No. w-587

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

IN RE THE MARRIAGE OF

THOMAS R. GLANVILLE,

Petitioner and Appellant,

and

PATRICIA DIANE GLANVILLE,

Respondent and Respondent.

APPEAL FROM: District Court of the Eleventh Judicial District,

In and for the County of Flathead,

The Honorable Ted o. Lympus, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Paula Johnson, Attorney at Law

Whitefish, Montana

For Respondent:

H. James Oleson; Oleson Law Firm,

Kalispell, Montana

Filed:

Submitted on Briefs: March 30, 1995

Decided: July 6, 1995

clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court

Thomas R. Glanville appeals from an order of the District

Court for the Eleventh Judicial District, Flathead County,

modifying child custody and support. We affirm.

The issue is whether the District Court erred in requiring

Thomas R. Glanville to pay back child support from July 1991

through August 1992.

The marriage of Thomas R. Glanville (the father) and Patricia

Diane Glanville (the mother) was dissolved in April 1988 in San

Luis Obispo County, Superior Court of California. They agreed to

joint legal custody of their two school-age children. Under a

modified order entered in November 1990 (apparently after the

father moved to Montana), the mother would have physical custody of

the children until June of 1991. The father would then assume

physical custody until the summer of 1992, when the court would

review the matter. Under the modified decree, the father was to

pay the mother child support of $400 per month.

In June of 1991, the children came to Whitefish, Montana, to

live with their father. The planned review by the California court

in the summer of 1992 did not occur. Instead, at the children's

request, they remained in Whitefish with their father except for

Christmas holiday and summer visitation with their mother.

In November 1992, the father filed in the Eleventh Judicial

District Court, Flathead County, an affidavit and petition for

modification of custody, visitation, and support. He asked the

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court to grant him primary residential custody of the children,

subject to reasonable visitation with the mother. He also asked

that the mother be ordered to pay him child support retroactive to

January 1992.

A hearing was held before a special master on June 10, 1993.

Adopting the special master's recommendations in their entirety,

the court accepted jurisdiction and modified the order of the

California court to provide that the children shall reside with

their father and have reasonable visitation with their mother. It

ordered the mother to pay child support of $150 per child per month

retroactive to August 1992. The court ruled that the father's

obligation to pay child support under the California decree

continued until August 1992. The father had paid no child support

to the mother since October of 1990. Calculating the resulting

support liability of each party, the court ordered the father to

pay the mother $4,820.38 in back child support.

Did the District Court err in requiring the father to pay back

child support from July 1991 through August 1992?

The father argues that he should not be required to pay the

mother child support for time during which the children lived with

him. Rather, he argues that he is entitled to child support

payments from the mother for that period. His view as to the

effective date for this has varied. On appeal, he contends the

mother should be required to pay him child support from July 1991

forward. As stated above, his petition for modification asked that

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she be required to pay child support retroactive to January 1992.

At the hearing, he testified that she should be required to pay

support retroactive to May 1992

Section 40-4-208(l), MCA, provides:

Except as otherwise provided in 40-4-201(6), MCA,

[concerning the terms of a separation agreement] a decree

may be modified by a court as to maintenance or support

only as to installments accruing subsequent to actual

notice to the parties of the motion for modification.

Under the above statute, the earliest date to which the District

Court could have retroactively modified the California decree would

be November 1992, when the father filed his motion for modification. The father argues, however, that the mother is equitably

estopped from seeking back child support from him.

A series of Montana cases has established that, upon

compelling evidence, the doctrine of equitable estoppel may

override the provisions of § 40-4-208, MCA. See In re Marriage of

Sabo (1986), 224 Mont. 252, 256, 730 P.Zd 1112, 1114. 'I [Tlhe

equitable principle arises when the [party against whom it is

applied] has expressly or impliedly consented to an arrangement

other than the payment of the judgment." In re Marriage of Cook

(1986), 223 Mont. 293, 299, 725 P.2d 562, 566.

[1]n Montana a decree for support may be modified on

equitable grounds by a court where there is clear and

compelling evidence of the terms of an oral agreement of

modification. . [Sluch modification may be applied

only to maintenance and support payments to be made

subsequent to the oral agreement for modification.

In re Marriage of Jensen (19861, 223 Mont. 434, 439, 727 P.2d 512,

515-16.

This Court's standard of review of an equitable decision is as

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provided by 5 3-2-204(5), MCA. This Court has interpreted that

standard as follows:

[Wle are guided by a number of principles established by

this Court. The credibility of witnesses and the weight

to be given their testimony are matters for the District

Court's determination in a nonjury case. Thus, in

examining the sufficiency of the evidence, we must view

the same in a light most favorable to the prevailing

party, and we will presume the findings and judgment by

the District Court are correct. We will not overturn the

findings and conclusions of the District Court unless

there is a decided preponderance of the evidence against

them, and when the evidence furnishes reasonable grounds

for different conclusions, the findings of the District

Court will not be disturbed. The burden of proof is on

the appellant.

Lumby v. Doetch (1979), 183 Mont. 427, 431, 600 P.2d 200, 202 (citations omitted throughout).

Contrary to the suggestion of the dissent, the facts of this

case are not indistinguishable from those in m. In Sabo -I the

decree of dissolution gave the mother sole custody of the children,

but, by later agreement of the parties, two of the children lived

with the father. m, 730 P.2d 1112-13. Here, the dissolution

decree provided for joint legal and shared physical child custody.

The distinction is important to a determination of whether the

parties have agreed to vary the terms of the dissolution decree so

that equitable estoppel may apply

During the time for which the father now seeks to be relieved

from an obligation of support, July 1991 to August 1992, the

children lived with him. For most of that period, however, this

physical custody arrangement did not differ from that specified in

the California court's November 1990 order. Under that order, the

children were to spend the 1991-92 school year with their father

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and the father's obligation for child support was to continue.

Because the father has not demonstrated an agreement for an

arrangement which differed from the California court's order

concerning the 1991-92 school year, we conclude that equitable

estoppel is not applicable for that period.

At the hearing before the special master, the father introduced into evidence a letter he received from the mother in May

1992. She wrote:

Since they've both expressed the wish to go to school

there, I guess 1'11 have to live with it.

The father testified that he felt the mother owed him child support

from May 1992 forward. However, the mother testified that it was

not until August of 1992, after she had spent the summer with her

children, that she finally agreed that they could remain in Montana

with their father.

In sum, the evidence of an agreement prior to August of 1992

to modify the California decree is conflicting and can hardly be

termed "clear and compelling." The special master found that an

agreement to modify the California decree occurred in August of

1992. That finding is supported in the record. The District Court

relieved the father of his child support obligation from August

1992 forward.

Absent circumstances justifying the application of equitable

estoppel prior to August 1992, and without other statutory

authority to retroactively modify the California court's decree, we

conclude that the District Court did not err in requiring the

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father to pay back child support due between July 1991 and August

1992.

Affirmed.

Chief Justice

We concur:

Justices

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Justice Terry N. Trieweiler dissenting.

I dissent from the majority opinion. The facts in this case

are indistinguishable from those in InreMarriage ofSabo (1987), 224

Mont. 252, 730 P.2d 1112, and our decision in that case compels

reversal of the District Court's order.

In the November 13, 1990, order from the Superior Court of the

State of California, Thomas was given custody of this couple's two

children beginning in the summer of 1991 and through the 1991-92

school year. In what was anything but a thorough or comprehensive

order, the following was the only reference to child support:

Child support in the amount of $400.00 is ordered

for both children, payable from Respondent to Petitioner,

one-half on the first and one-half on the 15th of each

month, commencing October 1, 1990 and continuintgl until

further court order or legal cause.

(Emphasis added.)

There was no further review of the California order because

toward the conclusion of the 1991-92 school year, Diane wrote to

Thomas and agreed that the children could remain with him during

the next school year. In that regard, she stated that:

Since they're [sic] both expressed the wish to go to

school there (Whitefish) I guess I'll have to live with

it, but we (the kids and I) need to be together as much

as we can.

In effect, Thomas has had the responsibility for raising and

supporting his children since June 21, 1991. Diane neither claimed

child support during that time, nor for that period of time at the

hearing which was held in Montana pursuant to Thomas's motion to

modify. She claimed support for only the period from October 1,

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1990, until June 21, 1991, when the two children moved to Montana

to live with Thomas. She gave the following testimony in response

to questions from her own attorney:

Q.

A.

Q.

A.

Q.

A.

Q.

A.

Q.

A.

Q.

A.

So its your position, then that Mr. Glanville owes

you that $3200?

Yeah, but it's more than that.

Because of the 21 days in June?

Right. Yeah.

And that's what you're asking that the court find

is the $3200 plus for the 21 days?

Yes.

How much is that per day?

I think it was $13.33 a day.

So if my calculator is right, that's an additional

$279.93?

Uh-huh. Yes.

So it's your position then that he owes $3479.93?

(Witness nodded.)

Clearly then, by her "assent and conduct" Diane consented to

modification of the couple's custody arrangement and child support

obligation long before Thomas's motion to modify was filed in

November 1992. Whether or not it is equitable to require a parent

to pay his or her former spouse child support during periods of

time when the couple's children are already living with and being

supported by the parent from whom the obligation is claimed, was

previously decided by this Court in MarriageofSabo. In that case, we

decided the following issue:

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Is a non-custodial father, who assumes permanent

custody and support of the children with the consent of

the custodial mother, relieved of the obligation to pay

child support accruing after and during the consensual

assumption of custody?

Marriage of Sabo , 730 P.2d at 1113

We answered our own question in the affirmative. Because the

facts in that case were so remarkably similar to those in this

case, citation to substantial portions of our opinion is warranted:

Thomas Sabo accepted the children into his home and

raised the children without any support from Stephanie,

even though she was employed as a real estate agent after

her return to Bozeman. Stephanie never asserted that her

current request was founded upon any actual need of her

children. Furthermore, she never suggested any implied

need which had not been satisfied over the years, or

which had now arisen and could possibly serve to validate

her action at this belated point. See [State of Washington ex

rd.] Blake&e [v. Horton], 72 2 P .2d at I I.5 I .

Although Thomas took no action to change the terms

of the divorce decree, he accepted sole responsibility

for the children's health, welfare and support. During

the period of Thomas' care, Stephanie's major contribution was sharing her Mexican vacation with Erin. Such

inequity cannot validate her claim. "Although leqallv

the mother may have been correct in her claim for child

support, eauitv demands that the claim must fail. This

Court has long adhered to such principles of equity."

Blakedee, 722 P.2d at 1151.

The Sabo children voluntarily moved in with Thomas.

During the entire period the children lived with Thomas,

Stephanie neither pursued support payments in arrears nor

objected to the shift in custody. Bv her assent and

conduct, Stephanie consented to the arranqement. As we

recently held, "[Tlhe equitable principle arises when the

mother has expressly or impliedlv consented to an

arrangement other than the payment of the iudsment." In

ReMarriageofCook (Mont. 1986), 725 P.2d 562, 566, 43 St.

Rep. 1732, 1737. This principle acknowledges that the

real beneficiaries of the judgment are the children, not

the person named in the judgment. . .

.

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Never, during the entire period that the Sabo

children were being raised by Thomas, did Stephanie offer

any financial assistance to Thomas. III Cook, we noted

that circumstances rnav not allow the mother to collect

child support in arrears, "where the husband has made

expenditures which constitute substantial compliance with

the spirit and intent of the decree." Cook, 725 P.2d at

566. Thomas has met both the spirit and the purpose of

child support obligations. Thomas did not abrogate his

duties and obligations under the decree of dissolution.

On the contrary, he assumed the duties of the custodial

parent by default, after Stephanie relinquished them.

. . . .

Under the equitable principles of Blakedee, Cook and

Jensen, we hold that Thomas substantially complied with

the decree obligations. By her assent and conduct,

Stephanie consented to the shift in custody and support.

We cannot equitably allow Stephanie to reap a windfall of

support payments, if she never made the support

expenditures. "A party to an agreement which has been

performed for some length of time is estopped to deny its

validity." Jensen, 727 P.2d at 516, 43 St.Rep. at 1895.

Thomas is therefore relieved of the obligation to pay any

child support accruing after and during his consensual

assumption of custody.

Marriage of Sabo , 730 P.2d at 1113-14 (emphasis added). All that was

said in Sabo applies to this case. The majority suggests that Sabo

is somehow distinguishable from this case because in Sabo the mother

had been given sole custody, while in this case the parents had

joint custody. However, that distinction is irrelevant and misses

the whole point of the Sabo decision. That case simply stands for

the principle that one parent should not be forced to pay support

to the other parent when, in reality, he or she is raising and

supporting the very children who are the subject of the support

obligation. The basis for our Sabo decision was that "where the

husband has made expenditures which constitute substantial
compliance with the spirit and intent of the decree," the mother

may not collect child support in arrears. Sabo , 730 P.Zd at 1114.

That decision had nothing to do with the fact that the mother had

been given sole custody, as opposed to joint custody. The majority

observes a distinction that truly makes no difference.

This couple's children lived with Thomas, at his expense, from

June 21, 1991, to the present time. During that time, Diane

contributed nothing to their support. By paying for their support

directly, Thomas substantially complied with his obligations

established in the California order. To hold that Diane can come

back and collect further support from Thomas for a substantial

period of time during which she expended nothing for support of her

children not only ignores reality, it ignores our prior decisions

on this subject and our obligation to accomplish equity in

dissolution and support proceedings. For these reasons, I dissent

from the majority opinion. It is this kind of blind adherence to

technicality that breeds disrespect for the law. I would reverse

the order of the District Court and conclude that Thomas owed no

support to Diane from June 21, 1991--the date on which he assumed

custody of, and the responsibility for the actual support of, his

children.

Jus ice

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