NO. 90-001 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

IN RE THE MARRIAGE OF 

LITA F. BRONZYNSKI, 

Petitioner and Respondent, 

and 

ROBERT ALAN HAGAN, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Four.th ~udicial District, 

In and for the County of Missoula, 

The Honorable Douglas G. Harkin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Morgan Modine, Attorney at Law, Missoula, Montana 

For Respondent: 

Robert L. Deschamps, 111, County Attorney, Missoula, 

Montana 

Barbara C. Harris, Deputy County Attorney, Missoula, 

Montana 

Submitted on ~riefs: August 23, 1990 

Decided: October 2, 1990 

Filed: 
b, 

Justice Diane G. Barz delivered the opinion of the Court. 

This appeal stems from an action to collect back child 

support. Lita Bronzynski (Lita) filed a URESA action in Missoula 

County District Court to collect child support due from her exhusband, Robert Alan Hagan (Robert). After a hearing on the 

matter, the District Court concluded that petitioner Bronzynski 

was entitled to judgment and ordered respondent Hagan to pay back 

child support in the amount of $16,775 but did not find Hagan in 

contempt of court. Hagan appeals the lower court's judgment. We 

affirm. 

One issue is presented for review: 

Did the District Court properly enter judgment in favor 

of Lita Bronzynski for child support? 

Lita and Robert were married in 1972. Two sons were born of 

the marriage. In December 1981, the Missoula County District Court 

granted Lita and Robert a divorce. Lita married Leroy Bronzynski 

(Leroy) in April 1982. Shortly after her re-marriage, Lita moved 

to Nebraska with Leroy and her two sons from her marriage to 

Robert. Lita informed Robert and his parents that she and the boys 

would be moving to OtNeill, Nebraska but she did not know the exact 

address in OINeill. Once Lita got a permanent address in OINeill 

she notified the Montana court. Robert's parents also knew of her 

address in OINeill and sent presents to their grandsons and visited 

the family in OtNeill. Her present address and phone number have 

remained the same since late 1982. Robert and his new wife, 

Carolyn, also testified they sent the boys Christmas gifts in 1986 

and 1987 which were included in packages Robert's mother mailed to 
b ' . Nebraska. 

According to their dissolution decree, Robert was to have paid 

$125 per month per child in support payments. Lita was awarded 

custody of the children, with visitation by Robert specifically set 

out if mutual agreement could not be reached. Robert consistently 

made payments until Lita and the boys moved to Nebraska. After 

April 28, 1982, Robert made only one $50 payment in July 1983. 

Robert made few attempts to contact his sons. Through his 

attorney he did write to Lita stating he was upset about having to 

pay child support but not being able to see his children due to the 

move to Nebraska. The letter suggested summer visitation different 

from that set out in the dissolution order and requested Lita to 

pay one-half the transportation costs. The letter then stated that 

if Lita did not agree to the proposed terms of the visitation she 

should retain an attorney because Robert intended to file an action 

to modify the decree. Robert never followed up on the visitation 

nor did he call or visit the children after they left Montana. 

Lita attempted at various times to enforce the decree and 

collect the child support due and owing. In June 1982, pursuant 

to Nebraska's Uniform Reciprocal Enforcement of Support Act 

(URESA), Lita filed a complaint and affidavit regarding nonpayment 

of support by Robert. The documents were certified by a Nebraska 

judge and sent to Missoula District Court. Lita also maintained 

contact with the Missoula .County Attorney's office, making phone 

calls and personal contact. During a June 1984 conversation with 

a Missoula deputy county attorney about Robert being unemployed and 

the county therefore being unable to collect child support, there 
a, * 

was discussion regarding Leroy adopting the boys. 

In August 1988, Leroy Bronzynski petitioned to adopt the boys. 

When Robert was notified of Leroy's pending adoption of the two 

boys, Robert did call the Bronzynskisl lawyer and stated that he 

objected to the adoption, but Robert did nothing in writing. The 

adoption of the boys was completed in October 1988. 

On June 15, 1989, the Missoula County Attorney's Office, on 

behalf of Lita Bronzynski, filed a Petition for Order to Show Cause 

alleging Robert Hagan's failure to pay child support. A hearing 

was held on August 21, 1989. When questioned about his 

understanding regarding support and visitation, Robert testified 

there was no verbal agreement between Lita and him. Robert stated 

he did not pay child support because of an understanding they had 

based on "instinct1' arising out of the marriage. But Robert did 

admit knowing that his support obligation was independent of his 

visitation rights and stated that he wanted to exercise visitation. 

