No. 83-454 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

IN RE THE MARRIAGE OF 

JEANNE M. GOOD, n/k/a JEANNE 

M. HARGETT, 

Plaintiff, Respondent and 

Cross-appellant, 

and 

GOOD, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable J.M. Salansky, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant : 

Garlington, Lohn & Robinson; E. Craig Daue, Missoula, 

Montana 

For Respondent : 

Hash, Jellison, O'Brien & Bartlett; James C. Bartlett, 

Kalispell, Montana 

-- 

Submitted on Briefs: June 7, 1984 

Decided: November 15, 1984 

Clerk 
Mr. Justice *John Conway Harrison delivered the Opinion of 

the Court. 

Appellant, Orville K. Good, filed a motion in the 

Eleventh Judicial District, County of Flathead, seeking to 

have the District Court declare his child 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 orally agreed 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 to judgment against the husband 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 the amount of child support accrued? 

Facts 

By decree dated June 10, 1970, the marriage between 

appellant and respondent was terminated, the four minor 
children 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 the Eleventh 

Judicial District in and for the County of Flathead. 

Respondent has lived in the State of Washington since 

before the divorce in 1970. Appellant has consequently made 

his child support payments to the Washington Department of 

Social and Health Services (WDSHS) and in July 1970 WDSHS 

reduced appellant's support payments to a total of $150 per 

month. WDSHS was the payee of appellant's support payments 

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 to WDSHS all unpaid child 

support accrued to that date under the Montana decree. 

Appellant and respondent agreed orally between 

themselves that appellant would pay certain of the 

children's medical and dental bills and in return respondent 

would give him credit against his child support obligation. 

The parties further agreed informally that appellant would 

not be obligated to respondent for support of a child while 

that child lived with him. 

Each of the four children has lived with 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 

certain payments to respondent. 
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. 

By motion dated November 10, 1982, appellant sought an 

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 the WDSHS. 

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 sums he paid to physicians and dentists in reliance upon 

an oral promise of credit by the custodial parent. 

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 the parties 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 (an approach evidently overlooked by 

respondent): 

"Two Montana 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, af ter 

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, in whole or in part, 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 
left unscathed 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 to WDSHS. 

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, show payments 

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: 

Total per Decree $25,000.00 

Less records by State of 

Washington -$7,057.50 

Less payment acknowledged -$5,000.00 

Less IRS payment -$ 698.96 
Less credits for stay 

Less credits for medical, 

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. That Defendant should be given credit 

for payments on behalf of the children 

made in the past for medical, dental or 

orthodontal expenses. 

"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 his support obligation 

and that burden has not been met. 

"5. The Court has jurisdiction over this 

matter and has the right to protect 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 

costs of 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, Welfare Department; 

"3. That in the event the sum is 

collected involuntarily by execution, 

Jeanne PI. Hargett shall report the amount 

received to the Washington Department of 
Welfare; 

"4. That the request of Jeanne M. Hargett 

to have her travel expenses paid and to 

have attorney's fees assessed, together 

with her motion for increased child 

support will be heard by the Court on the 

19th day of August, 1983, at 9:30 

o'clock, a.m.; and the Defendant shall 

have his affidavit of 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 

said hearing . " 

The appellant argues that due to the fact his wife 

received public assistance from the State of Washington and 

assigned all of her unpaid child support accrued through 

September 30, 1979 to the WDSHS, he has no further 

obligation to pay the amount set forth in the decree. He 

argues the WDSHS has the statutory authority to compromise 

or charge off any support arrearages assigned to it and that 

during the term of the assignment the WDSHS agreed to the 

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 to the WDSHS and the resulting compromise made with 

that agency. He further argues the wife's assignment of her 

child support rights under the Montana 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 to this 

case. There is no question the effect of the wife's 

interest in the accrued support payments to the state can be 
assigned and allows the state to step into the shoes of the 

wife. However, the wife does not have the right to modify 

the divorce decree for the accrued child support payments. 

Nor does entering into an assignment to receive welfare in 

any way affect the judgment 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) 176 Mont. 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 total charge-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 statute does not pertain to 

support arrears due a parent. Clearly the state is not 

subrogated to anything in excess of the amount awarded in 

the original decree. As noted in Moore v. Yoore (Wash. App. 

1978), 583 P.2d 1249, the Washington court followed its own 

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 

she was on welfare. 
111. 

Appellant finally asserts as error the District 

Court's mathematical computation in adding a disallowed 

credit to the total amount of support accrued. We need 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 to enforce the terms of 

support as specified by the District Court decree; not to 

enforce an extrajudicial modification by the WDSHS. 

However, since the WDSHS is an assignee it has the right to 

proceed against the husband for any arrearages under its 

agreement with him. "This should not preclude the wife 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 to the WDSHS in order to receive public 

assistance. The husband had fallen behind in his payments 

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 the amount of delinquent support and a month 

later the husband moved to join the WDSHS as a necessary 

party. The court denied the motion but amended the amount 
of delinquent support segregating what was owed the wife and 

what was owed the husband. 

The husband appealed contending his ex-wife "was not 

entitled to a judgment for any child support during the 40 

months in which she was paid public assistance because she 

had assigned all her right, title and interest to support 

payments to the state." Moore, at p. 1.251. The Court of 

Appeals of Washington affirmed the wife's right to proceed 

in her own right against the husband even for the period she 

had assigned her support rights to the ImSHS. The court 

reasoned the intent of the legislature when it enacted the 

sta.tute requiring 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 the motion to show cause 

on the state so that it would have been 

aware of the proceedings earlier in order 

to give the department an opportunity to 

intervene. However, under these 

circumstances, she should not be estopped 

to proceed by the state's failure to 

prosecute." Moore at p. 1252. 

In other words, simply because the WDSHS had allowed the 

husband to fall into arrears on his support during the 

period of assignment the wife was not precluded from seeking 

to collect those arrears. 

In the instant case we similarly hold the wife may sue 

to recover any arrearages under the Montana decree, the 

agreement between the husband and the WDSHS notwithstanding. 

This holding today is not to be construed to subject the 

husband to a double collection but rather to allow the wife 

to proceed on her own right while allowing the WDSHS (or any 
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 to reduce or cancel past due or unpaid child support 

payments and that the trial court did not err in granting 

the respondent, wife, a judgment for child support pursuant 

to the dissolution decree, including the amount of the 

public assistance received during that time. 

The the District Court is affirmed, except 

II \aebii g&) discusse in i sue 111. We 

return to the District Court with instructions to change its 

order to comply with this opinion. 

We concur: