DA 10
- 0459 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 20 11 MT 76
IN THE MATTER OF THE ESTATE OF EVERETT HENRY HICKS, Deceased.

APPEAL FROM: District Court of the First Judicial District,

In and For the County of Broadwater, Cause No. DP 08
- 06 Honorable Dorothy McCarter, Presiding Judge COUNSEL OF RECORD:

For Appellant: David C. Dalthorp, Murry Warhank; Gough, Shanahan, Johnson & Waterman, Helena, Montana For Appellee : Antonia Marra; Marra, Sexe, Evenson & Bell, Great Fall s, Montana
Submitted on Briefs: March 23, 2011 Decided: April 19, 2011 Filed:

__________________________________________ Clerk April 19 20112

Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 The Estate of Ev

erett Hicks, appeals an orde r of the F irst Judicial District Court, Broadwater County, ordering the Estate to pay all outstanding child support without any offset for Social S ecurity death benefitsreceived by Hicks’ minor children . We affirm. ISSUE ¶2 The only issue on appeal is whether the District Court correctly concluded thatthe terms of the amended parenting plan prevented the Estate from receiving a credit towards the Estate’schild support obligation. BACKGROUND ¶3 Hicks died in December 2007. At that time, he was div orced from his first wife, Melissa Thompson. During their marital d issolution, the pair entered intoap arenting plan regarding

their two m inor

children. I

n May of 2005, thatplan was amended and at the time of Hicks’ death provided, in pertinent part: Father shal l pay Mother $550 per month per child as and for child support. Father’s support obligation shall continue until each child graduates from high school or turn snineteen (19) yearsof age, whichever is earlier. . . . In the event of the death of Father be fore both children graduate from high school or become emancipated, Father ’ s support obligation continues through that time in the same manner as if he had survived, and Father shall ma ke provision for payment of such child support either by means of provi sion in Father’s estate for a trust for both children or through life insurance, or both, as discussed below.

. . . In other words, Father’s estate will pay the sum of $550 per child during the entire time that Father’s child support obligatio n would have continued if he had surv

ived. F ather agrees that this document should be deemed to3

have been executed with all of the formalities required for a will and that it is the Father’s testamentary intent to make the above

- described provision for hi s children as part of his estate planning.

. . . This Amended Parenting Plan shall be made an integral part of the Court’s order and file and shall be enforceable by any method provided by law or equity. This Amended Parenting Plan shall be binding upon the parties, their personal representatives, heirs and assigns. ¶4 Hicks nev

er purchased any insurance or created any trust to specifically p rovide for payment of child support , in the event of his death

. After Hicksd ied , the Social Security Adm

inistration began paying Social Security death benefits to Hicks’ minor children. Each child receiveda monthly payment of $252

. ¶5 Following Hicks’ death, t he Estate made the monthly child support payments through May 2008 , and then ceased. On September 9 , 2008, Thompson made a creditor’s claim againstthe Estate for payment of outstanding child support pursuant to the terms of the amended parenting plan. The Estate conceded its duty to p ay but disputed the amount. It argued that the minor children were r eceiving S oc ial Security death benefits, and those benefits should be credited against theEstate’s child support obligation. ¶6 On February 17 , 2009, the District Court rejected the Estate’s contentions

. The District Court concluded that the “language of th e child support agreement does not allow for the estate to recei ve a credit ag ainst any Social Security d eath benefits which the minor children might receive.” The Estate was ordered to pay all outstanding child support, plus interest. The Estate appeale d, arguing that the District Court erred by4

denying it a cre dit ag

ainst the Social S ecurity death benefits received by Hicks’ m inor children. STANDARD OF REVIEW ¶7 We rev

iew a district court’s legal conclusions to determine if they are correct. Tacke v. Ener

gy West Inc. , 2010 MT 39, ¶ 25, 355 Mont. 243, 227 P.3d 601.

DISCUSSION ¶8 The Estate asserts two reasons why the Social S ecurity death benefits received by Hicks’ m inor children should serve as a credit against the child support obligation

. First, the Estat e argues that this Court should analogize Social Security death benefits to Social Security disability benefits and provide for an offset in child support payments

. Second , the Estate argues the District Court’s interpretation of the amended parenting plan was
erroneous. We addresseach in turn. ¶9 First, the Estate invites the Court to hold that Social Security deathbenefitsshould be treated analogously to Social Security disability benefits. A p arent may receive a credit towards that parent’ssupport ob ligation when his or her m inor c hildren receive Social S ecurity benefits due to th e p arent’s disability. In re Marriage of Durbin , 251 Mont. 51, 54, 58, 823 P.2d 243 (1991); In re Marriage of Cowan , 279 Mont. 491, 501, 928 P.2d 214, 220
- 21 (1996). Thomps on urg es the Court to distinguish Social Security disability benefits from Social Security death benefits. We decline to resolve this issue bec ause it is irrelevant to the case at hand

. This case is controlled by the explicit language of the amended pare nting plan , and we express no opinion regarding the merits of the Estate’s first argument.5

¶10 Turning to the Estate’s second argument, we conclude that the District Court did not err when it concludedthat the amended parenting plan obligated the Estate to pay $550 per child in monthly child support regardless of any S ocial Security benefits received by the children. Separation agreements are enforced and interpreted under contract law. In re Marriage of Mease , 2004 MT 59, ¶ 57, 320 Mont. 229, 92 P.3d 1148; Quinn v. Quinn , 191 Mont. 133, 622 P.2d 230 (1981); § 40
- 4
-201(5), MCA. Parenting plans are contained within separation agreements and receive the same contractual enforcement . Section 40

- 4
-201 (1) , MCA. Thus, if thelang uag e of the parenting plan is cle ar, i.e. unambiguous, it controls the agreement’s interpretation. In re Marriage of Rolf , 2000 MT 361, ¶ 25, 303 Mont. 349, 16 P.3d 345. Ambiguity does not exist merely because the parties assert competing interpretations. In re Estate of Burrell, 2010 MT 280, ¶ 25, 358 Mont. 460 , 245 P.3d 1106. “ Rather, ambiguity exists where the language of the contract, as a whole, is reasonably subject to different interpretations.” Estate of Burrell , ¶ 25. ¶11 Both parties ag

ree that the parenting plan is unambiguous but put forth opposing interpretations. The Estate argues that the use of the term “ support obligation” means that the child support payments can be satisfiedf rom sources other than the Estate. Thompson argues that the explicit terms of the agreement ma ke the Estate liable for $ 550 per child, per month, without regard to any other source o f payment to the m inor children. We agree with Thompson and conclude that the Estate’s interpretation is unreasonable.6

¶12 The parties enter ed into a contractual agreementw hich binds the Estate to pay child support, thereby contracting around any potential offset or credit from outside payment sources. U

nder t he explicit language of the amended parenting plan , H icks assumeda$ 550 per child mont hly support payment. The subsequent language made clear that in the event of Hicks’ death , the Estate assumed the obligation to pay child support
. This obligation is set forth without reference to any potential offset from an outside payment source. The fact that the plan provide d for a trust or life insurance to be the v ehicle for payment lends no supportto the Estate ’s con t ention that the agreement contemplated payment from other sources

. Had Hicks actually purchased life insurance
or created a trust, payment to the minor chil drenwouldstill h ave originatedf rom the Estate. Furthermore, the Estate’s cites to Durbin , Cowan , and In re Marriage of Wi lliams , 220 Mont. 232 714 P.2d 548 (1986),are distinguishable

. Those cases did not involve parenting plans with explicit terms go verning thechild support obligations

. ¶13 Moreover, in the event that the Estate’s obligationwas not clear enough, the parties reiterated, “[i]n other words, Father’s estate will pay the sum of $550 per child during the entire time that Father’s child support obligation would have continued if he had survived.” Nothing in thisl anguage contemplates an offset or credit for any payments made to the minor children by anoutside source . Rather, this language explicitly contractsaround any offset or credit thatmight have otherwise applied. ¶14 The District Court correctly concluded that the amended parenting plan precluded the Estate from receiving a credit ag ainst the Social S ecurity death benefits received by Hicks’ minor children.7

¶15 Affirmed. /S/ MIKE McGRATH
We concur: /S/ BETH BAKER /S/ JAMES C. NELSON /S/ PATRICIA COTTER /S/ JIM RICE