No. 90-578 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

IN RE THE MARRIAGE OF TERRI D. DURBIN, n/k/a TERRI D. WARD, 

Petitioner and Appellant, 

and 

EDWIN D. DURBIN, 

FILED 

DEC 19 1991, 

Respondent and Respondent. 

CLERK OF SUPREME COURT 

STATE OF CjlONTANA 

APPEAL FROM: District Court of the Tenth Judicial District, 

In and for the County of Fergus, 

The Honorable Peter L. Rapkoch, Judge presiding. 

COURSEL OF RECORD: 

For Appellant: 

John R. Christensen argued; Christensen & Hubble, 

Stanford, Montana. 

For Respondent: 

Michael G. Moses argued; Moses Law Firm, Billings, 

Montana. 

For Amicus : 

Peggy Probasco, Special Assistant Attorney General, 

Butte, Montana. 

Submitted: September 18, 1991 

Filed: 

Clerk 
No. 90-578 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

IN RE THE MARRIAGE OF TERRI D. DURBIN, n/k/a TERRI D. WARD, 

Petitioner and Appellant, 

and 

EDWIN D. DURBIN, DEC 1 :t 199.1 

Respondent and Respondent. 

APPEAL FROM: District Court of the Tenth Judicial District, 

In and for the County of Fergus, 

The Honorable Peter L. Rapkoch, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John R. Christensen argued; Christensen & Hubble, 

Stanford, Montana. 

For Respondent: 

Michael G. Moses argued; Moses Law Firm, Billings, 

Montana. 

Filed: 

Submitted: September 18, 1991 

Decided: December 19, 1991 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

Terri D. Durbin, now known as Terri D. Ward (Terri), appeals 

the November 1, 1990 findings of fact, conclusions of law, and 

order of the Tenth Judicial District Court of Fergus County, 

Montana, which denied her cross-petition for modification of child 

support, denied her attorney fees and costs, and granted Edwin 

Durbin (Ed) a tax exemption for their son, Aaron. We reverse and 

remand. 

Terri presents the following issues: 

1. Did the District Court err in failing to modify child 

support payments to reflect change of circumstances, the children's 

ages, the standard of living the parties1 minor children would have 

enjoyed had the marriage not been dissolved, and Ed's ability to 

pay increased child support? 

2. Should Terri be awarded attorney fees and costs incurred 

in responding to Ed's petition for modification, and further, 

should she be awarded attorney fees and costs of appeal? 

3. Did the District Court improperly allow Ed to claim a tax 

deduction for Aaron while not ordering him to pay any child 

support? 

I 

Terri married Ed on December 27, 1975, in Lewistown, Montana. 

The couple had two children, Aaron born July 9, 1976, and Shelley, 
born November 3, 1979. On November 5, 1986, the couple divorced. 

The divorce decree 1) awarded the couple joint custody of the 

children, 2) awarded Terri primary physical custody of the 

children, 3) awarded Terri and Ed one tax deduction each for the 

children, and 4) required Ed to pay Terri monthly child support 

totaling $150 per child, except for two months in the summer, where 

he was to pay monthly child support totaling $75 per child. 

On December 18, 1986, Ed lost his sight as a result of a workrelated accident. Thereafter, Ed began to receive monthly Workers' 

Compensation benefits of $820. In June or July 1987, Ed received 

from his employer's Fireman's Fund disability insurance policy a 

lump sum payment of $5,000; he also began to receive monthly 

payments of $87 from this policy. In June 1987, Ed began to 

receive monthly Social Security benefits, which reduced the amount 

of monthly Workers1 Compensation benefits he received. At this 

time, Edts total monthly income, including Workerst Compensation 

benefits, Social Security benefits, and Fireman's Fund disability 

benefits was $1154. 

In June 1987, Terri, on behalf of the children, began to 

receive monthly Social Security benefits totaling $174 per child. 

Ed ceased paying Terri child support at this time. Ed testified 

that he believed the Social Security benefits on behalf of the 

children sewed as a credit toward his child support obligation. 
In December 1989, Terri received a degree in accounting from 

Eastern Montana College. In January 1990, she secured employment 

as a staff tax accountant in Portland, Oregon. She financed her 

schooling with student loans, totaling $11,539 as of June 1990. 

Terri's adjusted gross income was $11,759 in 1988 and $9,765 in 

1989. In 1988 and 1989, Terri took tax deductions for both 

children on her income tax returns as she was able to prove to the 

Internal Revenue Service that she was providing over half of the 

children's financial support. 

