### No. 81-471 INTHE SUPREME COURT OF THE STATE OF MONTANA 1982

LASZIO TORMA, Plaintiff and Appellant, and SANDRA LEE TORMA, Defendant,Respondent and Cross-Appellant.

Appeal from: District Court of the Eighteenth Judicial District, 

### In and for the County of Gallatin Honorable

### W. W. Lessley,Judgepresiding. Counsel of Record: For Appellant: Moore, Rice, O'Connell & 

### Refling, Bozeman,Montana For Respondent: Landoe,Brown, Planalp,Kommers and Lineberger,

Bozeman, Montana

Filed:

## I'UIAY6 Submitted on Briefs: February 1,1982 Decided: May 6, 

### 1982

d 

### ClerkMr. JusticeFrank B. Morrison, Jr., delivered the Opinion of the Court.

This appeal results from the Eighteenth Judicial District Court's interpretationand enforcementof a 1971 divorce decree. Pursuant to a 1971dissolutiondecree, respondent Sandra Tormawas given custody of their minor children, Christopher and Cynthia, then ages 10 and 7, respectively, and appellant Laszlo Tormawas "ordered to pay for the support of the two minor children in the sum of $125.00 per month. 

# .." Additionally, Sandrawas given the right to remain in possession of their jointly-owned house, located at 1208 South BozemanAvenue, Bozeman,Montana, "until such time as it is otherwisemutually agreed between theparties

or until further order of this Court. 

# .

# ." Eight and one-half years later, in January of 1979, Christopher, fivemonths short of age eighteen, joined the Navy, thus leaving respondent's immediate custody and care. Laszlo presently concluded that his support obligation as to Christopher was terminated,his underlying assumptionbeing that the decree provided for a severable sixty-two dollar and fifty cent obligationper dependent child per month. The clerk of court's records indicate that as of that month Laszlo reduced his child support payment by one-half. Sandra disagreed with Laszlo's interpretationof the decree. She instituted a contemptproceeding in March of 1981 seeking child supportarrearagesdue to Laszlo's unilateral reduction in payments; she also soughtmodifica,tionof the decree, requesting an increase in child support to $200.00 per month.After hearing the District Court concluded that Laszlo

was not entitled to an automatic reduction in child support upon Christopher Torma's emancipation. Accordingly, appellant

was ordered to pay respondent $1,625.00, a sum representing the balance of themonthly obligation owing from January, 1979 to the date of hearing. Additionally, the court found that Cynthia, a high school senior, was "an excellent student, ambitious and hopeful of continuing to a college degree" and that "she [would] need a place inwhich to live and increased financial needs to finish college." Judge Lessley concluded that appellant's obligation to provide $125.00 per month for Cynthia's support continued at least until she reached 18 and until she became 22 years old if she attended college. A corollary conclusion reached by the court was that the parties could not sell the Bozeman residenceuntil Cynthia turned 22; the netproceeds from the prospective salewere then to be divided equally between the parties. Attorney's fees were to be paid by the respectiveparties. Both parties appeal from the lower court'sorder. Laszlo contends the district court erred in ordering him to pay the child supportarrearages, continuing his child supportobligation until Cynthia reached 22 if she attends college, and postponing sale of the parties' house until Cynthia is 22 years old. Sandra raises as error the District Court's failure to order Laszlo to pay interest on the support arrearages and Sandra's attorney's fees, the denial of her motion to increase child support,and the equal division of the net proceeds of the future sale of the parties' residence. Child Support: Obligations forAdult Children, Arrearages, Interest,and Denial of Modification. Appellant contends that he is not legally obligated topay child support for his adult children. Appellant's understanding of Montana law is correct: unless the parties agree inwriting or the dissolutiondecree expressly provides for termination of child support at a specified age or time, a parent is not obligated to support an 18year old or otherwise emancipated child. Chrestensonv. Chrestenson

