In Re the Marriage of Wroot ( 1989 )

No. 89-472
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
IN RE THE MARRIAGE OF m
LORETTA LAEL WROOT,
Petitioner and Respondent,
and
TTANCE WAYNE WROOT,
Respondent and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Diane G. Barz, Judqe presidinq.
COUNSEL OF RECORD:
For Appellant:
Craig W. Holt, Billings, Montana
Alan J. Lerner, Kalispell, Montana
For Respondent :
Linda L. Harris; Harris & Ventrell, Ril.lings, Montana
Submitted on Briefs: Dec. 7, 1989
Decided: December 28, 1989
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.
Vance W. Wroot appeals a decision of the ~hirteenthJudicial
District, Yellowstone County, Montana, awarding Loretta L. Wroot
$4,439 in child support arrearage. We affirm.
Appellant raises essentially three issues for review:
1. Did the District Court err in not crediting health care
payments made by appellant for his minor children against his child
support obligation?
2. id the District Court err in computing the amount of
child support due respondent?
3. id the ~istrictCourt err in awarding attorney's fees to
respondent?
The partiest marriage was dissolved on May 27, 1981 on which
date the District Court entered its Final Decree. The Final Decree
was amended on August 24, 1981. The Amended Final Decree required
the appellant to pay child support in the amount of $125 per month
per minor unemancipated child of the parties' marriage, subject to
abatement for all times the children visited with appellant. At
the time of the Amended Final Decree there were three minor
children, Dawn, Theresa and Leah.
On July 3, 1982, prior to reaching her eighteenth birthday,
Dawn married, terminating appellant's child support obligation for
her. Theresa's eighteenth birthday came on June 22, 1987. Leah
still resides with respondent and will be eighteen years of age on
April 24, 1990.
Since August of 1985, with respondent's consent, Theresa has
lived with either appellant or her older sisters. Respondent
consented to allowing appellant to pay the $125 per month child
support payment to Theresa and her older sisters when Theresa lived
with them. The parties agreed no child support was due for Theresa
when Theresa resided with appellant.
The Amended Decree provided that appellant was to maintain his
minor children on his work-related health insurance policies or on
a similar policy. Respondent was to pay all other medical, dental,
hospital and optical expenses of the minor children which were not
paid by appellant's insurance. However, appellant paid certain
health care costs of the minor children that were not covered by
his insurance. Appellant testified that the parties had an
agreement whereby respondent would reimburse appellant for these
costs. Respondent testified that no such agreement existed.
It is undisputed that appellant has not paid any child support
for Leah since March, 1986, except for $250 in 1987. While living
in Colorado, respondent initiated an action to collect back child
support with the Colorado State Child Support Enforcement Bureau.
That action resulted in appellant executing a holdback agreement
whereby First Montana Title held in escrow for satisfaction of the
child support judgment, monies due appellant from a real estate
transaction. The District Court granted appellant's request for
a preliminary injunction preventing the reserved funds from being
distributed to respondent through the Colorado and Montana Child
Support Enforcement Bureaus. The District Court ordered that the
Montana Child Support Enforcement Bureau should hold the funds
pending a hearing. The decision from that hearing forms the basis
of this appeal.
Did the District Court err in not crediting health care
payments made by appellant for his minor children against his child
support obligation?
Appellant cites us two cases, In re the Marriage of Good
(1984), 213 Mont. 269, 691 P.2d 1337, and Haaby v. Haaby (1974),
165 Mont. 475, 529 P.2d 1387, where parents owing child support
were given credit against that obligation because the parents had
paid expenses they were not required to pay. However, all of the
cases cited by appellant can be distinguished from the instant
case. Those decisions to credit other payments against the child
support obligation were predicated upon a finding that the parties
had reached an agreement to credit such payments against the child
support obligation.
In the instant case, the District Court found no similar
agreement existed. The District Court specifically found that no
express or implied agreement existed between the parties that
respondent was to reimburse appellant for the health related costs
that were respondent's obligation under the Amended Decree. The
District Court heard conflicting testimony on this factual issue
and, as trier of fact, resolved the conflict in respondent s favor.
Substantial evidence supports this finding and we will not disturb
it.
11.
Did the District Court err in computing the amount of child
support due respondent?
Appellant contends that the District Court neither credited
appellant with the correct amount of child support he has paid nor
calculated his total support obligation correctly. At the hearing,
respondent testified that she was claiming child support arrearage
for Leah. Upon review, we note undisputed testimony that appellant
had not paid any child support for Leah since March of 1986 except
for $250 in 1987. Thus, appellant owed respondent 36 months of
child support at $125 per month which totals $4,500. The District
Court awarded $4,439. We find no reversible error.
Did the District Court err in awarding attorney's fees to
respondent?
Appellant argues that respondent should not be awarded
attorney's fees because she initiated her claim for child support
arrearage under false pretext. While an error did exist in the
initial claim, the record discloses that respondent corrected the
error when she discovered it.
The Amended Final Decree provided in part,
10. Future Attornevls Fees: Should any action
be commenced to enforce . . . any provision
contained herein, the court, as a cost of
suit, shall award a reasonable attorney's fee
to the successful party. (Emphasis added.)
Because respondent had to begin an action to collect back child
support, under the clear terms of the Amended Final Decree, she was
entitled to attorneyls fees.
In light of our decisions above, we find it unnecessary to
discuss the procedural issue raised by appellant.
Affirmed.
We concur: A