatioh. 

(Emphasis supplied.) 

Dawson, 674 P.2d at 1093. 

In response to the argument that the ruling was not in fact a 

modification, the court stated: 

However, the practical effect of the order was to 

defer appellant's right to levy execution on accrued child support payments. This constituted a 

retroactive modification and was erroneous. 

Dawson, 674 P.2d at 1093. 

In addition, this Court reaffirmed its previously stated 

position in Williams and again stated: 

Moreover, in Dahl v. Dahl . . . we pointed to 

Section 40-4-208 (l), MCA, to the effect that a 

divorce decree cannot be modified to cancel past 

due and unpaid child support. (Emphasis supplied.) 

Dawson, 674 P.2d at 1093. 

In these two cases, we find the strong position of this 

Court that a divorce decree cannot be modified to cancel 

unpaid and past due child support and. that to even place a 

restriction on the right to levy for such accrued support is 

impermissible modification. The present case does not address the clear position of these cases and a number of 

others which have reinforced the statutory provision that a 

modification may be made of a support order only as to future 

rather than past due installments. 

In State of Washington ex re. Blakeslee v. Horton 

(Mont. 1986), P.2d , 43 St.Rep. 1321, we for the 

first time applied equitable principles to bar collection of 

past due and unpaid child support installments. That was a 

distinctive case in which the course of conduct on the part 

of both mother and father had extended over a period of 
fourteen years. Perhaps we can say that the unique circumstances in such a case justify the equitable position taken. 

I have a real problem in attempting to apply the same rationale to the present case. The legislative view of the power 

of the district court and this Court is contained in S 

40-4-208, MCA, where the legislature states that a court may 

modify a decree as to support only as to installments accruing subsequent to the motion. In the present case the majority has responded to an equitable argument which should be 

directed to the legislature. Certainly it may be reasonable 

to suggest to the legislature that courts should be given 

authority to modify support provisions on equitable theories 

such as involved in the present case. However, I believe we 

have gone beyond the function of this Court in making the 

legislative modification ourselves. 

In further support of the contention that child support 

decrees cannot be modified as to installments accruing subsequent to the motion for modification are the Commissioners' 

Notes to what has been adopted in Montana as § 40-4-208, MCA: 

Subsection (a) makes each installment under an 

order for periodic support or maintenance final and 

non-modifiable when it falls due. The accrued 

installments cannot be modified retroactively, and 

future installments can be modified only as to 

those falling due after a motion for modification 

has been filed. The purpose of thus making each 

installment final and non-modifiable when it becomes due is to give each past due installment the 

status of a final judgment entitled to full faith 

and credit in other states pursuant to the decisions of the Supreme Court in Lynde v. Lynde, 21 

S.Ct. 555, 181 U.S. 183, 45 L.Ed. 810 (1901); 

Sistare v. Sistare, 30 S.Ct. 682, 218 U.S. 1, 54 

L.Ed. 905, 28 LRANS 1068, 20 Ann.Cas. 261 (1910); 

Barber v. Barber, 65 S.Ct. 137, 323 U.S. 77, 89 

L.Ed. 82, 157 A.L.R. 168 (1944); and Griffin v. 

Griffin, 66 S.Ct. 556, 327 U.S. 220, 90 L.Ed. 635 

(1945). 
Uniform Marriage and Divorce Act Commissioner's Notes, 5 316. 

The Commissioners' Notes provide a simple statement of 

the law. Many state courts have followed this statement of 

the law and have steadfastly refused to consider retroactive 

child support modification. See Ferry v. Ferry (Neb. 1978) , 

271 N.W.2d 450; Jahn v. Jahn (Ind. 1979), 385 N.E.2d 488; 

Gomez v. Gomez (N.M. 1978), 587 P.2d 963; worthley v. 

Worthley (Cal. 1955), 283 P.2d 19; Gamble v. Gamble (DOC. 

1969), 258 A.2d 261; Robertson v. Cason (~a. 1967), 203 So.2d 

743; Hatch v. Hatch (Ariz. 1976), 547 P.2d 1044; McAdams v. 

Scullin (Ill. 1977), 368 N.E.2d 1036; In re Hart's ~arriage 

(Colo. 1975), 533 P.2d 42. Oregon allowed a modification, 

but did so under a different statute. See Emanuel v. Emanuel 

(Or. 1978), 5 F.L.R. 2156. 

I would reverse the District Court and remand for a 

determination of the support accruing subsequent to the 

filing of the motion, for which an award can be made as 

Mr. Justice L. C. Gulbrandson: 

I join in the foregoing dissent of Mr. Justice Weber. 

Mr. Chief Justice J.A. Turnage: 

I join in the foregoing dissent of Mr. Justice Weber.