NO. 92-154 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

IN RE THE MARRIAGE OF 

WILL0 B. PETRANEK, n/k/a STREET, 

Petitioner and Respondent, 

and 

THOMAS B. PETRANEK, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Tenth Judicial District, 

In and for the County of Fergus, 

The Honorable Peter L. Raphoch, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Jack R. Stone, Attorney at Law, Lewistown, Montana 

For Respondent: 

James D. Elshoff, Attorney at Law, Great Falls, 

Montana 

Submitted on Briefs: July 2, 1992 

Filed: 

Clerk 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

Respondent Willo B. Petranek, now known as Willo B. Street, 

filed a motion for child support arrears on September 10, 1991, 

seeking enforcement of the parties1 1981 divorce decree. Following 

a January 24, 3992, hearing, the District Court for the Tenth 

~udicial ~istrict, Fergus County, found that appellant Thomas B. 

Petranek owed arrears and interest in the amount of $12,919-50 

which had accrued from December 1982 through March 1992. From that 

judgment, Thomas appeals. We affirm. 

The sole issue for our consideration is whether the District 

Court abused its discretion by concluding that its 1982 decree 

entered pursuant to the Uniform Reciprocal Enforcement of Support 

Act (URESA) did not modify the child support obligation imposed in 

the couple's original Decree of Dissolution. 

On March 6, 1981, Willo petitioned for dissolution of marriage 

in Fergus County Cause No. 24770. District Court Judge -Roy 

McKinnon dissolved Willols and Thomasls marriage on July 28, 1981, 

and awarded Willo custody of Joesanha, the couple's 2t-year-old 

child. Thomas was ordered to pay child support in the amount of 

$225 per month until Joesanha reached 18 years of age or graduated 

from high school. 

Thomas paid that amount through 1981, but became delinquent in 

1982 after Willo and Joesanha moved to Washington state. In 

November 1982, Willo commenced an action under URESA in the Fergus 

County District Court, under Cause No. 25137, to recover the 

delinquencies. Neither party petitioned for a modification of the 
support provisions contained in the divorce decree; the URESA 

action was initiated to enforce Thomas's existing support 

obligation. 

In an order signed December 6, 1982, pursuant to the URESA 

action, Judge McKinnon ordered Thomas to pay $130 per month until 

Joesanhats emancipation, or further order of the court. The URESA 

order made no reference to the underlying divorce decree or the 

support order under Cause No. 24770. 

Thomas has since made monthly payments of $130, which were 

credited toward URESA Cause No. 25137 and transferred to the Clerk 

of Superior Court in Pullman, Washington, for payment to Willo. 

In September 1991, Willo brought an action in the Fergus 

County District Court alleging that Thomas has not satisfied his 

original $225 monthly support obligations. Willo claimed that 

Judge McKinnonts URESA order, while requiring payments of $130 per 

month, had not modified the support provisions of the original 

divorce decree. The District Court, under Judge Peter Rapkoch, 

agreed with Willo, and awarded a judgment of $12,919.50 for past 

due child support and interest through March 1992. Notice of entry 

of judgment was filed on April 12, 1992. Thomas appeals. 

Thomas concedes that the law is well settled in this area but 

advocates the application of equitable principles. 

Section 40-4-208, MCA, sets forth the requirements for court 

modification of a support decree, and provides that a dissolution 

decree can be modified Itonly as to installments accruing subsequent 

to actual notice to the parties of a motion for modification." 

3 
(Emphasis added.) We have consistently interpreted the statutes in 

the child support area very strictly, as evidenced by our recent 

holding in InretheMam'ageofDurbin (lssl), 251 Mont. 51, 823 P.2d 243, 

In that case, we pointed out that .a child support provision in a 

divorce decree cannot be modified absent a motion under 5 40-4-208, 

MCA. Durbin exemplifies our reluctance to waive, or loosely 

construe, statutory requirements in this area. We held that even 

the receipt of Social Security benefits on behalf of the child did 

not justify an equitable modification of a support obligation, 

absent a court order to modify under § 40-4-208, MCA. 

There is no evidence that either Willo or Thomas ever sought 

modification of the original divorce decree by a motion under 

5 40-4-208, MCA, and there has never been a court order pursuant to 

Cause No. 24770 modifying the original order. Consequently, we 

conclude there has been no modification of Thomas's $225 per month 

support obligation entered in 1981 under Cause No. 24770. 

Thomas contends that the URESA action modified the original 

obligation, and that he relied in good faith on this modification 

since 1982. 

The Uniform Reciprocal Enforcement of Support Act was adopted 

by Montana in 1961 to provide an auxiliary or supplemental remedy 

for the enforcement of support orders. 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 not affected. Nor is its order 
modified by an order of a court fixing another or different sum 

pursuant to the URESA action. ~espa~v.~~pabz (Idaho 1956), 300 P.2d 

500 (cited with approval in Howardv.Howard (Miss. 1966), 191 so.2d 

528; Oglesby v. Oglesby (Utah 1973), 510 P.2d 1106) . 

Section 40-5-132, MCA, which codifies URESA, provides that: 

A support order made by a court of this state pursuant to 

this part [URESA] does not nullify and is not nullified 

by a support order made by a court of this state pursuant 

to any other law . . . unless otherwise specifically 

provided by the court. 

We held in Campbellv.Jenne (1977), 172 Mont. 219, 223, 563 P.2d 574, 

577, that 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 WRESA actions do 

not merge. A request for modification of a divorce decree is 

separate and distinct from an action arising under URESA. Oregonex 

rel Wordenv.Drinkwalter (1985), 216 Mont. 9, 700 P.2d 150. 

In this case, the UFU3SA order (Cause No. 25137) did not refer 

to the underlying support order in Cause No. 24770, and neither 

party ever sought modification of the order as required by statute. 

We hold that the District Court correctly concluded that the 

original support order requiring Thomas to pay $225 per month was 

valid and had not been modified by the UrCESA enforcement action 

initiated by Willo. 

Finally, Thomas argues that if the original support order was 

not modified by the URESA action, equity should intervene and bar 

Willors attempt to collect nine years of past due support payments 
under the doctrine of laches. However, the public policy of this 

state is that neither laches nor equitable estoppel applies to the 

recovery of child support arrears because childrents rights are at 

stake and will not be sacrificed by inaction of the custodial 

parent. Fitzgeraldv.Fitzgerald (1980), 190 Mont. 66, 618 P.2d 867. 

Though one might reasonably expect the custodian to promptly seek 

enforcement of a support order, failure of the custodian to do so 

does not benefit the person failing to pay by relieving them of 

that duty. Fikgerald, 618 P.2d at 869 (citing with approval Patenon 

v. Patemon (Wis. 19761, 242 N.W.2d 907). 

Despite our refusal to apply laches to the recovery of past 

due child support obligations, we recently held the ten year 

statute of limitations for actions upon court judgments or decrees, 

S 27-2-201(1), MCA, applicable to actions by one parent against the 

other for past due child support. In re the Marriage of Hooper & Crittendon 

(1991), 247 Mont. 322, 327, 806 P.2d 541, 544. Because all of the 

amounts Willo sought had accrued within the ten-year period prior 

to the filing of this action, the District Court was correct in 

concluding that all past due payments were recoverable. 

For these reasons, the decision of the District Court is 

aff inned. 
We concur: 
December 17, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

JACK R. STONE 

Attorney at Law 

Rt. 3, Box 3126 

Lewistown, MT 59457 

James D. Elshoff 

Attorney at Law 

P.O. Box 2323 

Great Falls, MT 59403 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANP.