NO. 89-185 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

IN RE THE MARRIAGE OF 

DAVID L. McFATE, 

petitioner and Respondent, 

and 

ROBERTA L. McFATE , 

Respondent and Appellant. 

0 s 

APPEAL FROM: ~istrict Court of the ~hirteenth ~uclicial %stris, 

In and for the County of Yellowstone, YJ 

The Honorable Russell ~illner, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Joan Meyer Nye; Nye & Meyer, Billings, Montana 

For Respondent : 

~evin T. Sweeney; Sweeney & Healow, ~illin~s, Montana 

Filed: 

Submitted on Briefs: Aug. 3, 1989 

Decided: October 25, 1989 
Justice William E. Hunt, Sr. delivered the Opinion of the 

Court. 

Appellant, Roberta L. McFate, appeals from an order of 

the ~hirteenth Judicial District Court, Yellowstone County, 

denying her motion to modify the parties' decree of 

dissolution to require respondent, avid R. McFate, to pay 

support for the parties' adult children. We affirm. 

The sole issue raised on appeal is as follows: 

When a motion for modification of child support is 

brought after a child turns 18 years old, does the district 

court have jurisdiction to modify the decree of dissolution 

to require child support to continue past the age of 18 if 

the separation agreement incorporated into the original 

decree provides that support shall terminate once the child 

reaches the age of majority or is otherwise emancipated? 

At the time of the dissolution of the marriage of 

Roberta and David McFate, the parties' twin son and daughter 

were 12 years old. The dissolution decree awarded custody of 

the two children to the mother and required the father to pay 

child support as follows: 

That petitioner [father] shall pay respondent 

[mother] the sum of ONE HUNDRED & N0/100THs DOLLARS 

($100.00) per month per child for the support, 

maintenance and education of the minor children of 

the parties until three years from the date of this 

decree, at which time said amount is increased by 

TWENTY-FIVE DOLLARS ($25.00) per month per child. 

In addition to the foregoing provision for monthly 

support payments, the parties' separation agreement, which 

was incorporated into the decree, provided that support would 

"continu[e] until said minor children reach the age of 

majority or are otherwise emancipated." 
On November 18, 1988, the twins turned 18. Both were in 

high school at the time, one a senior and the other a junior. 

After the children's birthday, the father remitted the child 

support payment for November, 1988, prorating the payment 

through November 19, 1988. The father indicated that the 

prorated November payment would be his final remittance. He 

has not made any support payments since. 

On January 31, 1989, the mother filed a motion to 

clarify and modify child support, requesting the District 

Court to (a) require that the father's child support 

obligation for each child continue through June of each 

child's graduation from high school; (b) require the father 

to pay necessary dental work of the children; and 

(c) increase the amount of child support. After a hearing, 

the District Court denied the motion, concluding that the 

court lacked jurisdiction to modify the decree. The wife 

appealed. 

The statute governing modification and termination of 

support provides as follows: 

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 . . . 

section 40-4-208(5), MCA. 

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.2d 148, 150. Once the party who 

owes the duty of support fulfills that obligation according 

to the terms of the agreement or the decree, the district 

court loses jurisdiction over the matter and can no longer 

entertain motions for modification or continuation of 

support. 

The mother points to our decision in In re the ~arriage 

of Bowman (1987), 226 Mont. 99, 734 P.2d 197, as authority 

for the proposition that the jurisdiction of the trial court 

continues beyond the age of majority. In Montana, the age of 

majority is 18. section 41-1-101, MCA. It is true that in 

Bowman we recognized the district court's authority to order 

child support to continue past the age of majority. However, 

such authority exists only if the district court already has 

jurisdiction over the matter. In Bowman, the parties 

executed a separation agreement providing support for the 

couple's youngest son. The agreement was to remain in effect 

until replaced by other formal legal documents. This 

agreement gave the trial court the jurisdiction to order the 

father to pay support even though the child was 18 at the 

time of trial. 

In the present case, the separation agreement 

incorporated into the dissolution decree did not give the 

District Court jurisdiction to consider questions concerning 

child support after the children turned 18. To the contrary, 

the agreement specifically provided that support payments 

would terminate when the twins reached the age of majority. 

This provision divested the ~istrict Court of jurisdiction to 

modify child support after the twins attained the age of 18. 

On appeal, the mother raises several constitutional 

questions, including equal protection of the law and equality 

of educational opportunity. his Court reserves the right to 
examine constitutional issues involving broad public concerns 

that affect the substantial rights of a litigant even if the 

questions are raised for the first time on appeal. Cottrill 

v. cottrill Sodding Serv. (Mont. 1987), 744 P.2d 895, 896, 44 

St-Rep. 1762, 1763. In this case, however, we decline to 

address the mother's constitutional issues. We base our 

refusal to examine these issues on the fact that the mother 

merely raises the questions in a conclusory manner; she fails 

to argue them. It is the duty of the parties to brief and 

argue the issues they raise. his Court is not obligated to 

make their arguments for them. 

~f f irmed. 

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