No. 81-471 

IN THE 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, Judge presiding. 

Counsel of Record: 

For Appellant: 

Moore, Rice, O'Connell & Refling, Bozeman, Montana 

For Respondent: 

Landoe, Brown, Planalp, Kommers and Lineberger, 

Bozeman, Montana 

Filed: I'UIAY 6 

Submitted on Briefs: February 1, 1982 

Decided: May 6, 1982 

d 

Clerk 
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of 

the Court. 

This appeal results from the Eighteenth Judicial District 

Court's interpretation and enforcement of a 1971 divorce 

decree. 

Pursuant to a 1971 dissolution decree, respondent 

Sandra Torma was given custody of their minor children, 

Christopher and Cynthia, then ages 10 and 7, respectively, 

and appellant Laszlo Torma was "ordered to pay for the 

support of the two minor children in the sum of $125.00 per 

month. . ." Additionally, Sandra was given the right to 

remain in possession of their jointly-owned house, located 

at 1208 South Bozeman Avenue, Bozeman, Montana, "until such 

time as it is otherwise mutually agreed between the parties 

or until further order of this Court. . ." 

Eight and one-half years later, in January of 1979, 

Christopher, five months 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 assumption being 

that the decree provided for a severable sixty-two dollar 

and fifty cent obligation per 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 interpretation of the 

decree. She instituted a contempt proceeding in March of 

1981 seeking child support arrearages due to Laszlo's unilateral 

reduction in payments; she also sought modifica,tion of 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 the monthly 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 in which 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 residence until Cynthia 

turned 22; the net proceeds from the prospective sale were 

then to be divided equally between the parties. Attorney's 

fees were to be paid by the respective parties. 

Both parties appeal from the lower court's order. 

Laszlo contends the district court erred in ordering him to 

pay the child support arrearages, continuing his child 

support obligation 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 for Adult Children, Arrearages, 

Interest, and Denial of Modification. 

Appellant contends that he is not legally obligated to 
pay child support for his adult children. Appellant's 

understanding of Montana law is correct: unless the parties 

agree in writing or the dissolution decree expressly provides 

for termination of child support at a specified age or time, 

a parent is not obligated to support an 18 year old or 

otherwise emancipated child. Chrestenson v. Chrestenson 

(1979), 180 Mont. 96, 589 P.2d 148. Finding no agreement 

here nor any express provision in the divorce decree, Chrestenson 

controls. Accordingly, appellant was not obligated to 

support Christopher after he entered the Navy 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 the parties' 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 appellant who has been ordered by divorce 

decree to pay an undivided sum monthly for the support of 

two minor children may 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 Ditman v. Ditman (1956), 

48 Wash.2d 373, 293 P.2d 759, as persuasive authority. 

There, the Washington 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 

support payments when a child's dependency has "ceased by 
reason of death, emancipation by marriage, attainment of 

majority, [or] service in the Armed 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: 

"When a divorce decree directs the father 

to pay a specified amount periodically for 

the joint benefit of more than one minor 

child, the emancipation of one of such 

children does not automatically affect the 

liability of the father for the full sum 

prescribed by the order. Rather it becomes 

the burden of the father, if he so desires, 

to make such showing as would 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 vast majority of jurisdictions, see 

Becker v. Becker (1978 Md.), 387 A.2d 317, and cases cited 

therein, and for good reason: 

"'The reason for considering a single amount 

to be paid periodically for the support of more 

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 the minor children but takes into account 

what the parent can afford to pay (citations 

omitted). Consequently, a child support order 

may not accurately reflect what the children 

actually require but only what the parent can 

reasonably be 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 children may 

vary widely, depending on the circumstances. 

Cooper v. Matheny, [(1960), 220 Or. 390, 349 

P.2d 812, 8131.' Delevett v. 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 

entire monthly support payment until the youngest child 
attains majority. 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, 

respondent properly relies upon Fitzgerald v. Fitzgerald 

(1980) Mont. , 618 P.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 that was accomplished by 

party agreement. Accordingly, the case law developed under 

the UMDA constitutes valid precedent for the case at bar. 

Morse v. Morse (1977), 174 Mont. 541, 571 P.2d 1147. 

The only asset subject to distribution is the residence 

located at 1208 South Bozeman Avenue, Bozeman, Montana. 

Laszlo Torma argues that, by delaying sale of the parties' 

residence until after Cynthia turned 22 years of age, the 

District Court is forcing him to continue child support 
beyond 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 specify who 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 District Court found 

that Sandra made 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 the value 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 the mortgage was $10,300.00 as of the date of hearing. 

The parties also stipulated that for the three years 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. Zell v. Zell (1977), 174 Mont. 216, 570 P.2d 33. 

"The criteria 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, 174 Mont. at 220, 700 P.2d at 35. 

Here, it is not at all evident, contrary to the statement 

in the memorandum accompanying the lower court's findings of 

fact and conclusions of law, that "the efforts [of the 

parties] have been equal in the retaining and maintaining of 

this only and valuable asset of the marriage." 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. Tefft v. 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. Smith v. Smith (1981) , Mont . , 622 

P.2d 1022, 38 St.Rep. 146; Tefft, supra. While an equal 

division of net proceeds may 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 little benefit from its appreciation. As 

this Court noted in Lawrence v. Harvey (1980), Mon t . 

, 607 P.2d 551, 37 St-Rep. 370, a property division 

should at least reflect the relative contributions of the 
parties, as well as entitle each to a proportionate share of 

the appreciation in property values in the wake of divorce. 

The property division below is hereby vacated, and upon 

remand, the District Court is directed to apply the factors 

set forth in section 40-4-202, MCA, in accordance with the 

language of this opinion. 

Since we are remanding the trial court may consider the 

subject of attorney's fees ane 

We Concur: 

3~d4, &~&..QQ, 

Chief Justice s+$ r