IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

IN RE MARRIAGE OF 

DIANA RAE COWEN HEWITT, 

Petitioner and Respondent, 

and 

RONALD DEAN HEWITT, 

Respondent and Appellant. 

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: 

Dennis Paxinos, Billings, Montana 

!. 

. For Respondent: - > 

fl 

0 Jon A. Oldenburg, Deputy County Attorney *--5 

, -i Lewistown, Montana 

C ' Bradley B. Parrish, Lewistown, Montana 

\ 

?--4 - 

L - -- " 

- .. - r - -. Submitted on Briefs: March 22, 1990 ' - 

c- - . . - C: Decided: May 1, 1990 

Fileb: 
Justice Fred J. Weber delivered the Opinion of the Court. 

This is an appeal from an order by the ~istrict Court, Tenth 

Judicial District, Yellowstone County, Montana which determined a 

child support obligation of Mr. Ronald Hewitt. Mr. Hewitt appeals. 

We affirm. 

The sole issue presented for our review is whether the 

District Court erred in ordering continued child support for a 

married child who has reached the age of majority. 

Robert and Diane Hewitt were married in 1966. Three children 

were born during the marriage: Malisa, born April 6, 1969 and Jason 

and Justin, born March 4, 1973. The parties separated in 1981 and 

Mrs. Hewitt filed a petition for dissolution on February 19, 1982. 

When the petition was filed Mr. Hewitt was not living in Montana 

and could not be personally served. Service by publication was 

made in the ~ewistown, Montana newspaper. Mr. Hewitt did not 

participate in the formulation of the divorce decree or the 

property and support agreement. He made no appearance in the 

proceedings and on May 5, 1982 a default decree of dissolution was 

entered in Lewistown, Montana. One provision of the decree stated: 

3. That the United States Navy or its 

paymaster is hereby ordered to deduct from 

Respondent's military retirement retainer the 

amount of $175.00 per month per child, for a 

total of $525.00 per month, for and as child 

maintenance and support to be paid directly to 

Petitioner. That said maintenance and support 

is to be continued until each child reaches 

the age of 18 or until each child reaches the 

age of 22 if they remain enrolled on a full 

time basis as students in post-high school 

education. 
After the divorce was granted, partial child support payments 

were secured by garnishment of Mr. Hewittls Navy retirement pay. 

However, this did not satisfy Mr. ~ewittls total monthly 

obligation, and arrearage began to accrue. In November, 1985, Ms. 

Hewitt obtained a judgment of over $10,000 on the accrued 

arrearage. In December, 1988, Ms. Hewitt petitioned for a 

supplemental support order. The court held a hearing on this 

petition on February 23, 1989. After the hearing the parties 

stipulated that Mr. Hewittls total arrearage amounted to $20,623; 

that Mr. Hewittls Navy retirement deduction should be paid at the 

maximum allowed by law until the arrearage was paid in full; and 

that the court should determine whether the support obligation for 

Malisa should cease upon her marriage in March of 1989. The 

parties submitted briefs on the child support issue. 

On July 28, 1989, the ~istrict Court ordered that the child 

support obligation to Malisa should not terminate upon her 

marriage, but should continue until she is no longer enrolled as 

a full-time student in post high school education. It is from this 

order that Mr. Hewitt appeals. 

Mr. Hewitt contends that he cannot be obligated to provide 

for a child who has reached the age of majority unless he has 

voluntarily agreed to do so. In support of this contention Mr. 

Hewitt cites 5 40-4-208(5), MCA, which provides: 

Unless otherwise agreed in writing or 

expressly provided in the decree, provisions 

for the support of a child are terminated by 

emancipation of the child but not by the death 

of a parent obligated to support the child. 

When a parent obligated to pay support dies, 
the amount of support may be modified, 

revoked, or commuted to a lump-sum payment, to 

the extent just and appropriate in the 

circumstances. 

Mr. Hewitt also relies on Hurley v. Hurley (1986), 222 Mont. 

287, 298-99, 721 P.2d 1279, 1286-87, which stated that "a parent's 

obligation for child support ends at the age of majority, unless 

there has been some voluntary agreement that support by one or both 

parents will continue beyond majority. (Emphasis in original. ) 

In Hurlev, the District Court awarded the wife 65% of the marital 

estate based partly on the expense she would incur in educating the 

parties' son, who was in high school. Hurley is distinguishable 

since it did not involve an express child support provision, as we 

have in the present case. Additionally, Hurlev did not discuss the 

statute relevant to the present issue, 5 40-4-208(5), MCA. 

Mr. Hewitt contends that his agreement to pay support must 

be voluntary and not the result of a default decree. However, his 

contention is not supported by the statutory language. Section 40- 

4-208(5), MCA, provides that provisions for support of a child are 

terminated by emancipation ll[u]nless otherwise agreed in writing 

or expressly provided in the decree." In the present case the 

decree, entered upon his default, pursuant to the petition, 

expressly states that support is to be continued until the age of 

22 if the child is a full-time student in post high school 

education. 

As we have previously held, the provision of the decree 

controls: 
Under the statute, if provisions 

regarding the duration of child support are 

not contained in either the dissolution decree 

or the separation agreement, jurisdiction over 

child support automatically terminates when 

the child becomes emancipated. If, however, 

the separation agreement or the dissolution 

decree provides that child support payments 

shall terminate at a specific age or time, 

such a provision is controlling and the 

district court retains jurisdiction over 

questions of support until the terms of the 

agreement or decree are fulfilled. 

Chrestenson v. Chrestenson (1979) , 180 Mont. 

96, 99-100, 589 P.2 148, 150. 

In re Marriage of McFate (Mont. 1989), 781 P.2d 759, 760, 46 

St.Rep. 1858, 1860; See also Torma v. Torma (1982), 198 Mont. 161, 

164, 645 P.2d 395, 397; Tefft v. Tefft (Mont. 1981), 628 P.2d 1094, 

1097, 38 St.Rep. 837, 841. In the present case, an express 

provision of the decree obligates Mr. Hewitt to provide support 

past emancipation. Lack of participation by Mr. Hewitt does not 

render the decree ineffective. See In re Marriage of Bowman 

(1987), 226 Mont. 99, 109-10, 734 P.2d 197, 204. 

Mr. Hewitt also contends that Malisals emancipation by 

marriage should terminate his support. This contention, however, 

is also subject to the above analysis. Whether her emancipation 

is by reaching the age of majority or by marriage, the present 

decree extends the child support obligation past emancipation if 

the educational requirements are met. 

As an alternative argument, Mr. Hewitt contends the District 

Court exceeded its jurisdiction in that its order of July 18, 1989 

actually modified the original decree. The supplemental order 

states that child support I1shall continue until [Malisa] is no 
longer enrolled as a full-time student in post high school 

education." The original decree provided that support would 

terminate at age 22 regardless of the child's enrollment as a 

student. Ms. Hewitt concedes that the court's modification was 

inadvertent and exceeded its jurisdiction. Cf. In re Marriase of 

McFate, 781 P.2d at 760. 

Accordingly, we affirm the order by the District Court which 

ordered Mr. Hewitt to pay child support to Malisa while enrolled 

as a full-time student in post high school education. We modify 

the supplemental order to state that this obligation shall continue 

until Malisa reaches the age of 22 if she remains enrolled on a 

full time basis as a student in post high school education, as 

provided in the original decree. 

Affirmed. 

We Concur: A 22-l Chief Ju tice 

Justices