No. 85-639 INTHE SUPREME COURT OF THE STATE OF MONTANA 1986

STATE OF WASHINGTON, ex rel., JEANNEA. BLAKESLEE, Petitioner/Appellant,

VS. RONALD ALSON HORTON, SR., Respondent.

APPEAL FROM: District Court of the Thirteenth JudicialDistrict, In and for the CountyofYellowstone, The Honorable CharlesLuedke, Judgepresiding.

COUNSELOF RECORD: ForAppellant: Harold Hanser,Yellowstone CountyAttorney, Billings, Montana, TerenceM. Swift,Deputy County Attorney, Billings, Montana,

For Respondent: StephensLawFirm;Robert L. Stephens,Jr., Billings,Montana.

Submitted on Briefs: April 30, 1986 Decided: July 24, 1986

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# &&LL*aClerkMr. Justice JohnConwayHarrison delivered the Opinionof the Court.

This is an appeal by the petitioner from an order of the Yellowstone County District Court, the Honorable Charles Luedke presiding, denying enforcementof a petition for child support made under the Uniform Reciprocal Enforcement of SupportAct ("URESA")

# . We affirm. On December 18, 1984, the petitiner/appellant, Jeanne Blakeslee ("mother"), filed a petition for support under URESA in the County Attorney's office in Clark County, Washington. The mother was at that time a resident of Clark County,Washington. The petition requested that respondent, Ronald Horton ("father"), be ordered to pay current child support in the amount of $50 per month and that an order be entered granting the mother a judgment in the sum of $8,850 for support arrearages owed to her as of December 18, 1984. The mother and father had been granted a divorce decree in March of 1970 in Yellowstone Countywhich ordered the father to pay support in the amount of $50 per month to the mother for the support of their minor child. The record is undisputed that the father has never made any support payments to the mother as specified in the divorce decree. The mother's URESA petition was forwarded to the Yellowstone County Attorney's Office in January of 1985 for enforcement. The District Court thereafter issued an order to show cause to the father asking him to come before the court and explain why he should not be required to pay the child support the mother had requested in her petition. A hearing on the matter was held, without a court reporter present, and on November 27, 1985, Judge Luedke issued his memorandum and order. In the order Judge Luedke determinedthat the husband did not owe any current or past due child support as requested by the mother in her petition. From thisruling the mother has appealed. The mother now presents the following issue for review by this Court: Whether the order of the DistrictCourt which excuses the father from paying the child support ordered in the divorce decree is an abuse of the court's discretion and endangers the welfare of the minor child of the parties by denying the child its right of support? It should also be noted that the father in his brief suggests that JudgeLuedke's above mentioned ordermay notbe

a "final" judgment or order in thismatter therebymaking it non-appealable under Rule 1(a)

## ,M.R.App.Civ.P. We disagree. After reviewing Judge Luedke's memorandum and order, it appears to this Court that Judge Luedke made a final determination of themother's request for child support under her URESA petition. Such a determination by Judge Luedke constitutes an appealable order under Rule l(a). In her brief, the mother strongly argues that the District Courtblatantly abused its discretion in refusing to order the father to support his minor child. The mother contends the court's decision totally ignores thewelfare of the child and its right to support. Furthermore, themother points out, the court's order is contradictory to existing Montana law. On the surface, the mother's argument appears to have

some merit, especially in light of the harsh result as ordered by the District Court. However, when the court's decision is considered in light of the circumstances surrounding this case, the result seems to come into perspective. In his order and memorandum Judge Luedkerecites in considerable detail the facts under which the mother pursued her URESA petition and the reasons why he believed her petition should be denied. We note we can find little, if any, fault with Judge Luedke's decision in this matter and we therefore adopt his well analyzed memorandum and order and offer the same as the basis for this opinion. This is an actionbrought under URESA against a father to enforce child support due under a March 27th, 1970,divorce Decreeproviding for payments of $50.00 per month commencing April, 1970, payable through the office of the Clerk of District Court. As of the date of the petition,which was filed in December, 1984, a total arrearage of $8,850.00 had accrued, no payment whatever having been made at any time. The father defends against enforcement through this proceeding by testifying that after the divorce, the mother took the position that if the father would stay out of her life and the child's life, they would stay out ofhis. The father has proceeded on this basis throughout the ensuing years. He has never made any application for modification of the Decree to eliminate the child support provision nor has he attempted to enforce the visitation privileges accorded him in the divorce Decree. There is no evidence from or on behalf of the mother with respect to such alleged understanding, either denying or admitting it. However, the mother has never before sought payment. At one point, when asked to sign a satisfaction of child support to permit the father to purchase a home, she first agreed, according the father, and then later changed her mind and refused. However, she took no affirmative action otherwise. The mother is not receivingpublic assistance, but hasmade a non-assistance assignment pursuant to the laws of the State of Washington for thepurposes of this action. All indications are that she is pursuing her petition on her own initiative, although she is utilizing the prosecuting attorneys in Washington and Montana for that purpose. The father has never seen the child involved, nor knownof itswhereaboutsor the whereabouts of the mother until this proceeding was instituted. Although child support payments were to be made through the Clerk of Court,no record thereof was ever set up, meaning that the father never made a payment and themothernever made any inquiry of that office concerning any payment. The totality of the circumstances appearing-- and the evidence is admittedly scanty from the standpoint of the mother--indicates that the parties did arrive at a mutual arrangement where each stayed away from the other,and that this was a satisfactory status to both parties until something prompted the mother to take advantage of the legal fact that child support in a Decree is a judgment which is constantly accruing on a monthly basis and is not subject to retroactivechange. Consequently, she can turn the clock backwards on theunderstanding whichwas entered intoand became consummated by mutual observance over the years, and create a financial windfall situation--one that can be pursued through County prosecuting offices by filling out and signing forms in a local office without any personal expense toher. The father and the child, on the other hand, cannot turn the clock backwards to recapture the association which they should have had and could have had, except for the agreementwhich wasmade and hasbeen followed. The law is clear that the arrearage in child support payments cannot be modified by the Court upon any retroactivebasis. [§ 40-4-208, MCA.

### I The law is also clear that the child support and child visitation are separate incidence, neither being dependent nor conditioned upon the other. [$40-5-124, MCA; see, State Ex Rel. Dewyea v. Knapp (Mont. 1984), 674 P.2d 1104,41 St.Rep. 143.1 These legal principles, however valid they may be as a general rule, are rendered impotent when the parties mutually agree that they be ignored and also carry out such agreement in actual fact for fourteen years, as has been donehere. The arrearage for child support may remain technically inviolable and the theoretical right to visitation may continue on the same basis, but the enforceability of each in this case cannot be automatically implemented without any recognition being given to the reality of the past acts and omissions chargeable to the parties. Equity cannot allow the mother to articipate in nullification

## -- of thepurposeof 

## ----- 'the law in fax and, at the same time, allow her 

### to claim the 

### - 

### ---- benefit 

## --- of it in theory, simp~b~ause thereis a meter runningwhich can total a dollar 

### - - loss in child support,

### butnothing to total the 

## -- - 

## - loss of a father-son association. 

### --- (Emphasis added.) The mother has been satisfied with silence for fourteenyearsand receivedwhat must havebeen construed by her to be a benefit for both herself and the child,i.e., a complete lack of contact with the father. There is no assertion made or even suggested by the mother that the present request is foundedupon any actualneed of the child which has existed, but has not been satisfied over theyears, orwhichhas now arisen and could serve to validate her action in pursuing payment at this belated point. If evidence exists which explains, from the standpoint of the mother and child, why the mother was content to consider the lack of any contact with the father as anything other than an a.cceptable trade-off against receipt of child support, it has not been made known to the Court. Upon the basis of the record now before the Court, a concern does arise as to whether the Court is being properly used, and for that reason the evidence before the Court does demonstrate that the respondent has shown ample cause why the Court should not order at this time and in this cause what has been requestedby thepetitioner. IT IS SOORDERED. We find Judge Luedke'smemorandum and order speaks for itself. Although legally the mothermay havebeen correct in her claim for child support, equity demands that her claim must fail. ThisCourthas longadhered to such principles of equity. We have noted that there are circumstanceswhere a litigant may be remediless

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..unless equity could afford him relief." Link v. Haire (1928), 82Mont. 406, 420, 267 P. 952, 956. Further,we have stated that "[w] hen a District Court sits as a courtof equity,it isempowered todetermine the questions involved in the case and to do complete justice.

### " Sawyer-Adecor International, Inc. v. ~nglin (1982), 198 Mont. 440, 455, 646 P.2d 1194, 1202. See also, Rase v. Castle Mountain Ranch, Inc. (Mont. 19811, 631 P.2dIn conclusion,we note that the instant case does not 

### -- reverse ormodify ourprevious case lawwhich holds that each installment under an order for periodic child support is final and non-modifiable when it falls due. We only hold that Judge Luedke's memorandum and order constitutes a sound exercise of the District Court's discretion and also is a correct application of accepted principles of equity in this state.The order of theDistrictCourt isaffirmed.

We concur: A

_I,

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