In May 1990, Ed received a lump sum settlement for his 

injuries totaling $373,557 after costs, expenses, and attorney 

fees. Additionally, as part of a structured settlement, Ed began 

receiving monthly payments of $3788 in July 1990, these payments 

guaranteed to continue for thirty years. 

On May 21, 1990, Terri filed an action for an order to show 

cause in Oregon. On May 29, 1990, Ed petitioned the District Court 

for a modification of child support, custody, and visitation. On 

June 14, 1990, Terri responded to Ed's petition and cross-petitioned for past, current and future child support modification, 

attorney fees, and costs. 

The District Court conducted a hearing on this matter on June 

26 and 27, 1990. At the hearing, testimony revealed that Terri's 

approximate gross income for 1990 would be $26,411 and Ed's 1990 

approximate gross income, including Social Security benefits, 
Fireman's Fund disability insurance benefits, Workers' Compensation benefits, the structured settlement, and the interest on the 

lump sum settlement would be between $87,000 and $145,000, 

depending upon Ed's investment return. Testimony also revealed 

that Ed would continue to have this gross annual income for the 

remainder of his life, approximately sixty percent of this income 

being tax-free. At the time of the hearing, the Social Security 

monthly benefits on behalf of the children increased to $198 per 

child. 

On November 1, 1990, the District Court 1) denied Ed's 

petition for modification of child support, custody, and visitation, 2) denied Terrils cross-petition for modification of past, 

current, and future child support, 3) denied Terri attorney fees 

and costs, and 4) granted Terri two tax deductions for the children 

in 1990 and granted Ed a tax exemption for their son, Aaron, 

beginning in 1991. From this judgment, Terri appeals. 

I1 

Our standard of review for findings of fact in child support 

modification cases is whether the District Court clearly abused its 

discretion. In Re The Marriage of Hall (1987), 228 Mont. 36, 39, 

740 P.2d 684, 686. Our standard of review for conclusions of law 

of a trial court is whether the District Court correctly interpret- 
ed the law. Steer, Inc. v. Deplt of Revenue (1990), 245 Mont. 

470, 474, 803 P.2d 601, 603. 

I11 

Did the District Court err in failing to modify child support 

payments to reflect change of circumstances, the children's ages, 

the standard of living the parties' minor children would have 

enjoyed had the marriage not been dissolved, and Ed's ability to 

pay increased child support? 

Terri presents two arguments under this issue: 1) that the 

Social Security benefits on behalf of the children do not serve as 

a credit toward Ed's past, present, and future child support 

payments under the dissolution decree, and 2) that personal injury 

settlements, payment for future loss of income, Workers' Compensation benefits, Fireman's Fund disability insurance benefits, and 

Ed's Social Security benefits (collectively referred to as Ed's 

personal injury awards) should be considered income when determining a child support modification. Both arguments will be discussed 

separately below. 

1. Social Security Benefits on Behalf of the Children 

The District Court in Conclusions 6 and 7 of its November 1, 

1990 findings of fact, conclusions of law and order held: 

6. That Respondent, Ed Durbin, has paid in full all 

child support he was obligated to pay through June, 1987, 

at which time the social security benefits commenced, 
said benefits being specifically - for child support 

payments from Respondent as the result of his total 

disability resulting from his injury. 

7. That the amounts of those social security payments 

have been in excess of the amounts due under the Property 

Division and Custody Agreement of the parties and also 

exceed the Montana Child Support Guidelines for child 

support. The Court therefore concludes that the Petitioner is entitled to the child support payments of the 

social security benefits therefor, paid by the Social 

Security Administration. Petitioner is not entitled to 

child support payments from the Respondent in excess of 

the social security payments therefor until the amounts 

determined under the Montana Guidelines exceed the social 

security payments, and then only the excess over such 

payments. 

(Emphasis added.) 

Terri argues that the District Court erred when it concluded that 

the Social Security benefits she receives on behalf of the children 

1) are a credit toward Ed's child support obligation from June 

1990, and 2) relieve Ed of paying any back, current and future 

child support under the dissolution decree. 

This Court has addressed the issue of whether Social Security 

benefits on behalf of a child serve as a credit toward a parent's 

child support obligation on two different occasions. In Tefft v. 

Tefft (1981), 192 Mont. 456, 457-59, 628 P.2d 1094, 1095, a 

district court on March 25, 1980, amended a February 27, 1980 

dissolution decree by allowing a father to credit the $200 monthly 

Social Security benefits, received on behalf of his child due to 

the child's learning disability, toward his $250 child support 

obligation. The district court, in amending the dissolution 
decree, considered these Social Security benefits as financial 

resources of the child under what is now 5 40-4-204 (2) (a), MCA. 

Tefft, 192 Mont. at 462-63, 628 P.2d at 1098. This Court affirmed 

when it found no abuse of discretion on the part of the district 

court. Tefft, 192 Mont. at 463, 628 P.2d at 1098. 

In the case of In Re the Marriage of Gallant (1990), 241 Mont. 

363, 364-65, 786 P.2d 1193, 1195, an action for past due child 

support, this Court held that Social Security benefits to a child 

due to the father's disability did not absolve the father's child 

support obligation under the dissolution decree. In Gallant, 

father was disabled at the time of the dissolution. The district 

court recognized father's disability and allowed him to forego 

child support until he received disability benefits. Father began 

to receive Workers' Compensation benefits one year later in 1981. 

Father, however, did not comply with child support under the 

dissolution decree. In 1985, father began to receive Social 

Security benefits for his disability; additionally the children 

began to receive monthly Social Security benefits, these benefits 

exceeding the amount of the father's monthly child support 

obligation. From 1986 to 1990, father failed to pay any child 

support. Father argued that he was in substantial compliance with 

his child support obligation under the dissolution decree due to, 

in part, the monthly Social Security benefits on behalf of the 

children. Gallant, 241 Mont. at 364, 786 P. 2d at 1194. This Court 
held that "[sluch benefits in no way constitute an expenditure from 

the father." Gallant, 241 Mont. at 365, 786 P.2d at 1195. 

Other jurisdictions addressing this issue have held: 

1. Social Security benefits received as a result of a 

parent's retirement or disability are credited toward child 

support obligations. E.s. Cash v. Cash (Ark. 1962), 353 

S.W.2d 348; Horton v. Horton (Ga. 1963), 132 S.E.2d 200; 

Schulze v. Jensen (Neb. 1974), 214 N.W.2d 591; Perteet v. 

Sumner (Ga. 1980), 269 S.E.2d 453; Boyes v. Boyes (Iowa 

1976), 247 N.W.2d 265; Griffin v. Avery (N.H. 1980), 424 A.2d 

175; Folds v. Lebert (La. App. 1982), 420 So.2d 715. 

2. Social Security benefits are credited toward future child 

support obligations only upon modification of the original 

decree. E.q. Chase v. Chase (Wash. 1968), 444 P.2d 145; 

Joachim v. Joachim (1977), 393 N.Y.S.2d 63; In Re the 

Marriage of Cope (Or. 1980), 619 P.2d 883; Moritz v. Moritz 

(Minn. 1985), 368 N.W.2d 337. 

3. Social Security benefits are not credited toward child 

support obligations when certain circumstances exist. E.q. 

Fowler v. Fowler (Conn. 1968), 244 A. 2d 375; Oatley v. Oatley 

(Ohio 1977), 387 N.E.2d 245; Gerlich v. Gerlich (Minn. 1986), 

379 N.W.2d 689; McClaskey v. McClaskey (Mo. App. 1976), 543 

S.W.2d 832; In Re the Marriage of Sward (Minn. 1987) 410 

N.W.2d 442. 
Section 40-4-208(1), MCA, provides that a dissolution decree 

can be modified "only as to installments accruing subsequent to 

actual notice to the parties of the motion for m~dification.~~ 

(Emphasis added.) See also 45 C.F.R. 302.70 and 303.106 (1990). 

We are therefore persuaded by the second category of cases holding 

that the receipt of Social Security benefits on behalf of a child 

and following a dissolution does not justify a credit toward child 

support obligation absent a court action modifying the dissolution 

decree. 

Here, Ed petitioned the District Court for modification of 

child support on May 29, 1990, following receipt of his $373,557 

lump sum settlement. Ed's petition served as actual notice to 

~erri of Ed's modification request. Under 5 40-4-208(1), MCA, any 

modification of Ed's child support payments under the dissolution 

decree applies only to the child support payments accruing after 

May 29, 1990. We hold that based on 9 40-4-208(1), MCA, the 

District Court incorrectly concluded that the Social Security 

monthly benefits on behalf of the children from June 1987 to May 

1990 served as a credit toward Ed's child support obligation; 

accordingly, Ed is responsible for paying monthly payments of child 

support under the dissolution decree from June 1987 to May 29, 

1990. 

Still remaining is the issue of whether the Social Security 

benefits received on behalf of the children after May 29, 1990, 
serve as a credit toward Ed's child support obligation. These 

benefits are paid as a result of Ed's disability and serve in part 

as a substitute for Ed's lost earning capacity. 42 U.S.C. 

5 402 (c) . Accordingly, we hold that these Social Security benefits 

on behalf of the children received after May 29, 1990, are to be 

treated as a contribution from Ed toward the support of his 

children and serve as a credit toward Ed's child support obligation. 

In light of this holding, we overrule Tefft v. Tefft (1981), 

192 Mont. 456, 628 P.2d 1094, to the extent of allowing a retroactive credit of Social Security benefits received on behalf of a 

child toward a parent's child support obligation prior to a 

modification of the dissolution decree. Additionally, we overrule 

In Re the Marriage of Gallant (1990), 241 Mont. 363, 786 P. 2d 1193, 

to the extent that Social Security benefits on behalf of a child 

due to a parent's disability cannot under any circumstances be 

credited toward the parent's child support obligation. 

2. Personal Iniurv Awards 

Terri further argues that the District Court abused its 

discretion when it found that Ed's personal injury awards are not 

considered income when determining a child support modification. 

Terri argues that this finding is contrary to 1) the Uniform 
District Court Child Support ~uidelines', which provide that ltall 

income, from whatever sources,I1 is to be considered in child 

support modifications, and 2) the standards under 5 40-4-204, MCA. 

The District Court found that Ed's financial awards regarding 

his personal injury are "damaqes as a result of personal injury," 

and as such, are Infor the purpose of compensating [Ed] for his 

losses to restore him to the status quo ante." The ~istrict Court 

further found that: 

Respondent is not richer than he was; he is now blinder 

than he was. Therefore, the Court finds that the moneys 

received by Ed Durbin in this settlement are not to be 

included and cannot be included in the determination of 

child support guidelines. Further, the Court finds that 

pursuant to the testimony concerning his settlement, Ed 

Durbin is responsible for one-half of any and all medical 

expenses to be incurred in the future by Ed Durbin. 

These moneys as a result of this personal injury must 

therefore be maintained and used for purposes of defraying the medical expenses to be incurred by Ed Durbin in 

the future, which are anticipated to be substantial. 

Based on these findings, the District Court denied a modification 

of child support; however it is unclear as to whether the District 

Court indeed applied the Uniform District Court Child Support 

Guidelines to this case. 

'under 5 40-5-209, MCA, Montana Department of Social and 

Rehabilitation Services adopted child support guidelines, Admin. R. 

Mont. 46.30.1501 to -.I549 (1990), which became effective July 13, 

1990. Ed petitioned for child support modification on May 29, 

1990. Therefore, these child support guidelines are not applicable 

to this case. 
Section 40-4-204 (3) (a) , MCA, provides that a court shall apply 

the Uniform District Court Child Support Guidelines and the 

enumerated standards under 5 40-4-204, MCA, when determining a 

child support modification tfunless the court finds by clear and 

convincing evidence that the application of the standards and 

guidelines is unjust to the child or to any of the parties or is 

inappropriate in that particular case." We hold that under the 

facts of this case, the application of the Uniform District Court 

Child Support Guidelines regarding Ed's personal injury awards is 

inappropriate and falls within the exception contained in § 40-4- 

204 (3) (a), MCA. 

Here, the record indicates that if the Uniform District Court 

child Support ~uidelines were applied to Ed's gross monthly income, 

including his personal injury awards, Ed would be obligated to pay 

a monthly child support payment totaling $1,624.56. The record 

indicates that applying the Uniform District Court Child Support 

Guidelines to Terri's income results in a monthly child support 

obligation for Terri of $407.83. subtracting Terri's obligation 

from Ed's results in Ed paying monthly child support of $1216.73. 

The Uniform District Court Child Support Guidelines do not 

take into consideration Ed's medical expenses as a result of his 

personal injury. The Guidelines simply provide that all income 

from all sources is to be considered when determining a modification in child support. The District Court found that Ed's future 
medical expenses Itare anticipated to be substantial. 'I Considering 

all of Ed's personal injury awards without considering Ed's actual 

and necessary needs including those resulting from his permanent 

disability is an inappropriate result. The noncustodial parent's 

financial resources and needs are to be considered by the District 

Court under 9 40-4-204 (2) (e) , MCA. 

Just as inappropriate, however, is to preclude Ed's personal 

injury awards when considering a child support modification in this 

instance. Ed's personal injury awards serve in part to replace the 

income he can no longer earn through employment. The enumerated 

standards of 5 40-4-204(2), MCA, include the consideration of the 

financial resources of both parents, the needs of the noncustodial 

parent, the standard of living the children would have enjoyed had 

the marriage continued, and the age of the children. The record 

indicates that Ed's gross annual income, following the filing of 

his modification petition, is between $87,000 and $143,000. The 

record indicates that Terrifs 1990 gross annual income is $26,411. 

The record indicates that Edwin will be responsible for onehalf of his future medical expenses and his Medicare insurance will 

cover the remaining one-half. The record, however, does not 

indicate how much these future medical expenses might be, or 

whether Ed has medical insurance beyond Medicare, which would cover 

any or part of Ed's attributable future medical expenses. The 
District Court only found that Ed's future medical expenses ''are 

anticipated to be substantial." 

We hold that the District Courtts interpretation and application of the law was incorrect under 5 40-4-204(2), MCA, in 

concluding that Ed's personal injury awards were precluded from 

consideration in Territs counter-petition for a modification of 

child support. We remand this case to the District Court with 

instructions to make additional findings and conclusions concerning 

1) Ed and Terri's financial resources, 2) Ed and Terri's annual 

gross income, 3) the children's expenses, and 4) Ed's actual and 

necessary financial needs including those associated with his 

medical care resulting from his blindness. We instruct the 

District Court to subtract Ed's actual and necessary needs 

including those associated with his medical care from his financial 

resources, and consider the remaining amount in determining a 

future child support modification under the enumerated standards of 

5 40-4-204 (2), MCA. 

We wish to note that this opinion does not affect the federal 

tax exemption allowed to Ed concerning his personal injury awards. 

IV 

Should Terri be awarded attorney fees and costs incurred in 

responding to Ed's petition for modification, and further, should 

she be awarded attorney fees and costs of appeal? 
Terri argues that the District Court abused its discretion 

when it did not award her attorney fees and costs because evidence 

established the following: 1) ~erri voluntarily traveled to Montana 

from Oregon to respond to Ed's petition, 2) she borrowed money from 

her new employer to do so, 3) her financial resources are limited, 

and 4) Ed's financial resources are substantial, and he can easily 

afford to pay for Territs attorney fees and costs. Terri further 

argues that based on the same, this Court should award her attorney 

fees and costs of appeal. 

Ed argues that the District Court did not abuse its discretion 

when it refused to award ~erri's attorney fees and costs because 1) 

the divorce decree did not provide for such an award, 2) Terri, in 

her cross-petition, raised additional issues outside of Ed's 

petition for the court's consideration, and 3) the record sufficiently supports the ~istrict Courtts conclusion that both parties 

should pay their own attorney fees and costs. Ed further argues 

that based on the same, this Court should deny Terri an award of 

attorney fees and costs of appeal. 

The District Court made the following findings pertinent to 

this issue: 

The Court finds from the pleadings and the exhibits on 

file herein that there were numerous and substantial 

issues to be resolved by these parties. Terri Durbin 

filed pleadings in attempts at modification in the State 

of Oregon without authority and without jurisdiction in 

the State of Oregon and made attempts to require Ed 

Durbin to appear in Oregon for purposes of answering 
those claims. Mr. Durbin was required to hire the 

services of counsel in the State of Oregon as well as in 

the State of Montana to respond to those pleadings. 

Basically crossing in the mails was the petition of Ed 

attempting to clarify the issues concerning modification 

of child support and the visitation and custody matters. 

The Court finds that both of the petitions by the parties 

were filed in good faith for purposes of resolving issues 

that these parties have been unable to resolve in the 

past. Further, the Court finds that the visitation 

provisions now in effect pursuant to the decree required 

that the children return to Montana on or about the 15th 

day of June anyway. By having this matter on the 24th 

day of June, 1990, it was convenient or as convenient as 

possible for all parties involved. As a result, the 

Court specifically finds that neither side is entitled to 

reasonable attorney fees and/or Court costs and each must 

pay his and her own. 

Section 40-4-110, MCA, provides that the court may award 

attorney fees and court costs "after considering the financial 

resources of both parties.If Additionally, the person requesting 

attorney fees and court costs must make a showing of necessity. In 

Re the Marriage of Knudson (1980) , 186 Mont. 8, 16-17, 606 P. 2d 

130, 135. We hold that the District Court failed to make adequate 

findings regarding Terri and Ed's financial resources when it 

concluded that each party should pay for his or her respective 

attorney fees and court costs. We therefore remand this case to 

the District Court for findings consistent with the rest of this 

opinion regarding Terri and Ed's financial resources. On remand, 

we wish to note that the District Court may still consider whether 

the parties should pay their respective attorney fees. 
v 

Did the District Court improperly allow Ed to claim a tax 

deduction for Aaron while not ordering him to pay any child 

support? 

On remand, the District Court shall also consider the proper 

allocation of income tax deductions for the dependent children and 

allocate the deductions in conformity with the court's findings and 

conclusions on child support, as well as the applicable tax law. 

This case is reversed and remanded to the District Court for 

further proceedings consistent with this opinion. 

We concur: 
Justice Terry N. Trieweiler concurring in part and dissenting in 

part. 

I concur in the result achieved by that part of the majority 

opinion which remands this case to the District Court for 

consideration of Ed's personal injury award in relation to his 

child support obligation. However, I do not agree with all that is 

said in that part of the majority's opinion. 

Specifically, I disagree with the majority's conclusion that 

because Ed's award serves in part to replace the income he can no 

longer earn, his financial condition has somehow changed. If his 

personal injury award replaces prior income, then as far as the 

record discloses, it replaces the same income upon which his prior 

child support obligation was based, and nothing has changed. 

I concur in the result achieved by the majority because under 

the facts presented in this case it is an equitable result and I 

can find no authority to the contrary. The majority result is 

consistent with treatment of personal injury awards by other 

jurisdictions. See Fabiano v. Fabiano (Conn. App. Ct. 1987) , 523 A. 2d 

937; Sornrnerv. Sornrner (Wis. Ct. App. 1982), 323 N.W.2d 144. 

However, I agree with the rationale of the District Court when 

it concluded that Ed's circumstances had not really changed as a 

result of his personal injury award, but that he had simply 

replaced certain assets (his eye sight and earning capacity) with 

other assets (money). 
Furthermore, I am concernedthat under different circumstances 

the precedent established by this case could prove to be 

inequitable to personal injury victims. Therefore, I believe it is 

difficult to establish any consistent rule about the relationship 

of personal injury settlements and child support obligations. I 

agree with the Wisconsin Court of Appeals that each case must be 

evaluated separately and that: 

[Wlhether a personal injury recovery does indeed improve 

a victim's economic condition for child support purposes 

will not always be easy or obvious. There are times, of 

course, when the victim has suffered actual economic 

impairment as a result of the tort-feasorts negligence, 

and the award is merely repaying the victim for the 

actual economic impairment. If so, the award may truly 

make the victim economically whole again and nothing 

more; no increase in economic circumstances results. 

These questions of fact must be carefully considered by 

the trial court in order to do justice to both the 

noncustodial parent and to the children. 

Sommer, 323 N.W.2d at 147. 

I dissent from that part of the majority opinion which 

concludes that there need be a modification of the original decree 

before social security benefits can be credited toward a parent's 

child support obligations. The social security benefits paid to 

Ed's children in this case were a direct result of his disability 

and inability to work. They are clearly a substitute for his loss 

of earning power and his obligation to support his children. There 

is no reason apparent to me why a disabled parent should be 

required to incur the additional expense of attorney fees to go 
through the formality of modifying a decree simply to reflect what 

in reality is already the situation. 

I do not agree that 5 40-4-208, MCA, requires the majority's 

conclusion. That section only pertains to modification of child 

support payments. In the case of social security payments, the 

parent is simply substituting one source of payment for another. 

Furthermore, the result achieved by the majority is 

particularly harsh where the Court concedes that after modification 

of the decree it would be appropriate to credit social security 

payments to child support obligations, but disallows a credit for 

those same payments for a nearly three year period of time prior to 

the motion to modify. I believe that the majority's opinion exalts 

form over substance and creates an unnecessary hardship for this 

totally disabled parent.