Marriage of Lee ( 1995 )

NO. 95-137
IN THE SUPREMECOURT OF THE STATE OF MONTANA
1995
IN RE THE MARRIAGE OF
CHARLES M. LEE,
Petitioner and Respondent,
and
APPEAL FROM: District Court of the Eighteen Judicial District,
In and for the County of Gallatin,
The Honorable Larry W. Moran, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Sarah Arnott Ozment, Attorney at Law, Livingston,
Montana
For Respondent:
Rienne H. McElyea; Berg, Lilly, Andriolo &
Tollefsen, Bozeman, Montana
Submitted on Briefs: September 7, 1995
Decided: September 26, 1995
Filed:
Justice W. William Leaphart delivered the Opinion of the Court
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1995 Internal Operating Rules, the following decision shall not be
cited as precedent and shall be published by its filing as a public
document with the Clerk of the Supreme Court and by a report of its
result to State Reporter and West Publishing Company.
Janet B. Lee appeals from the September El, 1993, Findings of
Fact and Conclusions of Law of the Eighteenth Judicial District
court, Gallatin County, incorporating an Administrative Child
Support Order. We affirm.
The following issue is raised on appeal:
Did the District Court err in applying § 40-5-227, MCA, when
it found that the Administrative Child Support Order could only be
modified as to installments accruing after a motion for
modification of child support has been made?
Janet B. Lee (Janet) and Charles M. Lee (Charles) were married
on September 1, 1979. Three children were born of the marriage.
Janet and Charles separated July 3, 1989. Shortly after their
separation, Janet applied for Aid to Families with Dependent
Children (AFDC) . When Janet applied for AFDC benefits, she also
signed a "Notice of Automatic Assignment of Rights" form.
Subsequently, the Department of Social and Rehabilitative Services
(SRS) brought an action against Charles to collect child support.
Charles and SRS entered into an Administrative Consent Order
obligating Charles to pay child support in the amount of $50 per
month per child. Pursuant to § 40-5-227, MCA, the Administrative
Order was filed in the Eighteenth Judicial District Court, Gallatin
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county. The Clerk of the District Court docketed the abstract of
the final Administrative Order.
On April 28, 1993, a hearing was held to determine the
parties' child support obligations. The court ordered the parties
to mediate the issue of child support from the month of May 1993
forward. The parties were unsuccessful in mediating the dispute.
As a result, the court ordered the parties to prepare position
papers on the issue of child support. In the December 3, 1994,
decree of dissolution of marriage, the District Court found that
pursuant to the Administrative Consent Decree Charles owed
$1,031.17 in child support arrearages through April 1993. The
District court ordered the parties to prepare child support
guideline affidavits to determine support from May 1993 forward.
In its order of December 21, 1994, the District Court found a
child support obligation of $101 per month per child from May 1993
to May 1994. From June 1994 to present, the court found the child
support obligation to be $154 per month per child. The District
Court did not alter the Administrative Consent Order for the period
before the April 28, 1993, hearing. Thereafter, Janet filed the
instant appeal seeking to recover additional child support for the
entire period during which the Administrative Consent Order was in
effect; that is, retroactive to the date of separation.
The standard of review we apply for a child support award is
whether the district court abused its discretion. In re Marriage
of D.F.D. and D.G.D. (1993), 261Mont. 186, 203, 862 P.2d 368, 378.
This appeal is based on the application of 5 40-5-227, MCA.
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Section 40-5-227, MCA, provides:
Filing and docketing of final orders -- orders
effective as district court decrees. (1) An abstract of
any final administrative order under this chapter may be
filed in the office of the clerk of the district court of
any county of Montana. The order, if approved, must be
docketed in the judgment docket of the district court.
The properlv filed and docketed order has all the force,
effect, and attributes of a docketed order or decree of
the district court, including but not limited to lien
effect and enforceability by supplemental proceedings,
writs of execution, and contempt of court proceedings.
(2) A final administrative order that determines and
sets periodic suooort payments in the absence of a
district court order, when filed and docketed under this
section, may be modified bv a district court order only
as to installments accruins after actual notice to the
parties of any motion for modification. The standard for
a modification is that set forth in 40-4-208.
(3) The department may issue a warrant for distraint
based upon a properly filed and docketed order pursuant
to 40-5-247. [Emphasis added.]
Janet argues that this section should be read to allow
district courts to issue child support orders in a dissolution
proceeding regardless of whether an administrative order has been
filed in district court. We disagree. A party must still move for
modification before the court acquires the power to modify the
properly filed administrative order.
In its Conclusion of Law number six, the District Court found
that:
The Administrative Order became the Order of this Court
on January 8, 1990. Pursuant to M.C.A. Section 40-5-227,
that Order can be modified only as to installments
accruing after a Motion for Modification of Child
Support. A Motion for Modification was not filed, and
the Court cannot retroactively modify the support Order
established by the Consent Administrative Order.
Where the language of the statute is plain, unambiguous, direct,
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and certain, the statute speaks for itself. Kreger v. Francis
(Mont. 1995), 898 P.2d 672, 674, 52 St.Rep. 493, 494. We have also
held that if the legislature's intent is clear from the language of
the statute, we look no further. Luciano v. Northwest Pipe &
Casing Co. (1994), 264 Mont. 148, 151, 870 P.2d 99, 101.
As 5 40-5-227, MCA, makes clear, a properly filed and docketed
administrative order has all the force, effect, and attributes of
a docketed order or decree of the district court. As such, a
motion to modify must be made by a party before any modification
can be ordered by the court. Janet could have moved for
modification. We note that even if the terms of the temporary
child support agreement were found to be unconscionable, the award
could only be modified retroactive to the date when Charles had
actual notice of the motion for modification. Section 40-4-208(l),
MCA; In re Marriage of Bolt (1993), 259 Mont. 54, 60, 854 P.2d 322,
325. Here, however, Janet did not move to modify the child support
order as was required by § 40-5-227(2), MCA.
Janet argues that she should not be bound by the
administrative order because she was not served or given notice of
the proceeding. However, we note that Janet applied for and
received AFDC benefits, and as part of the application she assigned
her right to collect child support. Section 53-2-613(2), MCA,
provides:
A person by signing an application for public assistance
assigns to the state, the department of social and
rehabilitation services, and to the county welfare
department all rights the applicant may have to support
and medical payments from any other person in the
applicant's own behalf or in behalf of any other family
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member for whom application is made.
Janet also signed a "Notice of Automatic Assignment of Rights"
form, which provided that:
By signing an application for public assistance, you
automatically assign and transfer all rights to child
support to the state of Montana, department of social and
rehabilitative services (SRS), and the county welfare
department/county office of human services.
Thus, Janet's argument that she was not properly served or notified
is without merit. Janet had previously assigned her rights to
receive child support to the State of Montana. Her assignment of
rights obviated the need to make her a party to the administrative
proceeding.
Affirmed.
We concur:
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