### No. 83-454 

### INTHE SUPREMECOURTOF THE STATEOF MONTANA 1984

INRE THEMARRIAGE OF JEANNE

### M. GOOD,n/k/a JEANNE M. 

### HARGETT, Plaintiff,Respondent and Cross-appellant, and GOOD, DefendantandAppellant.

APPEAL FROM: District Court of the Eleventh Judicial District, Inand for theCounty of Flathead, TheHonorableJ.M. Salansky,Judgepresiding.

COUNSELOF RECORD: ForAppellant: 

### Garlington,Lohn & 

### Robinson;E. Craig Daue,Missoula, Montana For Respondent: 

### Hash,Jellison,O'Brien & 

### Bartlett; James

### C. Bartlett, Kalispell,Montana

-- 

### Submitted onBriefs: June 7,

### 1984 Decided: November 15,1984

Clerk

### Mr. Justice *JohnConway Harrison delivered the Opinion of theCourt. Appellant, Orville K. Good, filed a motion in the Eleventh Judicial District, County of Flathead, seeking to have theDistrictCourt declarehischild support obligation fully paid through the date of the motion. The Honorable James M. Salansky conducted an evidentiary hearing and entered an order in favor of appellant's wife for child support arrearage in the amount of $8,264.06. From that order 

### Mr. Good appeals and his ex-wife cross appeals. We a£ £irm.



### Issues (1)Whether an obligor husband may be given credit against his child support obligation for payments made outside the ambit of the divorce decree when the obligee wife has orallyagreed to such credit. (2) When an obligee wife who has assigned her child support rights under a Montana decree to another state and that state agrees with the obligor husband during the term of the assignment to 

### a reduction in his obligation, 

### is the wife later entitled tojudgment against thehusband for: a. the amount of the reduction; b. any other part of the child support assigned? (3)Did the trial court make a mathematical error in computing theamount of child support accrued?

Facts By decree dated June 10, 1970, the marriage between appellant and respondent was terminated, the four minorchildren were placed in the custody of their mother and appellant was ordered to pay fifty dollars per child per month child support. The decree was issued by theEleventh JudicialDistrict inand for the County of Flathead. Respondent has lived in the Stateof Washington since before the divorce in 1970. Appellant has consequentlymade his child support payments to the Washington Department of Social and Health Services (WDSHS) and in July 1970 WDSHS reduced appellant's supportpayments to

### a total of $150 per month. WDSHS was thepayee of appellant's supportpayments through September of 1979. From 

### time to time between the date of the divorce and September of 1979, respondent received public assistance from WDSHS and as 

### a condition to receiving such assistance assigned her support rights to that agency. The last 

### time such an assignment was made, June 6, 1979, respondent assigned toWDSHS allunpaid child supportaccrued tothatdateunder theMontana decree. Appellant and respondent agreed orally between themselves that appellant would pay certain of the children's medical and dentalbillsand inreturn respondent would give him credit against his child support obligation. The parties further agreed informally that appellant would not be obligated torespondent for support of a child while thatchild livedwith him. Each of the four childrenhaslivedwith appellant for certain periods of 

### time since the date of the divorce. Appellant has also paid certain medical and dental bills incurred by the children. In each instance appellant has taken credit against his support obligation by not making certainpayments torespondent.

### Through correspondence with appellant during 1982, WDSHS agreed to accept $3,000 as full payment of support obligation from the date of the divorce through September of 1979. Bymotion dated November 10, 1982,appellant soughtan order of the District Court declaring his child support obligation fully paid through that date. At no time prior to that motion did respondent seek to enforce her child support rights other than through theWDSHS.

Discussion

I. 

### Appellant's first issue on appeal and respondent's lone cross-appeal issue is whether it is proper to allow a non-custodial parent credit against child support arrearage for sumshe paid to physicians and dentists in reliance upon an oral promise of credit by the custodialparent. Based upon substantial evidence presented at the evidentiary hearing, the District Court Judge held there was

a proper agreement between the parents regarding credit for payment of medical and dental bills and accordingly awarded appellant more than $1,600 credit against his support obligation. Respondent argues the District Court erred in

so holding because such a ruling essentially permits the non-custodial parent to substitute his own judgment for that of the custodial parent as to how child support monies are to be spent. This argument is misplaced. The District Court did not rule on whether the father's judgment was being substituted for the mother's but rather ruled on

### whether there was an agreement between the two parents on this issue. The District Court found such an agreement between theparties and we see no error in that finding. The wife asked the husband to pay bills in lieu of support payments and he did so, relying on her judgment. Clearly, there was no substitution of judgment involved. Respondent further argues the dissolution decree cannot be modified to reduce or cancel past due and unpaid child support and then cites six cases to buttress the point. In one of those cases,Williams 

### v. Budke (1980),186 Mont. 71, 506 

### P.2d 515, this Court spelled out the correct approach to this issue (anapproach evidently overlooked by respondent): "TwoMontana decisions have addressed the issue of whether 

### a parent upon whom a child support obligation rests should be granted credit for voluntary expenditures made in a manner other than that specified in the support order or dissolution decree. Haaby 

### v. Haaby

(1974), 165 Mont. 475, 529 P.2d 1387; Weber v. Weber (1978), Mont., 576 P.2d 1102, 35 St.Rep. 309. However, after examining the case law of this and other jurisdictions we have found the basic question addressed by the courts is whether there has been substantial compliance, inwhole or inpart,with the child support order. Was the spirit and purpose of the support order accomplished without violating any other provision of the dissolution decree? We believe this is the correct approach to the issue." In the instant case,we find no violation of the spirit and purpose of the support order by granting appellant credit for payments made to medical institutions. This is true particularly since respondent asked appellant to do so. It

was nothing more than a streamlining of a 

### payment process; husband paid the doctors directly rather than going through the wife as an intermediary. The dissolution decree was

### leftunscathed by the transaction and we will not agree with respondent's contention that the District Court modified the divorce decree.

11. Next, appellant asserts as error the District Court's ruling that respondent was entitled to a judgment against him for the amount of the reduction in support payments granted by the WDSHS and for any part of the child support assigned by respondent to the WDSHS. In order to receive public assistance from the State of Washington, respondent assigned all of her unpaid child support accrued through September 30, 1979 to the WDSHS. During the term of the assignment the WDSHS agreed to a reduction in support and to a compromise of the arrearage with appellant. Appellant accepted, and made reduced payment toWDSHS. The court's findings of fact no. 7 and no. 

### 8 were as follows: 

### "7. That through January, 1983, and considering the dates three of the children obtained the age of majority, the total obligation of $50.00 per month per child is $25,000.00. 

### The records maintained by the State of Washinqton through September 18,1975, showpayments of $7,057.50. In addition, Plaintiff has acknowledged payments totaling $5,000.00 through January 1983. In addition, a recent payment made by attachment to Defendant's IRS check in the sum of $698.96 should be credited. "8. That the total amount of arrearage due is 

### calculated as 

### follows: Totalper Decree $25,000.00 Less recordsby State of Washington -$7,057.50 Less payment acknowledged -$5,000.00 Less IRS payment -$ 

### 698.96Less creditsfor stay Less creditsformedical,

dental and orthodontal payments -$1,629.48 TOTAL DUE throuqh Jan. 1983 Thereafter, the court made the following conclusions of law and order: "1. Pursuant to 40-4-208, MCA, the Court may modify child support only as to installments accruing subsequent to the 

### time a motion for modification 

### is filed. No motion for modification was submitted and the obligation to pay child support at $50.00 per month per child remains unchanged. That the Court finds no agreement on the part of Plaintiff to reduce the$50.00 sum to$37.50. "2. ThatDefendant should be given credit for payments on behalf of the children made in the past for medical, dental or orthodontalexpenses. "3. That the divorce decree provided for no cessation of support payinents during the summer visitation periods and Defendant should be given no credit for same other than those amounts hereinbefore given. "4. Defendant had the burden of proof of showing payment of hissupportobligation and thatburden hasnot been

### met. "5. The Court has jurisdiction over this matter and has 

### the right toprotect the parties by making the obligation for arrearage payable jointly to Plaintiff and the State of Washington, Welfare Department. ORDER 

### "1. That the Plaintiff shall recover of the Defendant the sum of $8,264.06, and costsof suit; "2. That the voluntary payment of said sum by Orville K. Good shall be made by check or money order made payable to Jeanne M. Hargett and the State of Washington, WelfareDepartment; "3. That in the event the sum 

### is collected involuntarily by execution, Jeanne PI. Hargett shallreport the amount received to theWashington Department ofWelfare; 

### "4. That therequest of Jeanne M. Hargett to have her travel expenses paid and to have attorney's fees assessed, together with her motion for increased child supportwillbe heard by theCourt on the 19th day of August, 1983, at 9:30 o'clock, a.m.; and the Defendant shall have hisaffidavitof financial statement filed ten (10)days before said hearing. Defendant shall produce for examination by Plaintiff's counsel his 1980 and 1981 income tax return as 

### well as wage statements for 1982 ten (10) days before saidhearing

# . " The appellant argues that due to the fact his wife received public assistance from the Stateof Washington and assigned all of her unpaid child support accrued through September 30, 1979 to the WDSHS, he has no further obligation topay the amount 

### set forth in the decree. He argues the WDSHS has the statutory authority to compromise

or chargeoff any supportarrearagesassigned to

### it and that during the term of the assignment the WDSHS agreed tothe reduction of the support. He further argues that because his wife acquiesced 

### in the actions taken by the appellant with the WDSHS for a period of thirteen years, she 

### is circumventing the effect of her unconditional assignment of support totheWDSHS and the resulting compromise made with that agency. He further argues the wife's assignment of her child support rightsunder theMontana decree 

### is valid. He cites the divorce decree herein 

### is a judgment under Montana law. Rule 54(A) Montana Rules of Civil Procedure. "There



### can be no question that a judgment 

### is assignable." Ginsberger v. Adams (1922),62 Mont. 430, 205 P. 658. We do not find the above citation applicable tothis

case. There 

### is no question the effect of the wife's interest inthe accrued supportpayments tothe statecan beassigned and allows the stateto stepinto the shoes of the wife. However, the wife does not have the right tomodify the divorce decree for the accrued child support payments. Nor does entering into an assignment to receive welfare in any way affectthejudgment of a court of this state. See, In re the Marriage of Linda Williams and Larry Williams (Mont. 1980), 612 P.2d 212, 37 St.Rep. 974; Williams 

### v. Budke (1980), 186 Mont. 71, 606 P.2d 515; Dahl v. Dahl (1978) 176Mont. 307, 577 P.2d 1230. The appellant 

### relies

on a Washington compromise statute for his assertion that the dissolution decree can be modified as to accrued child support. This compromise statute provides 

### in part: "The Department may accept offers of compromise of disputed claims from 

### a partial or totalcharge-off of support arrears owed to the Department to the total amount of public assistance paid to or for the benefit of persons for whom the support obligation 

### is incurred." See R.C.W. 75.20 A.220. It should be noted that the statute referred to and relied upon, reveals that the state may only compromise

arrears owed to the state. The statutedoes not pertain to support arrears due a parent. Clearly the state 

### is not subrogated to anything in excess of the amount awarded in the originaldecree. Asnoted inMoore v. Yoore (Wash. App. 1978), 583 

### P.2d 1249, theWashington court followed 

### itsown court decision and held that 

### its subrogation rights only apply to the amount of the court ordered support, and does not apply to the full amount that was paid by the State of Washington to the respondent in this case during the 

### time shewas on welfare.111. Appellant finally asserts as error the District Court's mathematical computation in adding a disallowed credittothetotalamount of support accrued. Weneed cite

no authority to settle a question of simple mathematics. Appellant owes X amount of arrearage. From that total he claims Y amount of credits. The District Court cannot do

more than disallow the claimed credits to the total amount of arrearage, to do so would be to charge appellant twice for an indebtedness--the mathematical equivalent of double jeopardy.

Summary Our holding today 

### is designed toenforce the terms of support as specified by the District Court decree; not to enforce an extrajudicial modification by the WDSHS. However, since theWDSHS 

### is an assignee it has the right to proceed against the husband for any arrearages under 

### its agreementwith him. "This shouldnotpreclude thewife from proceeding in her own right." Moore v. Moore (Wash. App. 1978), 583 P.2d 1249, 1252. In Moore the wife had assigned her support payments totheWDSHS inorder toreceivepublic assistance. The husband had fallen behind in hispayments sometime during the assignment and continued to be delinquent even after the assignment had been discontinued. The wife then started a show-cause proceeding to determine the amount of delinquent child support. The court entered

an order fixing theamount of delinquent supportand a month later the husband moved to join the WDSHS as a necessary party. The court denied themotion but amended the amount

### of delinquent support segregatingwhat was owed thewife and what was owed thehusband. The husband appealed contending his ex-wife "was not entitled to a judgment for any child support during the 40 

### months inwhich she 

### was paid public assistance because she had assigned all her right, title 

### and interest to support payments to the state." Moore, atp. 1.251. The Court of Appeals of Washington affirmed the wife's right toproceed inher own rightagainst thehusband even for theperiod she had assigned her support rights to the ImSHS. The court reasoned the intent of the legislature when it 

### enacted the 

### sta.tuterequiring the payee of public assistance to assign all support rights is 

### to recoup public monies. Therefore the WDSHS has a right to subrogation against the wife's judgment

# . However, the court stated: "A 

### better procedure might have been to serve a copy of themotion to show cause on the state so that it 

### would have been aware of theproceedingsearlierinorder togive the department an opportunity to intervene. However, under these circumstances, she should notbe estopped to proceed by 

### the state's failure to prosecute." Moore atp. 

### 1252. In other words, simply because the WDSHS had allowed the husband to fall into arrears on his support during the period of assignment thewifewas notprecluded from seeking tocollectthose arrears. Inthe instantcasewe 

### similarlyhold thewifemay sue to recover any arrearages under the Montana decree, the agreementbetween thehusband and the

### WDSHS notwithstanding. This holding today is 

### not to be construed to subject the husband toa double collectionbut rather toallow the wife toproceed on her own rightwhile allowing theWDSHS (orany

### other public assistance agency of any other state similarly situated) the right of subrogation against a recovery by her. We 

### hold that neither Washington nor Montana case or statutory law permits the modification of a dissolution decree toreduce or cancel past due or unpaid child support payments and that the trial court did not err in granting the respondent, wife, ajudgment for child support pursuant to the dissolution decree, including the amount of the public assistancereceived during that

### time. The theDistrictCourt is 

### affirmed, except II

### \aebii

# g&) discusse in i 

### sue 111. We 

### returntotheDistrictCourtwith instructionstochange its 

### order tocomplywith thisopinion.

We

### concur: