STATE v DAWSON
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No. 83-378 IN THE SUPREME COURT OF THE STATE OF MONTANA 1984 STATE OF MOIJTANA, Department of Revenue, Plaintiff and Appellant, -vsCHARLES DAWSON, Defendant and Respondent. APPEAL FROM: District Court of the Second Judicial District, In and for the County of Silver Bow, The Honorable Mark P. Sullivan, Judge presiding. COUNSEL OF RF,CORD: For Appellant: John C. Koch argued, Great Falls, Montana For Respondent: Daniel Sweeney argued, Butte, Montana Submitted: Decided: Filed: ~ f i i5' l 1934 Clerk December 5, 1983 January 5, 1984 Mr. J u s t i c e L.C. Court. This order Gulbrandson d e l i v e r e d appeal arises out a of temporary i s s u e d by t h e D i s t r i c t C o u r t o f District, Montana, Silver Bow C o u n t y , Department of account of t h e Opinion of restraining t h e Second J u d i c i a l restraining Revenue, the the State of f r o m l e v y i n g upon t h e bank C h a r l e s N e a l e Dawson. For the reasons stated below, w e r e v e r s e t h e o r d e r of t h e D i s t r i c t Court. The S t a t e o f Montana, an action decree to of enforce divorce the entered Department of child in support the Revenue, brought provisions District Court of of a the S e c o n d J u d i c i a l D i s t r i c t , S i l v e r Bow C o u n t y , on May 7 , 1 9 7 3 , dissolving Neale the Dawson, Roberta support. and marriage of Roberta awarding custody ordering Charles J o Dawson of to their pay The m a t t e r was h e a r d by Hon. on A p r i l 4 , $70 and minor per child month fact, child conclusions o f l a w and j u d g m e n t w h i c h p r o v i d e d : FINDINGS OF FACT " 1 . T h a t a d e c r e e o f d i v o r c e was f i l e d i n t h e Second J u d i c i a l D i s t r i c t i n and f o r t h e C o u n t y o f S i l v e r Bow i n May o f 1 9 7 3 , s t i p u l a t i n g seventy ($70.00) d o l l a r s per month, c h i l d s u p p o r t . "2. That t h e defendant is i n a r r e a r a g e s i n t h e amount o f $ 6 , 6 8 9 . 0 0 . is to J u d g e F r e e b o u r n and 1979, he e n t e r e d f i n d i n g s of "3. That defendant s u p p o r t payments. Charles unable to make CONCLUSION OF L W A "1. T h a t a d e c r e e o f d i v o r c e was f i l e d i n t h e Second J u d i c i a l D i s t r i c t i n and f o r t h e C o u n t y o f S i l v e r Bow i n May o f 1 9 7 3 , s t i p u l a t i n g seventy ($70.00) d o l l a r s p e r month c h i l d s u p p o r t . "2. T h a t t h e d e f e n d a n t i s i n a r r e a r a g e s i n t h e amount o f $ 6 , 6 8 9 . 0 0 . "3. T h a t d e f e n d a n t i s f i n a n c i a l l y u n a b l e t o meet a n y p a y m e n t s f o r h i s s u p p o r t order. U n t i l s u c h t i m e a s h e is a b l e t o d o s o , no f u r t h e r a c t i o n w i l l b e t a k e n . "LET JUDGMENT BE e n t e r e d conformance with the Conclusions. accordingly i n Findings and JUDGMENT "UPON SUBMISSION a n d f i l i n g o f the f i n d i n g s o f f a c t and c o n c l u s i o n s o f l a w i n t h e above e n t i t l e d m a t t e r , it is hereby adjudged, d e c r e e d and o r d e r e d t h a t CHARLES DAWSON, i s u n a b l e t o make c h i l d s u p p o r t p a y m e n t s , u n t i l s u c h time n o f u r t h e r a c t i o n w i l l be t a k e n . " On March 25, 1983, S t a t e was the issued writ a of e x e c u t i o n i n t h e amount o f $ 6 , 6 8 9 , t h e amount f o u n d by t h e D i s t r i c t C o u r t on A p r i l t o be 4, 1979, t h e accrued child On J u n e 7 , 1 9 8 3 , t h e S h e r i f f o f S i l v e r support arrearages. Bow C o u n t y l e v i e d upon and r e t u r n e d $2,363.29 of a $4,500 bank a c c o u n t b e l o n g i n g t o Dawson a n d h i s new w i f e . On J u n e , 24, 1983, petition for temporary S t a t e be restrained Dawson filed restraining an a f f i d a v i t order f r o m l e v y i n g o n h i s bank t e m p o r a r y r e s t r a i n i n g o r d e r and a n o r d e r issued by obtained District the by Court Sheriff's the asking the that account. a the A t o show c a u s e was same l e v y was and held day. in The trust money by the C l e r k of t h e D i s t r i c t C o u r t pending t h e h e a r i n g . The h e a r i n g was h e l d on J u l y 2 2 , 1983, the District Court held that 1983. the On J u l y 2 5 , State's writ of e x e c u t i o n w a s v o i d and t h e t e m p o r a r y r e s t r a i n i n g o r d e r was made permanent until a full and final conducted t o d e t e r m i n e what d e l i n q u e n c i e s , (Order, July 25, 1983.) In addition, hearing could be i f any, e x i s t e d . the Clerk of the D i s t r i c t C o u r t was o r d e r e d t o r e t u r n t h e f u n d s t o Dawson. On the same day, the State filed its notice of appeal and a motion for stay of the order pending the appeal. The motion for stay was denied. Initially, appellant asserts that the District Court erred in interpreting Judge Freebourn's April 4 , 1979 judgment as requiring additional findings before an execution for accrued child support could be permitted. The principle that child support installments past due and unpaid are not subject to modification is an old one in Montana law, having been articulated as early as Kelly v. Kelly (1945), 117 Mont. 239, 157 P.2d 780. However, it was our decision in Williams v. Budke (1980), 606 P.2d 515, 37 St.Rep. 228, that adopted the view that restrictions on the right to levy for accrued child support is an impermissible retroactive modification. In Williams, a former wife made a motion to show cause why her former husband should not have been adjudged guilty of contempt for failure to pay child support in accordance with a marriage dissolution decree. At the show cause hearing, the District Court denied the motion, found the husband delinquent in accrued child support payments and established a deferred payment schedule for the husband's delinquent child support obligations. The wife appealed, raising three issues, among them whether it was error not to hold the delinquent child support payable immediately and subject to enforcement by Williams, supra, 606 P.2d at 517. Court erred because schedule was entered in a the We held that the District the result of modification of District Court execution. the deferred the as to judgment payment previously the accrued child support payments, a violation of Section 40-4-208(1), MCA, which provides that, ". . . a decree may be modified by a court as to maintenance or support only as to installments accruing subsequent to the motion for modification." Respondent argues that the District Court's order was not a modification but, rather, a ruling in accordance with an earlier court decision that additional findings would have to be made that respondent was able to meet his child support obligations before any action could be taken on the arrearage owed. However, the practical effect of the order was to defer appellant's right to levy execution on accrued child support payments. modification and was This constituted erroneous. a retroactive In Williams, supra, we examined Webb v. Finger Contract Supply Co. (Tex. 1969), 447 S.W. 2d 906, 908 in determining that, has been defined as 'A change; ". . . an 'modification' alteration which introduces new elements into the details, or cancels some of them, but leaves the purpose and matter intact. ' " This was the Court's order of March 5, 1983. effect of the subject effect of the District Moreover, in Dahl v. Dahl (1978), 176 Mont. 307, 577 P.2d 1230, we pointed to Section 40-4-208(1), MCA, to the effect that a divorce decree cannot be modified to cancel past due and unpaid child support. We note here that, although the issue was not raised before the District Court or on appeal, Judge Freebourn's order of April 4, 1979, contained no monetary judgment. fact that appellant was The in arrearages in the amount of $6,689 was included in Judge Freebourn's findings of fact and conclusions of law but not in the judgment. We point this out to the State, so that in the future, appropriate judgments will be entered prior to the issuance of a writ of execution. In addition, respondent has contended that Social Security payments to the appellant should be used as an offset in determining support. the amount respondent owes for We have considered the argument but will not decide it at this time as the issue was never presented to the District Court for its consideration. Finally, we note that the duty to reduce or modify support and alimony payments remains on the spouse who is either unsatisfied or unable to make the payments. Daniels v. Daniels (1966), 147 Mont. 57, 409 P.2d 824. We reverse the decision of the District Court and deny respondent's request for costs and attorney fees. /" We concur: "ddA8 Chief Jhstice -
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