No. 90-567 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

19 9 1 

IN RE THE MARRIAGE OF 

CAROLYN L. (CRITTENDON) HOOPER, 

Petitioner and Respondent, 

and 

GARY D. CRITTENDON, 

Respondent and Appellant. 

CLERK OF SUPREME COURT 

STATE Or" Lli)l#'r~p~~ 

APPEAL FROM: District Court of the Second Judicial District, 

In and for the County of Silver Bow, 

The Honorable Mark P. Sullivan, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

C. Kathleen McBride; Johnson, Skakles & Kebe, Butte, 

Montana 

For Respondent: 

Brad Belke, Attorney at Law, Butte, Montana 

Submitted on Briefs: January 24, 1991 

Decided: February 26, 1991 

Filed: 
Justice John Conway Harrison delivered the Opinion of the Court. 

Gary Crittendon appeals a September 24, 1990, decision of the 

District Court of the Second Judicial District, Silver Bow County, 

awarding Carolyn Crittendon Hooper $23,250 in child support 

arrearages. We affirm in part and remand in part. 

Crittendon presents two issues: 

1. Did the District Court err in failing to exercise its 

equitable powers to estop the collection of past due child support? 

2. Did the District Court err in calculating past due child 

support payments by failing to limit the judgment to a period of 

ten years? 

After nearly seven years of marriage, Gary Crittendon and 

Carolyn Crittendon Hooper were divorced on February 7, 1973. 

Custody of the two minor children, ages six and one, was awarded 

to Hooper, and Crittendon was required to pay $150 per month in 

child support. The children are now 24 and 19 years of age. 

Since the date of the dissolution, Crittendon had paid a total 

of approximately $1,800 in child support. District Court records 

show that Hooper made attempts in 1973 and 1975 to collect past due 

child support payments. In addition, Hooper testified that she 

contacted the Department of Social and Rehabilitation Services in 

August 1977 and the Child Support Enforcement Division in 1987 

concerning collection of back child support. Hooper stated that 

because of lack of funds she was unable to further pursue 

collection of child support arrearages. 
Crittendon testified that in a contempt proceeding in 1973, 

the District Court reduced the monthly support payments to $80 per 

month. A record of the court's order reducing payments could not 

be found. 

After the divorce, Crittendon lost contact with the children. 

In the late 1970's the children's surname was changed to "Hooper." 

Crittendon claimed that he abided by Hooper's wishes in staying 

away from the children, impliedly in exchange for non-payment of 

child support. 

Did the District Court err in failing to exercise its 

equitable powers to estop the collection of past due child support? 

Crittendon contends that an equitable exception to the rule 

concerning modification of child support payments applies in his 

case. 

Ordinarily, the amount of child support payments may only be 

modified prospectively. Section 40-4-208(1), MCA. However, when 

the parties mutually agree to modify child support payments and 

the agreement is observed over a period of years, in an action for 

support arrearages the trial court may, in exceptional 

circumstances, refuse to award the original amount mandated in the 

dissolution decree or child support order. In re Marriage of 

Guckeen (1989), 240 Mont. 136, 782 P.2d 1284; State ex rel. 

Blakeslee v. Horton (1986), 222 Mont. 351, 722 P.2d 1148. The 

theory underlying this exception is that the party bringing the 

action is equitably estopped from denying the mutual agreement upon 
which the other party relied. See In re Marriage of Jensen (1986), 

223 Mont. 434, 439, 727 P.2d 512, 515. 

The requirements for applying this equitable exception to the 

rule that child support payments may not be modified retroactively 

are (1) substantial and continuing change in circumstances 

rendering enforcement of the original decree of child support 

inequitable; (2) mutual agreement between the parties made in good 

faith; and (3) conduct over a period of years consistent with the 

agreement. Jensen, 223 Mont. at 438-40, 727 P.2d at 515-16. These 

elements must be shown by clear and convincing evidence and only 

apply to payments due subsequent to the mutual agreement. Jensen, 

223 Mont. at 439, 727 P.2d at 515-16. Furthermore, child support 

modification by the parents must not impair the rights of any 

assignee of support payments. Jensen, 223 Mont. at 440, 727 P.2d 

The record does not support crittendonls contention that the 

parties impliedly agreed to modification of the support provisions 

of the dissolution decree. Crittendon testified as follows: 

CRITTENDONIS COUNSEL: So, do I understand that since 

approximately sometime in 1974 that you and your wife or 

ex-wife have had some sort of an understanding that you 

wouldn't try to visit the children and that she would not 

seek child support? 

CRITTENDON: I donlt know her feelings on this, I know 

that mine were based on that implied impression, that if 

I stayed away everything would be okay. 

Crittendon's testimony does not reveal a mutual agreement and was 

contradicted by Hooperls testimony that Crittendon could have 

requested visitation at any time. We hold that the District Court 
did not err in refusing to apply the equitable estoppel exception 

to retroactive modification of child support payments. 

I1 

The second issue is whether the District Court erred in 

failing to apply the ten-year statute of limitations applicable to 

judgments . 

Crittendon maintains that either the six-year statute of 

limitations applicable to execution of judgments or the ten-year 

limitations period for actions on a judgment or decree should limit 

the amount of his past due support obligation. See 55 25-13-101 

and 27-2-201(1), MCA. Hooper responds that any limitations period 

should not commence until the youngest child becomes emancipated. 

This is a case of first impression in Montana, although this 

Court has ruled that the doctrine of laches cannot serve as a 

defense to collection of child support arrearages. Fitzgerald v. 

Fitzgerald (1980), 190 Mont. 66, 618 P. 2d 867. The rationale in 

Fitzqerald was that the parent owed a duty to the child, as well 

as to the state, to support the child and that the parent's support 

obligation could be enforced at any time during the child's 

minority. Fitzqerald, 190 Mont. at 69-71; 618 P.2d at 868-869. 

In some jurisdictions the limitations period does not begin 

to run until the arrearages have been reduced to a lump sum payment 

or until the youngest child is emancipated. See Harvey v. McGuire 

(Ky. App. 1982), 635 S.W.2d 8 (fifteen-year limitations period not 

triggered until delinquency reduced to final judgment or until 

emancipation of child); Wilson v. Wilson (Miss. 1985), 464 So.2d 
496; Wall v. Wall (Wis. App. 1987), 410 N.W.2d 593. 

In Wilson the court held thatMississippils seven-year statute 

of limitations does not start to accrue until the youngest child 

reaches majority because the cause of action belongs to the child, 

not the parent. The court cited parents1 legal and moral 

obligation to support their children. Wilson, 464 So. 2d at 498- 

99. 

The Wisconsin rule that the statute of limitations does not 

begin to run until the child reaches majority is "based on the 

potential for a child support order to be revised upon a showing 

of changed circumstances anytime before the child attains 

majority.I1 Wall, 410 N.W.2d at 595. 

In a small minority of jurisdictions, no limitations period 

applies to child support decrees. See, e. g. , Finnern v. Bruner 

(Neb. 1958), 92 N.W.2d 785. 

In a majority of jurisdictions the statute of limitations 

applicable to judgments will bar enforcement of delinquent child 

support obligations which fall outside the statutory limit. 2 H. 

Clark, Jr., The Law of Domestic Relations, 394-95 (1987) ; see Young 

v. Williams (Alaska 1978), 583 P.2d 201 (ten-year statute) ; Corbett 

v. Corbett (Ariz. App. 1977), 569 P.2d 292 (five-year statute); In 

re Marriage of Utigard (Cal. App. 3 Dist. 1981), 178 Cal. Rptr. 

546 (ten-year statute) ; In re Marriage of Aragon (Colo. App. 1989), 

773 P.2d 1110 (twenty-year statute); Mayo v. Mayo (D.C. App. 1986), 

508 A. 2d 114 (twelve-year statute) ; Lindsey v. Lindsey (Hawaii App. 

1986) , 716 P. 2d 496 (ten-year statute) ; Dunn v. Dupre (Idaho 1966) , 
420 P.2d 8; Riney v. Riney (Kan. 1970), 473 P.2d 77 (five-year 

statute) ; Evertsen v. Jenssen (La. App. 5 Cir. 1989), 552 So.2d 

1277, rev. denied 556 So.2d 1283 (1990) (five-year statute 

specifically applying to child support obligations); Miller v. 

Miller (Md. App. 1987) , 519 A. 2d 1298 (twelve-year statute) ; 

Rybinski v. Rybinski (Mich. 1952), 53 N.W.2d 386 (ten-year 

statute) ; Bednarek v. Bednarek (Minn. App. 1988), 430 N.W.2d 9 

(ten-year statute specifying child support payments); Wimmer v. 

Wimmer (Mo. App. 1985), 690 S.W.2d 475 (ten-year statute revised 

to specifically apply to child support payments); ~ritton v. 

Britton (N.M. 1983) , 671 P. 2d 1135 (fourteen-year statute) ; Ames 

v. Ames (Or. App. 1982), 652 P.2d 1280 (ten-year statute) ; Smith 

v. Smith (Tex. App. 1982), 643 S.W.2d 523 (ten-year statute); 

Seeley v. Park (Utah 1975), 532 P.2d 684 (eight-year statute); 

Matter of Marriage of Ulm (Wash. App. 1 ~ist. 1984), 693 P.2d 181 

(ten-year statute) . 

These courts reason that since each child support payment 

becomes a separate, final judgment as of its date of accrual, the 

statute of limitations pertaining to final judgments applies. See, 

e.g., Araqon, 773 P.2d at 1111-12; Lindsey, 716 P.2d at 499. The 

Montana Supreme Court has stated that each child support payment 

I1becomes a judgment debt similar to any other judgment for money.I1 

In re Marriage of Sabo (1986), 224 Mont. 252, 254, 730 P.2d 1112, 

1113. Thus, the ten-year statute of limitations for actions upon 

court judgments or decrees, § 27-2-201 (1) , MCA, applies to actions 

by one parent against the other for child support arrearages. The 
District Court, under the facts of this case, should have limited 

awarded arrearages to payments due within the ten-year period prior 

to initiation of the suit. 

The award of child support arrearages is remanded to the 

District Court for entry of judgment consistent with this opinion. 

The judgment of the District Court refusing to estop collection of 

past due support is affirmed. 

We concur: