No. 85-317 

IN THE SUPREME CGUR-T OF THE STATE OF MONTANA 

1986 

IN RE THE MARR.IAGE OF 

DAVID D. BORDNER, 

Petitioner and Respondent, 

and 

LANOR ff&E EORDNER, 

Respondent 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: 

Matovich & Addy; Bard G. Eliddleton, Billings, Montana 

For Respondent: 

Datsopoulos, MncDonald & Lind; David R. Cotner, 

Missoula, Montana 

Submitted on Briefs: Dec. 18, 1985 

Decided: March 11, 1986 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Appellant, Lanor Mae Bordner, appeals from the order of 

the District Court denying her motion to hold appellee, David 

D. Bordner, in contempt for failing to satisfy accrued 

judgments for child support. 

The record of this case and the findings of fact made by 

the District Court disclose the following: The parties' 

marriage was dissolved by decree of dissolution of marriage 

on Ju1.y 5, 1979. During the parties' marriage, two minor 

children were born as issue of the marriage, namely Laura 

Lynn Bordner, horn January 13, 1964, and David Daniel 

Bordner, Jr., born January 14, 1966. 

The dissolution decree and the parties' separation 

agreement dated June 27, 1979, provided that David would. make 

child support payments to Lanor through the Clerk of Court, 

Missoula County, Montana, until each child completed high 

school following his or her eighteenth birthday in the sum of 

$150.00 per month, per child. 

In April, 1980, Laura moved from her mother's home 

because of friction which had developed within the family. 

She moved. to her father's residence in Washington State. 

This move was intended to be permanent and was with the 

consent of Lanor. Laura, however, lived with David for a 

period of only four months. 

Upon returning to Montana, Laura returned for a brief 

period of time to her mother's house, then moved to a halfway 

house and eventually to a group home where she resided 

throughout the remainder of her minor years. The Department 

of Social and Rehabilitative Services assumed temporary legal 
custody of Laura by order of the District Court. in June, 

1981. 

In 1980, and 1981 David fell into arrears on his child 

support payments due to unemployment. In January 1981, Lanor 

filed a petition for support under the Uniform Reciprocal 

Enforcement of Support Act. As a result of that petition, 

David was ordered by the Superior Court of Washington for 

Grays Harbor County to pay the sum of $150.00 per month for 

the support of the minor children and $25.00 per month for 

his accumulative arrearage until liquidated. After David 

Daniel's graduation from high school in June, 1984, l avid's 

support order was modified to $75.00 per month by the State 

of Washington. The record indicates that David has fulfilled 

his support obligations under the Washington support order. 

The District Court found that as of March 29, 1985, a 

total of $1,450.00 of accrued child support obligations was 

unpaid and owing by David to Lanor. The District Court 

arrived at this amount by relieving David of his duty to 

support Laura between April, 1980, and January, 1982. In 

conclusion of law number one, the court stated: 

Petitioner was relieved of his child support 

obligations between April, 1980, and January, 1982. 

From April, 1980, through July, 1980, Laura 1,ynn 

Rordn~r was integrated into Petitioner's family 

home with Respondent's consent. That during this 

period Petitioner provided 100% of Laura's support. 

From August, 1980, through January, 1982, Laura 

Lynn Bordner was emancipated and therefore pursuant 

to M.C.A. 5 40-4-208 Petitioner's child support 

obligation was terminated. 

The District Court al-so concluded that David should pay the 

arrearages at the rate of $75.00 per month. 

The parties' separation agreement provided: "Should any 

action he commenced to enforce, modify or interpret any 

provision contzined herein, the Court, as a cost of suit, 
shall award a reasonable attorney's fee to the successful 

party. " The District Court denied Lanor's request for 

attorney's fees because she did not "prevail at the hearing." 

The following issues are raised on appeal: 

1. Whether a parent obligated to pay child support mey 

automatically terminate the provisions for the support upon 

the emancipation of his child. 

2. Whether the District Court erred by concluding that 

Laura was emancipated from August, 1980, through January, 

1982. 

3. Whether the District Court erred in relieving David 

of his child support obligation between April, 1980, and 

January, 1982. 

4. Whether the District Court erred by adopting a 

deferred payment plan for the payment of unpaid and 

delinquent child support without reference to contempt, and 

5. Whether the District Court erred when it denied 

Lanor her costs and attorney's fees incurred in enforcing 

judgments for the accrued child support obligation. 

We first address David's contention that the provisions 

for the support of a child are automatically terminated by 

emancipation of the child. under 5 40-4-208 (5) , MCA, and. that 

no further act of the obligated parent is necessary. Section 

40-4-208 (5), MCA, states: 

Unless otherwise agreed in writing or expressly 

provided in the decree, provisions for the support 

of a child are terminated by emancipation of the 

child . . . 

To agree with David's contention would be to give the 

obligated parent the discretion to unilaterally declare the 

emancipation of: his child and terminate support payments. 
At least one other court has addressed this issue. In 

Patrzykont v. Patryzykont (Kan. 1982), 644 P.2d 1009, 1012, 

the Court of Appeals of Kansas held that emancipation does 

not necessarily terminate the obligation of support and would 

be an inappropriate event for justifying automatic 

termination by the parents without sanction of the court. 

Emancipation signifies the surrender and renunciation of 

rights and duties in regard to care, custody and earnings of 

a child. It is true that at the age of majority, 

emancipation is automatic, and the parents' obligation for 

support ends without further zction by the court, unless 

there has been some voluntary agreement that support by one 

or both parents will conti-nue beyond majority. Herrig v. 

Herrig (1982), 199 Mont. 174, 187, 648 P.2d 758, 765. 

Clearly, however, whether a child is otherwise in fact 

emancipated will not be an easy qtzestion in all cases and 

surely not one to be left to the obligated parent. We 

therefore hold that for purposes of § 40-4-208(5), MCA, the 

question of whether a child is emancipated is a question of 

fact to be determined by the court. If emancipation can be 

established., a parent generally will have no further duty to 

support the child. Prior to the age of eighteen, however, 

there is a presumption against the emancipation of a child, 

and the burden of establishing emancipation is on the party 

asserting it. 

The next issue to be addressed is whether the District 

Court erred by concluding that Laura was emancipated from 

August, 1980, through January, 1982. The record discloses 

that after Laura returned to Montana from David's home in 

Washington, she lived with her mother briefly, then moved to 

a half-way house, and eventually to a group home. On June 
15, 1981, the District Court adjudicated Laura a youth in 

need of care and. ga.ve temporary legal custody of her to the 

Missoula County Department of Public Welfare. The record 

also discloses that during this period, Lanor provided Laura 

with various necessities, incl-uding personal items, shampoo, 

toothpaste, shoes, clothing, food and a place to stay 

periodically. She also paid for Laura's hair cuts, took her 

to job interviews, and provided her with transportation. 

Section 20-25-501, MCA, defines an emancipated minor for 

tuition purposes as: 

[A] person under the age of 18 years who supports 

himself from his own earnings or is married. A 

person who received more than 25% of the cost of 

supporting himself from any person other than an 

agency of the government shall not be considered an 

emancipated minor. 

There are no facts in the record nor any findings ma.de by the 

District Court t.o indicate that Laura was capable of 

supporting herself through her own earnings or whether she 

even had any earnings. 

This issue, however, raises the further question of 

whether a minor adjudicated a youth in need of care should 

ever be declared a fully emancipated minor. In this State, 

once a child is adjudicated a youth in need of care the court 

may order the county welfare department to conduct a 

financial status investigation of t-he child's parents and may 

ultimately order the parents' of the youth who is in the 

state's custody to make payment to the Department of Social 

and Rehabilitatjve Services. Section 41-3-1123 and 

41-3-1125, MCA. These statutes place a continuing duty of 

support on the parents while their child is a youth in need 

of care which runs contrary to the concept of emancipation. 

Further, S 41-3-408, MCA, states that the court 
"may . . . enter an order granting limited. 

emancipation . . . " to a youth in need of care. The statute 

gives the court no authority to find a youth in need of care 

a fully emancipated minor. Thus, we hold that the District 

Court erred in concluding that Laura was emancipated from 

August, 1980 to January, 1982 based on the record of this 

case and that a youth in need of care is limited by statute 

from attaining more than limited emancipation which in the 

riqht case may call for prospective modification of a child 

support obligation but not for termination of the obligation 

under S 40-4-208 (5) , MCA. 

The third issue raised for our consideration is whether 

the District Court erred in relieving David of his support 

obligation for Laura from April-, 1980, through January, 1982. 

The action of the District Court is contrary to S 

48-4-208 (I), MCA, which states: 

. . . a decree may be modified by a court as to 

maintenance or support only as to installments 

accruing subsequent to the motion for modification. 

There can be no doubt that the District Court modified the 

judgment. for accrued child support payments, and modified it 

retroactively. 

By relieving David of his support obligation for Laura 

during the 4 months she resided in David's home in 

Washington, the District Court. abused its discretion and 

modified the plain meaning of the terms of the parties 

settlement agreement and the dissolution decree. Gies v. 

Gies (Mont. 19841, 681 P.2d 1092, 1096, 41 St.F.ep. 1028, 

1032. Because Laura's move was intended to be permanent and 

was done with Lanor's consent, a motion for modification may 

have been proper at. that time. But once David's payments 

became due under the decree of dissolution, the law puts the 
burden upon him to make a positive act to modify his support 

obligation. State of Oregon ex rel. Worden v. Drinkwal-ter 

(Mont. 1985), 700 P.2d 150, 153, 42 St.Rep. 599, 602-03. 

Since David made no motion for modification once his payments 

had accrued, the decree could no longer he modified to cancel 

past due and unpaid child support because the decree can be 

modified prospectively only. Dahl v. Dahl (1978) , 176 Mont. 

307, 310, 577 P.2d 1230, 1232. 

Having already determined that termination of support 

due to the emancipation of a minor must be done by motion and 

that Laura was not emancipated from August, 1980, to January, 

1982, we now hold that a motion for termination under 5 

40-4-208 (5), MCA, shall be governed by S 40-4-208(l), MCA. 

In other words, a decree may be modified to terminate support 

due to the emancipation of a child only as to installments 

accruing subsequent to the motion. 

The next issue raised is whether the District Court 

erred by adopting a deferred payment plan for the payment of 

unpaid and delinquent child support without. reference to 

contempt. In Williams v. Rudke (1980), 186 Mont. 71, 77-8, 

606 P.2d 515, 518-19, a case factually analogous to the 

instant case, this Court held that when a. husband is brought 

before the District Court on a motion. that he be held i.n 

contempt for failing to make support payments and the 

District Court adopts a deferred schedule without finding the 

husband guilty of contempt, the action of the District Court 

constitutes an improper modification of a judgment for 

accrued payments. The rationale for this rule is that: 

The District Court always has jurisdiction in 

contempt proceedings for the purpose of enforcing a 

support money decree, to find the defaulting party 

in contempt, and to stay the execution of 

punishment for the contempt upon the provisio that 
the defaulting party purge himself by making 

payments in accordance with a schedule established 

by the District Court. Williams, 186 Mont. at 78, 

606 P.2d at 519; State v. District Court (19481, 

122 Mont. 61, 72-6, 198 P.2d 761, 767-69. 

In the instant case the District Court denied Lanor's 

motion for contempt and approved payment of arrearages at 

$75.00 per month. As stated in Williams, this constitutes a 

modification of a jud.gment for accrued payments which cannot 

be done, without finding David in contempt. To hold. 

otherwise would be to take away Lanor's right to levy 

execution for the accrued payments if property could be found 

in the possession of David which could be applied to the 

arrearages. 

We further note that the District Court appeared to give 

approval to the Washington URESA order modifying David' s 

support payment to $75.00 per month. We, however, have 

stated. that the authorj-ty of the court originally orderiag 

payment is not affected or its order modified by an order of 

the court of the responding state fixing another or different 

sum. Campbell v. Jenne (1977), 172 Kont. 219, 222, 563 P.2d 

574, 577. 

Finally, based on our discussions above, we hold that 

Lanor was entitled to her attorney's fees pursuant to the 

parties separation agreement. 

We reverse and remand with instructions t.o the District 

Court to determine the amount of child support owed by David 

without relieving him of his support obligation for Laura 

between April, 1980, and January, 1982 and to enter a 

judgment for that amount. 
We Concur: 

./ 

Chief 

m~k, Justice