NO. 93-344 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

IN RE THE MARRIAGE OF 

JODY BROWN, 

Petitioner and Respondent, 

and 

STEPHEN BROWN, 

Respondent and Appellant. 

JAN 13 1994 

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: 

Curtis G. Thompson and Patrick R. Watt, Jardine, 

Stephenson, Blewett & Weaver, Great Falls, Montana 

For Respondent: 

Antonia P. Marra, Bell & Marra, Great Falls, Montana 

Filed: 

Submitted on Briefs: November 18, 1993 

~~~id~d: January 13, 1994 
Justice James C. Nelson delivered the Opinion of the Court. 

This is an appeal from an order of the Eighth Judicial 

District Court, Cascade County, in a dissolution action. We 

affirm. 

We restate the issues on appeal as follows: 

1. Did Jodyls URESA action modify the underlying order for 

child support? 

2. Were Jodyls claims for child support obligations accruing 

more than ten years before the filing date of her Motion for 

Enforcement of the Divorce Decree and Order to Show Cause timebarred by § 27-2-201, MCA? 

3. Did the District Court err when it computed Stephen's past 

and current child support obligations? 

The petitioner, Jody Brown (Jody) and the respondent Stephen 

Brown (Stephen) were married in Helena, Montana on April 22, 1972. 

The marriage was dissolved on July 23, 1979, Jody was given custody 

of the three minor children and Stephen was granted reasonable 

visitation and was ordered to pay $125 per child per month for 

child support. 

Jody encountered problems obtaining her child support payments 

from Stephen. In the fall of 1979, Stephen was ordered to show 

cause for noncompliance with the dissolution decree and was ordered 

to pay child support. Stephen still did not fulfill his child 

support obligations, and in March of 1982, Jody brought an action 

against Stephen under the Revised Uniform Reciprocal Enforcement of 

Support Act (1968), §§ 40-5-101, MCA, et seq., (URESA) to obtain 

2 
the child support monies to which she was entitled. 

As a result of her bringing that action, Jody and Stephen 

executed a written stipulation stating that Stephen was in arrears 

in his child support payments in the amount of $16,425.00 through 

July 1982, and pursuant to which he agreed to pay $60 per week for 

child support, those payments to continue until further order of 

the court. 

The Stipulation was dated "- day of August, 1982" and was 

signed by both parties. On September 3, 1982, the District Judge 

signed an Order (which immediately followed the parties signatures 

on the same page). That Order ". . . entered [the stipulation] as an 

Order of the Court ...," enforceable by contempt, and, along with 

the Stipulation, was filed with the Clerk of Court on that same 

date. 

On June 3, 1992, venue of the case was transferred from Lewis 

and Clark County to Cascade County. On June 19, 1992, still unable 

to collect her child support, Jody filed a Motion for Enforcement 

of the Dissolution Decree and for an Order to Show Cause why the 

decree should not be enforced. 

In its February 26, 1993, Memorandum and Order, the District 

Court concluded that the Stipulation and Order of September 3, 

1982, did not modify the original dissolution decree and that the 

statute of limitations did not bar Jody from recovering child 

support due prior to August 1982. The court calculated the back 

child support owed at $58,800.00 and ordered Stephen to pay child 

support in the amount of $125 per child per month as ordered in the 
original decree. The court allowed Stephen credits amounting to 

$8,031.65, leaving a balance of $50,768.35. Stephen appeals from 

this order. 

The standard of review of the trial court's findings relating 

to child support is that a presumption exists in favor of the trial 

court, and we will not overturn its findings unless the court has 

abused its discretion. In re Marriage of Nikolaisen (1993), 257 

Mont. 1, 8, 847 P.2d 287, 291. Our standard of review of the trial 

court's conclusions of law on such matters is whether its 

conclusions are correct. Burris v. Burris (1993), Mont. 

852 P.2d 616, 619. 

I. MODIFICATION OF ORIGINAL DISSOLUTION DECREE 

Stephen contends that the trial court erred when it ruled that 

the stipulation did not modify the underlying child support 

obligation established in the decree of dissolution. Jody states 

that URESA is an enforcement procedure and does not modify the 

underlying judgment unless so stated. We agree with Jody's 

analysis of this issue. 

Our decision in In re Marriage of Petranek (1992), 255 Mont. 

458, 843 P.2d 784, is dispositive. In that case, noting that URESA 

was adopted to "...provide an auxiliary or supplemental remedy for 

the enforcement of support orders...", we stated: 

While a court in a URESA proceeding looks to the ability 

of the obligor to pay at the time of the enforcement 

proceeding, the authority of the court originally 

ordering payment in (sic) not affected. Nor is its order 

modified by an order of a court fixing another or 

different sum pursuant to the URESA action. ... 

. . . URESA support orders which do not reference prior 
support awards do not modify them. Furthermore, under 

Montana law, we have clearly stated that child support 

modification and URESA actions do not merge. A request 

for modification of a divorce decree is separate and 

distinct from an action arising under URESA. 

Petranek, 843 P.2d at 786. (Citations omitted.) 

In the instant case, the 1982 Stipulation provides in 

pertinent part that: 

IV. 

This Stipulation does not act as a waiver of any legal 

arrearages, totalling $16,425.00 through July 1982, only 

as an agreement, that at present, URESA enforcement shall 

only be obtained on the agreed amount set forth above 

[$60 per week]. 

The 1982 Stipulation and Order does not reference the 

underlying child support award nor did either party file a motion 

to modify the underlying dissolution decree. There is absolutely 

nothing in the Stipulation or court Order modifying the original 

child support order. The Stipulation and Order deal only with 

enforcement of the support obligation contained in the original 

decree of dissolution. We hold that the District Court correctly 

concluded that the original dissolution decree which required 

Stephen to pay $125 per child per month remained valid and was not 

modified by the 1982 Stipulation and Order. 

11. STATUTE OF LIMITATIONS 

Stephen argues that the District Court erroneously determined 

that the 1982 Stipulation tolled the 10 year statute of limitations 

applicable to the enforcement of past due child support 

obligations. He claims the court also erred by concluding that 

periodic payments by Stephen revived the statute each time a 
payment was made. Jody counters that the arrearages from prior to 

August 1982 are within the statute of limitations because the URESA 

action of 1982, accompanying Stipulation and subsequent periodic 

support payments tolled the statute of limitations, and that, 

therefore, Stephen owes all arrearages, including those due prior 

to August of 1982. We conclude that the District Court's decision 

was correct and affirm, although, not for the reasons expressed in 

the court's Memorandum and Order. Wolfe v. Webb (1992), 251 Mont. 

217, 234, 824 P.2d 240, 250. 

In Marriage of Hooper (Crittendon) (1991) , 247 Mont. 322, 327, 

806 P.2d 541, 544, we referred to the majority rule that "each 

child support payment becomes a separate, final judgment as of its 

date of accrual, [and that] the statute of limitations pertaining 

to final judgments applies," and quoted In re Marriage of Sabo 

(1986), 224 Mont. 252, 254, 730 P.2d 1112, 1113, for the rule that 

each child support payment "becomes a judgment debt similar to any 

other judgment for money. " . 

The statute of limitations for the commencement of an action 

on a judgment is 5 27-2-201, MCA, and we have held that statute is 

the appropriate statute of limitations for the commencement of 

actions to enforce child support decrees. Hooper, 806 P.2d at 544. 

See also Petranek, 843 P.2d at 787. 

Section 27-2-201(1), MCA, provides that "the period prescribed 

for the commencement of an action upon a judgment or decree of any 

court of record of the United States or of any state within the 

United States is within lo years." 
Therefore, as each child support payment obligation comes due, 

that payment obligation becomes a judgment, and the 10 year statute 

of limitations commences to run on the accrual date of that 

judgment with respect to an action to enforce that judgment. 

In this case, applying the above rules, an action to collect 

child support arrearages (judgments) would be time-barred as to 

payments (judgments) accruing prior to June 19, 1982 -- 10 years 

prior to the date that Jody filed her Motion for Enforcement on 

June 19, 1992. 

Jody, however, claims that the statute of limitations was 

tolled for two reasons. First, Jody claims that the 1982 URESA 

action and subsequent stipulation tolled the statute of 

limitations. Second, she contends that partial payments made on 

child support due also tolled the statute of limitations. The 

~istrict Court based its decision on Jody's second argument, and, 

it appears, also implicitly agreed with her first argument. 

In March 1982, Jody filed a URESA action for enforcement of 

Stephen's support obligations because Stephen would not comply with 

the child support order from the dissolution decree. In August 

1982, in settlement of the URESA action, Jody and Stephen signed a 

stipulation acknowledging that Stephen was in arrears for child 

support in the amount of $16,425.00 through July 1982 and that 

henceforth, he would pay the amount of $60 per week. On September 

3, 1982, the trial court ordered that the Stipulation be entered as 

an order of the court. 

Jody contends that the URESA action was a suit to enforce or 
collect a judgment as contemplated by 5 27-2-201, MCA, and that the 

court's September 3, 1982, Order merged the various original 

monthly judgments into a single new judgment as of that date. Tn 

making that argument Jody cites provisions of the Uniform 

Interstate Family Support Act (UIFSA) , enacted at Ch. 328, L., 

1993, and effective October 1, 1993. While UIFSA replaced URESA, 

with some of the earlier provisions being repealed, Jodyos action 

was brought under the earlier URESA. 

That aside, we do not find it necessary, for purposes of this 

case, to determine whether an action brought under UIFSA or URESA 

is an action to collect a judgment for purposes of renewing the 10 

year statute of limitations because the September 3, 1982, Order 

was not a judgment for the $16,425.00 child support arrearages 

acknowledged by the parties in the Stipulation. The District Court 

simply entered an order to enforce the payment provisions of 

parties Stipulation pursuant to its terms. 

That is not to say, however, that the statute of limitat 

the 

ions 

was not tolled. While the Stipulation and September 3, 1982, Order 

did not modify or affect the underlying judgment of the dissolution 

decree, and while the Order did not create and merge into a single 

new judgment, the various prior unsatisfied judgments under the 

dissolution decree, by their Stipulation, the parties did 

acknowledqe the existence of the unsatisfied iudqments prior to the 

Stipulation. It was that acknowledgement which tolled the statute 

of limitations. 

Dodd v. Simon (l942), 113 Mont. 536, 129 P.2d 224, is 
dispositive on this point. Dodd is factually dissimilar to the 

instant case but the principle drawn from Dodd applies here. The 

acknowledgement of a judgment unsatisfied, made in open court, will 

toll the statute of limitations. In that case we stated: 

The stipulation made on September 20, 1935, likewise had 

the effect of tolling the statute limiting to ten years 

the time of effectiveness of the judgment. It was an 

acknowledgement of the existence of the judgment 

unsatisfied, made in open court, and intended for the 

court to act upon in administering the rights of the 

parties with respect to the matter of possession, and as 

determined by the judgment. (31 Am. Jur., Judgments, 

sec. 398; annotation 21 A. L. R. 1061.) While there is 

divergency of views on the question, the cases holding 

that a statute limiting the time of effectiveness of a 

judgment may be tolled by acknowledgment of the judgment 

seem to establish the majority rule, and which we follow. 

While the cases cited in the annotations above referred 

to deal with judgments for the recovery of money, we can 

see no reason why the rule should not be applied to 

judgments for recovery of possession of real property. 

[Citation omitted.] 

I Dodd 129 P.2d at 228-229. 

That the rule followed in Dodd has remained viable since that 

decision was handed down is, perhaps, best underscored by the 

amendment of 5 27-2-409, MCA, in 1987 to provide, in pertinent part 

that: 

[a]n acknowledgement . . . of a debt is sufficient 

evidence to cause the relevant statute of limitations to 

begin running anew. . . . An acknowledgement must be 

contained in some writing signed by the party charged 

thereby. 

Here, the Stipulation acknowledges that there exist legal 

arrearages totalling $16,425.00 through July of 1982. At no time 

did Stephen ever dispute the pre-August, 1982 arrearages total of 

$16,425.00, and while, as he now argues, he may not have had the 

intent to create or renew the prior judgments for unpaid child 
support, he nevertheless, acknowledged the existence and amount of 

such arrearages (judgments) in writing, in open court for the 

purpose of obtaining the court's blessing on his temporarily paying 

less per month than he was obligated under the dissolution decree. 

Stephen signed this Stipulation and the Stipulation was then 

entered as an order of the court without any qualification on his 

part as to the existence or amount of the arrearages set forth in 

the Stipulation. 

Stephen cannot have it both ways. He cannot, on the one hand, 

stipulate in writing, in open court as to the existence and amount 

of his child support arrearages in order to gain the advantage of 

the Stipulation and Order, and, on the other hand, then deny the 

legal effect of his admissions. Under the circumstances, we 

conclude that the Stipulation was an acknowledgement by Stephen of 

pre-August 1982 child support judgments, unsatisfied, made in open 

court, and, that under the rule expressed in m, that 

acknowledgement served to toll the statute of limitations 

applicable to the enforcement of each unsatisfied monthly child 

support judgment not already time-barred. 

Since the dissolution degree was entered on July 23, 1979, 

none of the unsatisfied monthly child support judgments were yet 

time-barred in 1982, and, accordingly, the 10 year statute of 

limitations commenced to run anew on all such judgments through 

July 1982, on the date Stephen signed the Stipulation and 

acknowledged such unsatisfied judgments in open court. 

Accordingly, Jody's Motion to Enforce the Dissolution Decree, filed 
June 19, 1992, was within the 10 year statute of limitations for 

the commencement of an action to collect or enforce a judgment. 

We, therefore, hold that the District Court was correct in 

including the full amount of Stephen's child support arrearages 

through July 1982, amounting to $16,425.00, in its calculation of 

past due child support. 

Having determined that Jody's enforcement action as to all of 

Stephen's delinquent child support payments was not time-barred and 

that the District Court correctly included all of Stephen's 

unsatisfied child support obligations in its calculation of past 

due support, we do not reach Jody's second argument, or the 

District Court's determination that the statute of limitations was 

tolled by Stephen's partial payments of child support made 

periodically to Jody. 

111. STEPHEN'S PAST AND CURRENT CHILD SUPPORT OBLIGATIONS 

We find no abuse of discretion or legal basis on which to 

overturn the District Court's calculation of Stephen's past and 

current child support obligations as set forth in its Memorandum 

and Order dated February 26, 1993. 

AFFIRMED. 

We Concur: