No. 85-639 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

STATE OF WASHINGTON, ex rel., 

JEANNE A. BLAKESLEE, 

Petitioner/Appellant, 

VS. 

RONALD ALSON HORTON, SR., 

Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Charles Luedke, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Harold Hanser, Yellowstone County Attorney, 

Billings, Montana, 

Terence M. Swift, Deputy County Attorney, 

Billings, Montana, 

For Respondent: 

Stephens Law Firm; Robert L. Stephens, Jr., 

Billings, Montana. 

Submitted on Briefs: April 30, 1986 

Decided: July 24, 1986 

P 

&&LL *aClerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal by the petitioner from an order of 

the Yellowstone County District Court, the Honorable Charles 

Luedke presiding, denying enforcement of a petition for child 

support made under the Uniform Reciprocal Enforcement of 

Support Act ("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 County which 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 19 85 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 determined 
that the husband did not owe any current or past due child 

support as requested by the mother in her petition. From 

this ruling the mother has appealed. 

The mother now presents the following issue for review 

by this Court: Whether the order of the District Court 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 Judge Luedke's above mentioned order may not be 

a "final" judgment or order in this matter thereby making 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 the mother'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 Court blatantly abused its discretion in refusing to 

order the father to support his minor child. The mother 

contends the court's decision totally ignores the welfare of 

the child and its right to support. Furthermore, the mother 

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 Luedke 
recites 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 action brought under URESA against a 

father to enforce child support due under a 

March 27th, 1970, divorce Decree providing 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 of his. 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 receiving public assistance, but has made a 

non-assistance assignment pursuant to the laws 

of the State of Washington for the purposes 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 known of its whereabouts or 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 the mother 
never 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 retroactive change. 

Consequently, she can turn the clock backwards 

on the understanding which was entered into and 

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 to her. 

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 agreement which 

was made and has been followed. 

The law is clear that the arrearage in child 

support payments cannot be modified by the 

Court upon any retroactive basis. [§ 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 

done here. 

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 the purposeof ----- 'the law in fax 

- and, ---- at the same time, allow her to claim the 

benefit --- of it in theory, simp~b~ause there 
- is - a meter running which can total a dollar 

-- loss in child support, but nothing to - total the - 

--- loss of a father-son association. (Emphasis added. ) 

The mother has been satisfied with silence for 

fourteen years and received what must have been 

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 founded upon any actual need 

of the child which has existed, but has not 

been satisfied over the years, or which has 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 

requested by the petitioner. 

IT IS SO ORDERED. 

We find Judge Luedke' s memorandum and order speaks for 

itself. Although legally the mother may have been correct in 

her claim for child support, equity demands that her claim 

must fail. This Court has long adhered to such principles of 

equity. We have noted that there are circumstances where a 

litigant may be remediless ". . . unless equity could afford 

him relief." Link v. Haire (1928), 82 Mont. 406, 420, 267 P. 

952, 956. Further, we have stated that " [w] hen a District 

Court sits as a court of equity, it is empowered to determine 

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.2d 
In conclusion, we note that the instant case does -- not 

reverse or modify our previous case law which 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 the District Court is affirmed. 

We concur: 

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