CAMPBELL v JENNE

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No. 13409 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 DIANE V. CAMPBELL, formerly DIANE V. JENNE, Plaintiff and Petitioner, SHERMAN G. JENNE, Defendant and Respondent. Appeal from Fourth Judicial District Court Honorable E. Gardner Brownlee, Judge Presiding. Counsel of Record: For Appellant: Milodragovich, Dale & Dye, Missoula Harold V. Dye argued, Missoula, Montana For Respondent: Douglas G. Harkin, Co. Atty., Hamilton Douglas G. Harkin argued, Hamilton, Montana -- Submitted: Decided: Filed: &PR d 9 ;9T/ January 17, 1977 APR 2 9 1 7 F 9; Mr. Justice Frank I. Haswell delivered the Opinion of the Court. In an action by the mother of two minor children to enforce a $100 monthly child support award in a 1967 Nevada divorce decree, the district court of Missoula County held that the Nevada award was modified by later support orders of $40 monthly in a 1969 Idaho Uniform Reciprocal Enforcement of Support Act proceeding and in a 1973 Montana Uniform Reciprocal Enforcement of Support Act proceeding and computed the arrearage accordingly. The mother appeals. The parties were married on September 1, 1961. children were born as issue of the marriage: Two Sherman William Jenne, born May 3, 1962 and Marjorie Jane Jenne, born October 17, 1964. Respondent father, Sherman G. Jenne sued appellant mother for divorce in Nevada and the mother was personally served with summons outside the state of Nevada. On February 11, 1967, a Nevada district court granted the father a default divorce, awarded custody of the two minor children to the mother, and ordered the father to pay $100 per month child support to the mother. In 1969 an action by the mother against the father, under the URESA came before the district court of Kootenai County, Idaho. The mother did not appear personally but was represented by the prosecuting attorney while the father appeared personally without an attorney but representing himself. The father testified and was examined by the prosecuting attorney and by the court. On March 7, 1969, the Idaho district court entered an order that the father pay the mother $40 monthly as child support. The 1967 Nevada decree awarding $100 monthly child support was not mentioned in the Idaho order. In 1973 a URESA action by the mother against the father came before the district court of Missoula County, Montana. The mother was r e p r e s e n t e d by t h e d e p u t y c o u n t y a t t o r n e y and t h e f a t h e r a p p e a r e d p e r s o n a l l y and by h i s a t t o r n e y . father testified. The On September 1 7 , 1973, t h e Montana d i s t r i c t c o u r t entered an "order of support" r e q u i r i n g t h e f a t h e r t o pay $40 monthly c h i l d s u p p o r t t o t h e c l e r k o f c o u r t t o b e t r a n s f e r r e d t o t h e c l e r k o f c o u r t i n Kootenai County, I d a h o , f o r c r e d i t t o h i s a c c o u n t t h e r e under t h e Idaho URESA a c t i o n . No mention was made o f t h e p r i o r Nevada s u p p o r t award o f $100 monthly. T h e r e a f t e r t h e mother commenced a c i v i l a c t i o n i n t h e d i s t r i c t c o u r t o f M i s s o u l a County, Montana, t o e n f o r c e t h e 1967 Nevada s u p p o r t award of $100 monthly. The f a t h e r c o u n t e r c l a i m e d f o r c u s t o d y o f t h e minor c h i l d r e n b u t d i d n o t r e q u e s t m o d i f i c a t i o n of t h e 1967 Nevada c h i l d s u p p o r t award. The c a s e was s u b m i t t e d on s t i p u l a t e d f a c t s and t h e c a l c u l a t i o n s o f e a c h p a r t y c o n c e r n i n g t h e amount of c h i l d s u p p o r t a c t u a l l y p a i d by t h e f a t h e r s i n c e t h e Nevada d e c r e e , which d i f f e r e d o n l y t o t h e e x t e n t o f $100. On May 4 , 1976, t h e d i s t r i c t c o u r t g r a n t e d judgment t o t h e mother i n t h e amount o f $2,400, t h e a r r e a r a g e due a s computed by t h e f a t h e r . In effect, the d i s t r i c t court h e l d t h a t t h e Nevada award had been m o d i f i e d and reduced by t h e l a t e r o r d e r s i n t h e Idaho and Montana URESA a c t i o n s . The mother a p p e a l s , c o n t e n d i n g t h e d i s t r i c t c o u r t e r r e d i n d e t e r mining s u c h m o d i f i c a t i o n and r e d u c t i o n . The u n d e r l y i n g i s s u e on a p p e a l i s whether t h e Nevada d e c r e e awarding t h e mother $100 monthly c h i l d s u p p o r t was modif i e d and reduced by t h e l a t e r s u p p o r t o r d e r s of t h e I d a h o and Montana c o u r t s i n t h e URESA a c t i o n . The Nevada c o u r t had p e r s o n a l j u r i s d i c t i o n o v e r t h e f a t h e r and j u r i s d i c t i o n of t h e s u b j e c t m a t t e r . Its decree grant- i n g a d i v o r c e t o t h e f a t h e r , c u s t o d y of t h e minor c h i l d r e n t o t h e mother, and o r d e r i n g t h e f a t h e r t o pay $100 monthly c h i l d support was valid in Nevada. Accordingly, the Nevada decree is entitled to full faith and credit in the courts of Idaho and Montana. Art. IV, Sec. 1, United States Constitution; Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L Ed 279; Corkill v. Cloninger, 153 Mont. 142, 454 P.2d 911. The Nevada child support award was not modified by the 1969 URESA child support order of the Idaho court. At that time the original URESA was in effect in Idaho which specifically provided : "No order of support issued by a court of this state when actinq as respondinq state shall supersede any other order of support but the amounts for a particular period paid pursuant to either order shall be credited against the anount accruing or accrued for the same period under both." (Emphasis added.) Section 7-1075, Idaho Codes. The Idaho Supreme Court specifically held that under the original URESA the original divorce decree was not modified: "The Uniform Reciprocal Enforcement of Support Act, Chapter 10, Title 7, I.C. provides an auxiliary or supplemental remedy for the enforcement of orders of support. It is, of course, true that the amount of the payments ordered by the court of the responding state is influenced by the ability of the husband at that time to pay, but the authority of the court originally ordering payment is not affected or is its order modified by an order of the court of the responding state fixing another or different sum. (Emphasis added.) Despain v. Despain, 78 Idaho 185, 300 P.2d 500, cited with approval in Howard v. Howard, (Miss. 1966), 191 S.2d 528; Oglesby v. Oglesby, 29 Utah 2d 419, 510 P.2d 1106. Nor was the 1967 Nevada child support award modified by the 1973 URESA child support order of the Montana court. At that time the original URESA provision had been repealed in Montana and the following provision enacted: "A support order made by a court of this state pursuant to this act does not nullify and is not nullified by a support order made by a court of this state pursuant to any other law or by a support order made by a court of any other state pursuant to a substantially similar act or any other law, regardless of priority of issuance, unless otherwise specifically provided by the court." (Emphasis added.) Section 93-2601-71, R.C.M. 1947. URESA support orders that do not refer to prior support awards do not modify them. In accord: Banton v. Mathers, (1nd.App. 3rd Dist. 1974), 309 N.E.2d 167; Craft v. Hertz, (N.D. 1970), 182 N.W.2d 293. Thus, the 1967 Nevada decree ordering the husband to pay $100 per month child support remained valid and unmodified and was entitled to full faith and credit by the courts of Montana. The contentions of the husband that because the Nevada court had continuing jurisdiction to modify its child support order, Montana courts possessed reciprocal and continuing jurisdiction to do likewise and did in fact exercise its jurisdiction by reducing the amount of support owed is rejected as contrary to the facts. The Montana court could have done so by a specific provision to that effect in its order but did not do so as that question was neither litigated nor decided. The order of the Montana court made no reference to the Nevada decree and did not purport to modify it. The judgment of the district court is reversed. Judg- ment is entered for plaintiff and appellant Diane J. Campbell in the amount of $7,540, representing the arrearage under the Nevada decree. Justice

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