(1979), 180Mont. 96, 589 P.2d 148. Finding no agreement here nor any express provision in the divorce decree, Chrestenson controls. Accordingly, appellantwas not obligated to support Christopher after he entered theNavy and appellant will not be obligated to support Cynthia once she turns 18. To the extent the lower court concluded otherwise,either directly by ordering appellant to pay a monthly sum or indirectly by prohibiting the sale of theparties' residence until Cynthia turns 22,we find error and reverse in part. That is not to say appellant should prevail on his contention that he not be required to pay support arrearages accruing as of January, 1979. Whether appellantwho has been ordered by divorce decree to pay an undivided sum monthly for the support of two minor childrenmay unilaterally reduce by one-half the amount of such payments when the older child is emancipated

or reaches majority is a question of first impression for this Court; not so for the courts of sister states. Appellant refers this Court to Ditmanv. Ditman (1956), 48Wash.2d 373, 293 P.2d 759, as persuasive authority. There, theWashington Supreme Court upheld a trial court's construction of a similar support provision as providing a severable award for three children, thus permitting the noncustodial parent to automatically pro rate and reduce supportpayments when a child's dependency has "ceased byreason of death, emancipationby marriage, attainment of majority, [or] service in theArmed Forces of the United States. 

# .

# ." Ditman, 293 P.2d at 760. By respondent, this Court is urged to follow Taylor v. Taylor (1961),147 Colo. 140, 362 P.2d 1027, 1029,wherein the Colorado court states: "Whena divorce decree directs the father to pay a specified amountperiodically for the jointbenefit of more than oneminor child,the emancipation of one of such childrendoes not automatically affect the liability of the father for the full sum prescribed by the order. Rather itbecomes the burden of the father, if he so desires, tomake such showing aswould entitle him to be relieved of all or a part of such obligation." Review of the case law reveals that Taylor represents the rule adopted in the vastmajority of jurisdictions, see Becker v. Becker (1978Md.), 387A.2d 317, and cases cited therein, and for good reason: "'The reason for considering a single amount to be paid periodically for the support ofmore than one child as not subject to an automatic pro rata reduction is two-fold. First, a child support order is not based solely on the needs of theminor children but takes into account what the parent can afford to pay (citations omitted). Consequently, a child support order may not accurately reflectwhat the children actually requirebut only what the parent can reasonablybe expected to pay. To allow an automatic reduction of an undivided order would be to ignore the realities of such a situation. Second, to regard an undivided child support order as equally divisible among the children is to ignore the fact that the requirements of the individual childrenmay vary widely, depending on the circumstances. Cooper v. Matheny, [(1960), 220 Or. 390, 349 P.2d 812, 8131.' Delevettv. Delevett, [(1968), 156 Conn. 1, 238 A.2d 402, 4041." Becker, 387 A.2d at 320. We approve the rationale set forth in Becker and adopt the rule of Taylor. The District Court committed no error in interpreting its decree to require continuation of the entiremonthly supportpayment until the youngest childattainsmajority. Appellant is responsible for the arrearages

as calculated. As to the question of error regarding the lower court's failure to order interest on the child support arrearage, respondentproperly relies upon Fitzgeraldv. Fitzgerald

(1980) Mont. 

## , 618P.2d 867, 37 St.Rep. 1350. There, this Court reiterated that interest is automatically collectible by the judgment creditor spouse on past due support payments, absent contrary provision in a dissolution decree. Williams



### v. Budke (1980), Mont. 

### , 606 P.2d 515, 37 St.Rep. 228. The judgment of the lower court should be appropriately modified. Finally, the lower court's findings and conclusions of law are inadequate regarding respondent's petition for modification of child support; it is not apparent that the standards of section 40-4-208(2)(b), MCA, were considered or applied. See Bliss v. Bliss (1980), Mont. 

## , 609 P.2d 1209, 37 St.Rep. 708. The District Court is directed to make appropriate findings and conclusions upon remand. Property Division. This is the first time the District Court has attempted to apportion the parties' marital estate. In 1971,only personal property was divided, and thatwas accomplished by party agreement. Accordingly, the case law developed under the UMDA constitutesvalid precedent for the case at bar. Morse v. Morse (1977), 174Mont. 541, 571 P.2d 1147. The only asset subject to distribution is the residence located at 1208 South BozemanAvenue, Bozeman, Montana. Laszlo Torma argues that,by delaying sale of theparties' residence until after Cynthia turned 22 years of age, the DistrictCourt is forcing him to continue child supportbeyond majority. As stated above, such a provision cannot be justified unless there is an express agreement or decree provision providing for support of children into their adult lives. Chrestensen, supra. In this case, the four year prohibition on the sale of the house amounts to an abuse of discretion. As to Sandra's claim that it is inequitable to equally divide the net proceeds upon sale of the house, the following facts are pertinent. The District Court found that the parties purchased the home in February 1966 for $20,700.00 and that Sandra made $750.00 of the $1,000.00 downpayment on the property. From February 1966 until early 1971 the parties resided in the house. Sandra cared for the children and the house. Laszlo worked outside the home, and made occasional improvements to the house. Although the 1971 divorce decree did not specifywho was responsible for continued house payments, provision was made to allow Sandra and the children to remain in possession of the house until further court order or agreement of the parties. From June, 1971,until the time of hearing, the DistrictCourt found that Sandramade all of the payments on the mortgage, taxes, insurance and assessments on the house, the sum of those payments amounting to over $23,000.00. Further, the court found that thevalue of the house had appreciated over the years such that at the time of hearing its worth was estimated at $55,000.00. According to stipulation the balance remaining

on themortgage was $10,300.00 as of the date of hearing. The parties also stipulated that for the threeyears preceding the hearing Laszlo's income ranged from $18,072.00 in 1978 to $22,478.00 in 1980; Sandra's earnings were $2,994,00 in 1978, $4,076.00 in 1979 and $1,993.00 in 1980.As a general rule the District Court is afforded much discretion in resolving property divisions, and its judgment will not be altered unless a clear abuse of discretion is shown. Zellv. Zell (1977),174Mont. 216, 570 P.2d 33. "Thecriteria for reviewing the district court's discretion is: Did the district court in the exercise of its discretion act arbitrarily without employment of conscientious judgment,

or exceed the bounds of reason in view of all the circumstances?" Zell, 174Mont. at 220, 700 P.2d at 35. Here, it is not at all evident, contrary to the statement in thememorandum accompanying the lower court's findings of fact and conclusions of law, that "theefforts [of the parties] have been equal in the retaining and maintaining of this only and valuable asset of themarriage." In a situation very similar to this case, this Court recognized that equality and equity are not synonymous when the equity of the noncustodial parent is enhanced solely through the efforts of the custodial parent. Tefftv. Tefft (1981), Mont. 

### , 628 P.2d 1094, 38 St.Rep. 837. Not only is it essential to look at the relative contributions of the parties over the years in acquiring and retaining marital assets, it is imperative to

assess the relative ability of the parties to acquire property in the future. Smithv. Smith (1981)

## , Mont

# . , 622 P.2d 1022, 38 St.Rep. 146;Tefft, supra. While an equal division of net proceedsmay appear to be fair, the practical result of such a division is the party who contributed to maintain and enhance the equity in the house since the divorce receives littlebenefit from its appreciation. As this Court noted in Lawrencev. Harvey (1980), Mont

# .

, 607 P.2d 551, 37 St-Rep.370,a property division should at least reflect the relative contributions of theparties, as wellas entitleeach toa proportionate share of the appreciation inproperty values inthewake of divorce. The property divisionbelow ishereby vacated, and upon remand, theDistrictCourt isdirected toapply the factors setforthin section 40-4-202, MCA, inaccordance with the language of thisopinion. Sincewe areremanding the trialcourtmay consider the subject of attorney's fees ane

We Concur: 

# 3~d4, &~&..QQ, Chief Justice

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# r