NO. 95-348 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

IN RE MARRIAGE OF 

LINDA G. HECKLER PERKINS, 

Petitioner and Appellant, 

and 

LEE DAVID HECKLER, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Thomas M. McKittrick, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Barbara E. Bell, Bell & Marra, 

Great Falls, Montana 

For Respondent: 

Robert F. James, James, Gray & McCafferty, 

Great Falls, Montana 

Submitted on Briefs: November 30, 1995 

Decided: December 14, 1995 

Filed: 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

Lee David Heckler filed a motion in the District Court for the 

Eighth Judicial District in Cascade County in which he requested 

the court to hold his former wife, Linda Perkins, in contempt for 

violating the couple's 1980 settlement agreement by failing to pay 

her share of the college education expenses of their children. 

After a hearing, the court granted David's motion and entered 

judgment for the amount due from Linda. After additional hearings 

and judgments for college expenses, the court entered an order 

which required that Linda execute an assignment of her wages to 

satisfy David's judgment against her. When Linda refused to assign 

her wages, the court ordered that her employer withhold the amount 

of $175 per pay period and pay, that amount directly to David. 

Linda appeals from the District Court's assignment of wages. We 

reverse the order of the District Court. 

The issue on appeal is whether the District Court abused its 

discretion when it ordered an assignment of Linda's wages pursuant 

to 5 40-4-207, MCA. 

FACTUAL BACKGROUND 

Linda and David's marriage was dissolved by decree of 

dissolution filed on October 30, 1980. The decree incorporated the 

parties' property settlement agreement which provided that the 

parties' two children would live with David and that I' [s] o long as 

the children reside with husband, husband will be fully responsible 

for the support and maintenance of the minor children . . . .I1 The 

parties also agreed that $11,600 would be set aside in an interest 
bearing deposit for the college expenses of their children and that 

David and Linda would "share equally in the cost, including 

tuition, books, and room and board, of a college education for each 

of the children to the extent that the educational fund proves to 

be insufficient for that purpose." 

The decree included the following provision regarding child 

support : 

LEE DAVID HECKLER shall be responsible for the support of 

the minor children so long as they reside with him and he 

shall also be responsible for all medical and medically 

related expenses incurred by or on behalf of the minor 

children. No other or further award of support for the 

minor children shall be made at this time. . . . The 

Court further orders the parties to perform all 

covenants, conditions, and obligations set forth in their 

said agreement as the same respect the care and support 

of the minor children. 

(Emphasis added. ) 

The parties' children are now 25 and 23 years of age and have 

attended college. The daughter attended from 1988 until she 

graduated in 1993 and the son, presently a senior in college, began 

college in 1991. Both were over the age of 18 at the time they 

began attending college. The education fund, which had a balance 

of $32,330 in 1986, was depleted during the 1991-1992 school year 

and David has paid the remainder of the education expenses without 

the help of Linda. After repeated unsuccessful efforts to enforce 

Linda's contractual obligation, David sought, and the court 

entered, the assignment order which is the subject of this appeal. 

DISCUSSION 

Did the District Court abuse its discretion when it ordered an 

assignment of Linda's wages pursuant to § 40-4-207, MCA? 
A district court's order to assign wages is a discretionary 

act. In re Marriage of Benner (1985) , 219 Mont. 188, 192-93, 711 P.2d 

802, 805; see 5 40-4-207, MCA. We review discretionary acts to 

determine if the court abused its discretion. Mayv. FirstNat'l Pawn 

Brokers (l995), 270 Mont. 132, 134, 890 P.2d 386, 388. 

The District Court ordered Linda's employer to withhold part 

of her wages and pay them directly to David pursuant to 5 40-4-207, 

MCA. That section provides that a "court may order the person 

obligated to pay support or maintenance to make an assignment of a 

part of his periodic earnings . . . to the person entitled to 

receive payment." Section 40-4-207, MCA, therefore, allows the 

trial court to order a wage assignment for child support purposes, 

but an obligation to pay child support is a prerequisite to such an 

assignment order. See In re Benner, 711 P. 2d at 805. 

In this case, David agreed in the 1980 property settlement 

agreement that he would be "fully responsible for the support and 

maintenance of the minor children . . . . " Furthermore, the 

court's decree provided that David was responsible for all child 

support. Accordingly, Linda was never obligated by either the 

agreement or the court's decree to pay any child support, and there 

was no support obligation to enforce pursuant to 5 40-4-207, MCA. 

Furthermore, in Montana, a parent's obligation for support 

automatically terminates at the age of majority, unless there has 

been some voluntary agreement that support by one or both parents 

will continue beyond majority. InreMarriageofHurley (1986), 222 Mont. 

287, 298-99, 721 P.2d 1279, 1287 (citing In reMarriageofBordner (1986) , 
220 Mont. 339, 343, 715 P.2d 436, 438; InreMarriageofHerrig (1982) , 199 

Mont. 174, 187, 648 P.2d 758, 765). Here, there could be no 

agreement to extend an obligation for Linda to pay support beyond 

majority because Linda had no obligation in the first place. 

Therefore, while David's and the District Court's frustration 

is understandable, Linda's agreement to pay college expenses 

created nothing more than a contractual obligation which is 

enforceable in the same manner as all other contractual 

obligations. It may be reduced to judgment, as has been done in 

this case, and executed upon subject to the provisions of 

5s 25-13-201 to -405, MCA. However, enforcement provisions which, 

by their terms, are specifically limited to obligations for child 

support and maintenance are not available. 

Therefore, we conclude that the District Court abused its 

discretion when it ordered an assignment of Linda's wages pursuant 

to 5 40-4-207, MCA. We reverse the District Court's order and 

order the wage assignment pursuant to 5 40-4-207, MCA, to be 

withdrawn. 

we concur: / 

prepaid, to the