At the conclusion of the hearing the court ruled in favor of 

Lita. Having viewed the case in light of State ex rel. Blakeslee 

v. Horton (1986) , 222 Mont. 351, 722 P. 2d 1148, the court concluded 

that the facts in the present case were different from those in 

Blakeslee in that there was no agreement of any kind between Lita 

and Robert that she would not seek support if he would not exercise 

visitation. Therefore, the court found, the mandates of Blakeslee 

did not apply to the situation and Robert was not relieved of his 

obligation to pay child support under the equitable exception 

carried out in Blakeslee. The District Court ordered Robert to pay 

$16,775, the amount of back child support due prior to the time 
a 

Leroy adopted the children. 

It is from this judgment that Robert now appeals. 

On review this Court presumes the correctness of a district 

court judgment and will reverse such judgment only on a finding of 

clear abuse of discretion. In re Marriage of Jensen (1986), 223 

Mont. 434, 438, 727 P.2d 512, 515. A reversal would be appropriate 

only if the district court "acted arbitrarily without employment 

of conscientious judgment or exceeded the bounds of reason 

resulting in substantial injustice. l1 Jensen at 438, 727 P. 2d at 

515 (citing In re Marriage of Perry (1985), 217 Mont. 162, 166, 704 

P.2d 41, 43). 

On appeal Robert contends that the District Court should have 

exercised its equitable power to relieve him of the obligation to 

pay child support because the parties to the seven-year-old 

dissolution decree impliedly and explicitly agreed to alter its 

terms. Robert argues that the agreement to alter the decree is 

found in the fact that for the last seven years, in return for 

forgoing any child support, Lita has denied Robert, as the natural 

father, any contact with the children. Robert further asserts that 

only after terminating his parental rights through the adoption of 

the children by her husband of the last seven years did Lita seek 

collection of back child support. Robert argues, because the 

original decree has been altered to reflect the parties1 agreement, 

the mandates of Blakeslee should apply and Lita is equitably 

estopped from claiming child support. 

Robert makes extensive arguments in an attempt to analogize 

Blakeslee to the present case. In Blakeslee the parties arrived 
at a mutual agreement where each stayed away from the other. After 

fourteen years of the mother not seeking payment of child support 

and the father not seeking visitation, the mother filed a petition 

alleging the child support provided for in the dissolution decree 

was due. The father did not know the whereabouts of the mother or 

the child and never made a child support payment. The mother never 

made any inquiry regarding child support payments. While noting 

that child support payment cannot be modified retroactively (5 40- 

4-208, MCA) and that child support and visitation are separate 

incidents with neither being dependent or conditional on the other 

(5 40-5-124, MCA) , the court found the mother was equitably 

estopped from pursuing back child support. To give the mother back 

child support after fourteen years of acquiescing to the implied 

alteration of the decree would amount to a windfall for the mother. 

Such result, this Court held, would be inequitable. 

This case differs significantly from Blakeslee. Here, the 

father had made support payments initially. Here, the father knew 

where the children were. Here, the father's attorney wrote a 

letter requesting visitation and attempted to condition his payment 

of child support on his visitation of the boys and subsequently 

made a $50 support payment. Here, the mother started seeking 

support in 1982 and continued to seek child support. Here, there 

is no evidence of a mutual arrangement like that in Blakeslee-- 

Lita did not consent, impliedly or explicitly, to an arrangement 

other than payment of the child support. 

The trial court obviously recognized the import of Blakeslee 

to this situation. ~istrict Judge Harkin discussed its relevance 
at length and concluded Blakeslee does not apply. 

We agree with the District Court's conclusion. Blakeslee does 

not apply in this case. Contrary to Robert's assertions that Lita 

now wants a windfall for herself and only sought child support 

after the adoption, Lita did seek child support before Leroy 

adopted the boys. Lita had been in contact with the Missoula 

County Attorney's Office since 1982. Lita discussed the 

possibility of adoption in a 1984 conversation with a Missoula 

deputy county attorney, but no adoption proceedings were begun 

until 1988. Robert's contention that Lita was lying in wait to 

secure an adoption and then proceed against him for back support 

are not supported by the facts. 

We affirm. 

We concur: