Kenck v. CSED Fleming , 373 Mont. 168 ( 2013 )

December 31 2013
DA 13-0174
IN THE SUPREME COURT OF THE STATE OF MONTANA
2013 MT 380CHRISTOPHER R. KENCK,
Plaintiff and Appellant,
v.
STATE OF MONTANA, CHILD SUPPORT
ENFORCEMENT DIVISION and LORI
FLEMING, an individual, and JOHN DOES 1-5,
Defendants and Appellees.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DV 11-0650
Honorable Gregory R. Todd, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
J. Gregory Tomicich; Tomicich Law Office; Billings, Montana
For Appellees:
Timothy C. Fox, Montana Attorney General; Thomas G. Bowe, Assistant
Attorney General; Helena, Montana
Submitted on Briefs: November 5, 2013
Decided: December 31, 2013
Filed:
__________________________________________
Clerk
Justice Patricia Cotter delivered the Opinion of the Court.
¶1 Christopher Kenck appeals the Order of the Thirteenth Judicial District Court
dismissing his action against the State of Montana, Child Support Enforcement Division
(CSED). We affirm and remand for further proceedings.
¶2 After years of complying with his monthly child support obligation, Kenck, who
was serving in the U. S. military, agreed via counsel to an increase in his monthly support
obligation. The increase was applied retroactively to the date the request for an increase
was filed by the child’s mother, creating an administrative arrearage of several months in
Kenck’s account. Kenck arranged to pay off the arrearage with increased deductions
from his military pay. Nonetheless, CSED reported the arrearage to the national
consumer credit reporting agencies.
¶3 Upon completing active duty with the U. S. Air Force (USAF), Kenck was
provisionally hired by U. S. Department of Homeland Security but the offer of
employment was withdrawn when TSA discovered the credit report indicating that
Kenck’s child support was delinquent. After other prospective law enforcement
employers cited the same reason for rejecting him as an otherwise qualified candidate,
Kenck filed this action against CSED and Lori Fleming, regional manager for the Billings
CSED office, for its erroneous report to the credit agencies. The District Court dismissed
all claims against CSED and Fleming under M. R. Civ. P. 12(b)(6) (Rule 12(b)(6)).
Kenck appeals.
ISSUES
¶4 A restatement of the dispositive issue on appeal is:
2
¶5 Did the District Court err in dismissing Kenck’s claims against CSED and
Fleming?
FACTUAL AND PROCEDURAL BACKGROUND
¶6 Christopher Kenck is the biological father of a child born in May 2003. Shortly
after the child’s birth, Kenck joined the United States Air Force and regularly sent money
to the child’s mother for support. In June 2004, the couple split and in September 2004,
CSED established a child support account for Kenck and ordered him to pay $186/month
in child support. Kenck agreed and provided CSED with the necessary information to
allow the military to withhold child support payments from his military wages. This
State-calculated monthly support amount was slightly higher than the amount Kenck had
been paying; therefore, the retroactive application of the new amount caused an
administrative arrearage that Kenck paid. Kenck also put the child on his military
medical insurance plan. There is nothing in the record to suggest Kenck was ever late
with his payments. To the contrary, he has consistently provided monthly support for his
child—even at times when he was not under a State order.
¶7 In March 2008, the child’s mother petitioned the State for a child support increase.
Kenck, who was serving in Iraq at the time, was not notified of the requested increase in
support until a later date. However, in August 2008 when Kenck was stateside on leave,
he went to the Billings CSED office and, without objection, accepted service of the
modification request. Following an October 2008 administrative hearing in which Kenck
was represented by counsel, CSED raised Kenck’s monthly child support obligation from
$186/month to $458/month. The State retroactively applied the increased obligation
3
which resulted in an administrative arrearage of approximately $1,200 in Kenck’s child
support account. Again Kenck paid the increased monthly payments directly from his
military wages. He also agreed to pay off the administrative arrearage in accordance with
State law by paying 1/24 of the debt per month.1 There was no discussion at the
administrative hearing of CSED notifying the national credit reporting agencies of the
arrearage. However, CSED subsequently reported the arrearage in his account to the
consumer credit reporting agencies, listing it as a bad debt and delinquent child support.
Kenck acknowledges that around this time, he received a notice letter from CSED that he
did not fully understand, but he did not follow up with the agency.
¶8 Kenck completed his active duty service on July 7, 2009, and moved to
Washington, where he joined the Washington Air National Guard. Shortly thereafter he
obtained a copy of his credit report and discovered the entry of the child support
delinquency. Kenck contacted CSED and verbally contested the accuracy of the
delinquency reporting. Subsequently, and with the assistance of his counsel, he obtained
a letter from CSED’s Legal Services Bureau Chief dated August 3, 2009. In this letter,
CSED’s attorney explained that Kenck’s arrearage “arose by reason of law” and that
Kenck had “faithfully” paid his child support obligation. The letter further stated that the
arrearage “was not caused by any failure of Mr. Kenck to pay his ordered child support
obligation,” and that Kenck was “retiring” the arrearage by monthly payments of 1/24th
of the total “in accordance with Montana law.” CSED’s legal counsel also agreed to take
1
Section 40-5-309(1)(a)(i)(B), MCA, requires that an outstanding child support debt be paid
within 24 months.
4
steps in an effort to have the delinquency removed from the consumer reporting agencies’
records. Either no such steps were taken or they were unsuccessful.
¶9 Subsequently, believing the matter was resolved, Kenck sought employment with
U. S. Department of Homeland Security as a TSA agent in Washington. After passing
the necessary tests and being provisionally hired, TSA withdrew its offer of employment
based upon a credit report indicating that Kenck’s child support was in arrears. He was
also told by recruiters from the Seattle Police Department and other local agencies that
delinquent child support was an automatic disqualification for employment. Kenck
subsequently filed this action against CSED and CSED’s Billings’ office regional
manager, Lori Fleming.
¶10 Kenck asserted both federal and state claims against CSED and Fleming. He
argued that the agency’s reporting to the credit agencies of an arrearage that arose
through no fault of his own and resulted in the denial of employment opportunities with
governmental law enforcement agencies was a violation of his federal rights under 42
U.S.C. § 1983. He also claimed CSED violated certain mandatory provisions of the
Servicemembers Civil Relief Act (SCRA), 50 U.S.C. app. §§ 501-597.
¶11 Kenck further alleged under common law that CSED defamed him, acted with
malice, invaded his privacy by placing his child support payment history in a false light,
and intentionally and negligently inflicted emotional distress upon him. He also claimed
CSED violated his State constitutional rights provided in Article II, sections 10, 17 and
35.
5
¶12 The District Court, in an Order dated December 27, 2012, dismissed Fleming from
the action holding that she had statutory immunity from liability arising from actions
taken during the course and scope of her employment. Relying on Rule 12(b)(6), the
court also dismissed all of Kenck’s claims against CSED with the exception of his claim
that CSED violated the SCRA. The court requested additional briefing on this issue and
then dismissed it as well. Kenck appeals these rulings.
STANDARD OF REVIEW
¶13 A district court’s decision to dismiss a complaint under Rule 12(b)(6) is reviewed
as an issue of law to determine whether it is correct. This Court will construe the
complaint in a light most favorable to the plaintiff, deeming all factual allegations to be
true. This Court will affirm the dismissal only if it finds that the plaintiff is not entitled to
relief under any set of facts that could be proven in support of the claims. Fellows v.
Office of Water Comm’r, 2012 MT 169, ¶ 11, 365 Mont. 540, 285 P.3d 448.
DISCUSSION
¶14 Did the District Court err in dismissing Kenck’s claims against CSED and
Fleming?
¶15 This case is complicated and confounded by the interplay of state and federal child
support statues and guidelines, state and federal credit reporting statutes, and lastly by the
fact that Kenck was serving in the United States military at the time his arrearage was
reported by CSED to credit reporting agencies, thus invoking the provisions of the
SCRA.
6
¶16 On appeal Kenck asserts the District Court erred in concluding: (1) he was
“delinquent” in his child support obligation; (2) he had no private right of action for
violations under SCRA; (3) that violation of the SCRA was not a violation of a federal
right for purposes of 42 U.S.C. § 1983; and (4) his state constitutional claims were
preempted by the Fair Credit Reporting Act (FCRA). Kenck also argues that the District
Court erred by not viewing his Complaint in a manner most favorable to him as required
by Rule 12(b)(6).
“Delinquent” child support
¶17 Kenck argued to the District Court and to this Court on appeal that despite the
existence of an administrative arrearage, he was not delinquent in his child support.
Consequently, CSED should not have reported him to the credit reporting agencies or
seized his income tax refund. The District Court concluded, based upon applicable
federal statutes, that Kenck’s administrative arrearage constituted “overdue support” and
CSED was authorized to report this to the credit reporting agencies under 15 U.S.C.
§ 1681s-1 and § 40-5-261, MCA.
¶18 As noted above, when CSED increased Kenck’s monthly child support obligation,
it imposed the increased obligation retroactively creating an immediate administrative
arrearage of approximately $1,200 in Kenck’s account. Kenck acknowledges the
agency’s right to impose the increased amount retroactively under § 40-5-226(3)(c),
MCA. Kenck also does not dispute that CSED has the authority to report child support
account information to national consumer reporting agencies. Specifically, § 40-5-
261(1), MCA, authorizes the department to “make information about a support debt
7
available to consumer reporting agencies . . . upon request.” Kenck argues, however,
that an administrative arrearage is not a delinquency. He maintains that by voluntarily
reporting his arrearage to credit agencies—which arrearage was construed by prospective
employers as a delinquency—CSED effectively destroyed his prospects of being
employed by any governmental agencies.
¶19 As the District Court correctly observed,
Montana’s Child Support Enforcement Program is rooted in federal law,
specifically Subchapter IV, Part D of the Social Security Act. 42 U.S.C.
§ 666(a)(7)(A) specifically requires the State to periodically report the
names of noncustodial parents who are delinquent in the payment of their
support and the amount for which they are overdue.
CSED is therefore obligated “to report periodically to consumer reporting agencies . . .
the name of any noncustodial parent who is delinquent in the payment of support, and the
amount of overdue support owed by such parent.” 42 U.S.C. § 666(a)(7)(A) (emphasis
added). Moreover, under 15 U.S.C. § 1681s-1 of the FCRA, a credit bureau is required to
include in credit reports information about “overdue” child support furnished by a State
child support enforcement agency. There is thus no question that CSED has the authority
and the obligation to report child support delinquencies and that credit bureaus are
required to report such delinquencies. However, the question remains whether Kenck’s
administrative arrearage constitutes a delinquency or “overdue” child support.
¶20 While Montana’s child support enforcement statutes do address the concept of an
“arrearage,” (see e.g., § 40-5-271(3)(c)(i), MCA, and § 40-5-601(6) and (7)(a), MCA),
the statutes do not define this term. The term “delinquency” is defined in § 40-5-701(2),
MCA, as “a support debt or support obligation due under a support order in an amount
8
greater than or equal to 6 months’ support payments as of the date of service of a notice
of intent to suspend a license.” However, this definition is pinned to proceedings that are
commenced to suspend a license for nonsupport. Moreover, the federal statutes set forth
in the Social Security Act that govern child support payments provide no definition of
“delinquent” or “delinquency.” There is thus surprisingly little statutory guidance on
whether an arrearage created by imposition of a retroactive increase in support should
properly be construed or reported as overdue child support or a child support
delinquency, nor has this Court squarely addressed the issue. We therefore look first to a
Montana District Court decision and then to federal and other state jurisdictions for
guidance.
¶21 In Albright v. Bemis, 1996 Mont. Dist. LEXIS 732, Bemis was ordered by the
State of Idaho in September 1994 to pay $166/month in “current” monthly child support
beginning December 1993. The Idaho court also ordered Bemis to pay an additional
$17,124 (“retroactive child support”) in back child support for the period of time between
the child’s birth in December 1983 and December 1993 when the “current” obligation
was established.2 Albright, 1996 Mont. Dist. LEXIS 732.
¶22 In February 1995, the Montana district court ordered that Bemis pay his current
child support and a portion of his retroactive child support through monthly income
deductions. The court determined that Bemis should pay 25% of his monthly income
toward child support—$166 would be applied to his current obligation and the balance of
the amount paid would be applied to the retroactive amount due. Albright challenged this
2
The parties disputed whether the father knew of the child’s birth before July 1989.
9
ruling, arguing that Bemis should pay $166/month for current child support and
$713.50/month in “delinquent child support” in order to pay the delinquent debt in full
within 24 months in accordance with § 40-5-309(1)(a), MCA (1995). The district court
disagreed, stating:
[T]his Court determines that [Albright] mis-characterized in her
Petition the $ 17,124.00 child support for 1983 through 1993 as
“delinquent” or “past due” child support, when in fact the amount
represents “retroactive” child support dating back to the time of the child’s
birth in December 1983. . . . Prior to the date of the Idaho judgment, there
was no Court ordered child support obligation for the years 1983 through
1993, and [Albright’s] characterization of the judgment amount of
$ 17,124.00 as “delinquent” or “past due” child support is neither factually,
nor legally, sustainable. Rather, the judgment amount of $ 17,124.00
represents “retroactive” child support which did not become due and
payable until awarded by the Idaho Court in September 1994, and Sec. 40-
5-309(1)(a)(ii), MCA, mandating that any delinquent child support must be
paid off within two years does not apply.
Albright, 1996 Mont. Dist. LEXIS 732. Albright is instructive because the court
recognized a distinction between “delinquent” and “retroactive” arrearages. Kenck,
unlike Bemis, agreed to and did pay off his “retroactive” arrearages within 24 months and
he does not appeal CSED’s imposition of the deadline set forth in § 40-5-309, MCA.
¶23 Other courts have recognized a similar distinction between “delinquent” and
“arrearage.” In Gladysz v. King, 658 N.E.2d 309 (Ohio App. 2nd Dist. 1995), superceded
by statute as stated in Turner v. Burley, 2005 Ohio App. LEXIS 723 (Ohio App. 10th
Dist. 2005), the Ohio court concluded:
We believe that CSEA’s [Child Support Enforcement Agency]
argument misconstrues the past-due support obligation to which the federal
program applies. Section 644(c)[3], Title 42, U. S. Code defines “past-due
3
This is an incorrect statutory reference. The correct reference is Title 42 U.S.C. § 664(c).
10
support” as “the amount of a delinquency.” As applied to a debt or claim,
“delinquent” means simply “due and unpaid at the time appointed by law or
fixed by contract; as, a delinquent tax.” Black’s Law Dictionary (5
Ed.1979), at 385. Thus, a delinquency is created by a default in
performance, not merely by the existence of an outstanding debt. An
arrearage for purposes of Ohio Adm. Code Chapter 5101:1-30, therefore,
is the amount of a delinquency resulting from the failure of an obligor to
pay an amount when it is due according to the terms of a child support
order, not simply the amount of a child support debt outstanding.
Gladysz, 658 N.E.2d at 312.
¶24 In Dep’t. of Revenue v. Cessford, 100 So. 3d 1199 (Fla. Dist. Ct. App. 2nd Dist.
2012), the court considered the correctness of the Department of Revenue’s (DOR)
interception of Cessford’s federal tax refund to apply to a child support obligation that
had been imposed retroactively to the child’s birth. The court order obligating Cessford
to pay child support indicated that the retroactive portion of his monthly obligation would
be satisfied by paying an additional $30/month. Cessford, 100 So. 3d at 1201. DOR
subsequently intercepted Cessford’s tax refund and applied the refunded amount of
$4,089 to his $5,678 retroactive arrearage. Cessford challenged the DOR and both an
administrative officer and the trial court ruled in his favor. Cessford, 100 So. 2d at 1201.
DOR appealed. In affirming the trial court, the Florida Court of Appeals explained:
The trial court found that the administrative order of support merely
determined a retroactive child support amount and that Cessford was not
delinquent in the payment of any court-ordered support. The court further
ruled that Cessford was “not in arrears and is not delinquent” and noted that
“[t]he establishment of retroactive support is not intended to establish
arrears, nor is it properly considered a delinquency.”
Cessford, 100 So. 2d at 1201. DOR was required to reimburse Cessford.
11
¶25 Lastly, in Laub v. Zaslavsky, 534 A.2d 1090 (Pa. Super. 1987), the Pennsylvania
court was asked to review whether the IRS Intercept Unit for Philadelphia County
correctly intercepted Zaslavsky’s federal tax return to apply to “past-due support” as that
term is defined in 42 U.S.C. § 664(c). After restating the applicable federal law sections
and looking to both Black’s and Webster’s dictionaries, the court turned to cases in the
federal courts that had dealt with the federal intercept program to collect delinquent child
support. The court concluded, “We share the view reflected by these federal tribunals
and conclude that the federal intercept program does not encompass situations where a
parent has continually complied with his child support obligation, but where, nonetheless,
arrearages are created as a result of the retroactive effect of an order of support.” Laub,
534 A.2d at 1093.
¶26 We are persuaded by these cases and the reasoning set forth in them. The District
Court in the case before us relied upon the definition of “overdue support” codified at 42
U.S.C. § 666(e), to conclude that Kenck was delinquent in the payment of child support.
That definition begins with the phrase “overdue support means the amount of a
delinquency . . . .” (Emphasis added by this Court.) As the above cases reflect, not all
past due child support constitutes a “delinquency” on the part of the obligor. As was the
case here, Kenck’s arrearage was the result of an agreement to pay a higher amount of
child support to his son retroactive to the date of the child’s mother’s petition for
modification. Kenck timely paid these arrearages pursuant to the provisions of § 40-5-
309(1)(a)(i)(B), MCA. We conclude this arrearage does not constitute a delinquency or
overdue child support, and the District Court erred in concluding otherwise. Having so
12
concluded, however, we are nonetheless unfortunately constrained to uphold the
dismissal of Kenck’s Complaint.
¶27 Section 40-5-261, MCA, sets forth the procedures under which CSED makes
information available to consumer reporting agencies. According to Subsection (1), “the
Department may make information about a support debt available to consumer reporting
agencies . . . upon request.” The section further provides that the Department shall
provide advance notice to the obligor concerning the proposed release of information, but
that “lack of actual notice does not preclude the release of information to consumer
reporting agencies.” Subsection (2) provides that “[i]f contacted by an obligor wishing to
contest the accuracy of information proposed for release to consumer reporting agencies,”
CSED must conduct a review or a hearing to reevaluate the accuracy of the information.
Kenck does not contest that while on active duty he received a notice from CSED of its
intent to report his arrearage to credit reporting agencies. Unfortunately, there is no
allegation by Kenck nor is there any evidence in the District Court record that Kenck
timely contacted CSED after receiving such notice, challenging the action or requesting a
hearing. Consequently, Kenck did not avail himself of the statutory and administrative
processes for challenging this action by CSED.
¶28 It is well established that “no one is entitled to judicial relief for a supposed or
threatened injury until the prescribed administrative remedy has been exhausted.” The
purpose of this “exhaustion doctrine” is to “allow a governmental entity to make a factual
record and to correct its own errors within its specific expertise before a court interferes.”
Shoemaker v. Denke, 2004 MT 11, ¶ 18, 319 Mont. 238, 84 P.3d 4. Because this
13
procedural bar would preclude Kenck from pursuing further legal action against CSED
for reporting his arrearage to credit reporting agencies, we decline to remand his
complaints against CSED concerning this report. As Kenck could not prevail on his
claim that CSED erroneously reported his arrearage as delinquent if the matter was
remanded for trial, we decline to remand.
Private right of action under SCRA
¶29 Kenck asserts that the District Court erred in rejecting his private right of action
under SCRA. We conclude that whether or not a private right of action under the SCRA
would exist in this case—in itself a complicated question—Kenck would nonetheless be
procedurally precluded from pursuing his claims under this Act. 50 U.S.C. app. § 521 of
SCRA (upon which Kenck relies) provides specific methods for servicemembers to
challenge, vacate or have default judgments set aside. Kenck received notice of CSED’s
intent to report his arrearage to the consumer credit agencies shortly after the October
2008 hearing at which he was represented by counsel. As noted above, he did not timely
protest this action. Kenck obtained a credit report shortly after being discharged from the
USAF on July 7, 2009. The credit report revealed that his arrearage had been reported as
a “delinquency.” At that time, he visited the Billings CSED office and verbally protested
the accuracy of the report, and his counsel requested a written clarification on Kenck’s
payment record and the administrative arrearage from CSED counsel. The agency’s
attorney agreed and issued a written statement as discussed in ¶ 8 above. However, it
does not appear that Kenck knew or was informed that under 50 U.S.C. app. § 521(g)(1)
and (2) of the SCRA, he could file an application within 90 days of his discharge from
14
active service to have the default judgment vacated or set aside. It is undisputed that
Kenck did not file such an application. As discussed above, Kenck’s failure to avail
himself of the prescribed method for obtaining a remedy unfortunately precludes him
from doing so now.
42 U.S.C. § 1983 claim
¶30 Kenck conceded earlier in the proceeding that his § 1983 claim against CSED
should be dismissed as CSED is not a “person” for purposes of § 1983. To the extent he
claims his § 1983 claim vis-à-vis Fleming should not have been dismissed, Kenck fails to
present a legal argument as required by M. R. App. P. 12(1)(h) (Rule 12). Rule 12 states
that an appellant must set forth in his or her brief “the contentions of the appellant with
respect to the issues presented, and the reasons therefor, with citations to the authorities,
statutes, and pages of the record relied on.” We have held that we will not consider
unsupported issues or arguments, and that failure to comply with the rules of appellate
procedure is fatal to an appeal; therefore, we decline to further address Kenck’s § 1983
claim against Fleming. In re Marriage of McMahon, 2002 MT 198, ¶ 6, 311 Mont. 175,
53 P.3d 1266.
Fair Credit Reporting Act claim
¶31 Kenck claims that CSED’s report of his administrative arrearage to the consumer
credit reporting agencies violated his State Constitutional rights to privacy and due
process. Mont. Const. art. II, §§ 10, 17. He argues that these constitutional rights were
not preempted by FCRA as the District Court concluded.
15
¶32 As discussed above, while we agree that Kenck was not delinquent in his child
support, we conclude nonetheless that the provisions of FCRA preempt Kenck’s claim.
As noted above, states are required to report child support information to credit reporting
agencies. Section 40-5-261, MCA, and 42 U.S.C. § 666. FCRA mandates that consumer
credit reports include the child support information provided by the state agency. 15
U.S.C. § 1681s-1. Furthermore, FCRA protects reporting state agencies from liability.
15 U.S.C. § 1681h. Lastly, FCRA prohibits states from imposing state laws “relating to
the responsibilities of persons who furnish information to consumer reporting agencies”
with some inapplicable exceptions. 15 U.S.C. § 1681t. Given that these statutes occupy
the field from reporting to protection from liability, we conclude FCRA preempts
Kenck’s privacy claim. See Purcell v. Bank of Am., 659 F.3d 622 (7th Cir. 2011).
¶33 We now turn to Kenck’s claim that he was deprived of due process. Under both
federal and state jurisprudence the requirements for procedural due process are:
(1) notice, and (2) opportunity for a hearing appropriate to the nature of the case.
Montanans for Justice v. State, 2006 MT 277, ¶ 30, 334 Mont. 237, 146 P.3d 759. In the
case before us, Kenck acknowledged that he was given notice of CSED’s intention to
report his administrative arrearage to the consumer reporting agencies. Under both state
and federal law, Kenck had the opportunity at several junctures to timely challenge
CSED’s action but failed to do so. For these reasons, we conclude Kenck’s constitutional
procedural due process rights were not violated.
16
Rule 12(b)(6) dismissal of Kenck’s Complaint
¶34 Having reached the conclusions set forth above, we need not address Kenck’s
claim that the District Court erred in dismissing his Complaint by failing to view it in a
manner favorable to Kenck as required by Rule 12(b)(6).
¶35 While being bound by statutory and procedural bars to reach the conclusions we
do, we recognize the resulting injustice. A servicemember who has both an exemplary
record in the military and an exemplary record in his payment of child support has been
branded a “delinquent” obligor in the eyes of potential employers. Consequently, he has
lost significant career opportunities—opportunities that would have benefited his child as
well as himself. It appears that CSED had opportunities to help Kenck understand and
protect his rights but did not do so. For example, CSED could have implemented § 40-5-
262(3), MCA, allowing it to consider Kenck’s payment record, the availability of other
remedies and other matters relevant to determining whether to release the administrative
arrearage information to the credit reporting agencies. There is no evidence that it
considered this discretionary opportunity.
¶36 Moreover, Kenck visited the Billings CSED office within days of being
discharged from the USAF, contesting the characterization of his child support account as
delinquent and the reporting of his arrearage to the consumer reporting companies in the
first place. It does not appear that CSED assisted Kenck in understanding what steps he
could take to challenge the inaccurate report, nor did it advise him that such actions must
be taken within 90 days of his discharge.
17
¶37 We determined above that Kenck’s arrearage did not constitute a delinquency or
overdue child support. Opinion, ¶ 26. While we cannot resurrect Kenck’s claims for
damages, we can and do remand this matter to the District Court with instructions that it
direct CSED to provide notice of this Opinion to the credit reporting agencies to whom it
reported Kenck’s arrearage, with a request that said agencies remove from their data base
any and all reference to Kenck having been in arrears or delinquent in the payment of his
child support obligations. We further direct the District Court to monitor CSED’s
compliance with this directive, and ensure that Kenck’s counsel is copied with all
documents CSED submits to and receives from the credit reporting agencies in its efforts
to accomplish this objective.
¶38 Finally, it is evident that the problem we confront here is occasioned by the fact
that there is no distinction made in either the child support or reporting statutes between
arrearages and delinquencies. We therefore urge the legislature to address this statutory
shortcoming so as to ensure that in the future, an administrative arrearage created by
operation of law shall not be reported by CSED to consumer reporting agencies, nor shall
it be deemed as delinquent or overdue child support for any reporting purposes.
CONCLUSION
¶39 Affirmed and remanded.
/S/ PATRICIA COTTER
We concur:
/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ MICHAEL E WHEAT
/S/ JIM RICE
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