In Re Marriage of Perkins

NO. 95-348
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
IN RE MARRIAGE OF
LINDA G. HECKLER PERKINS,
Petitioner and Appellant,
and
LEE DAVID HECKLER,
Respondent and Respondent.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas M. McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Barbara E. Bell, Bell & Marra,
Great Falls, Montana
For Respondent:
Robert F. James, James, Gray & McCafferty,
Great Falls, Montana
Submitted on Briefs: November 30, 1995
Decided: December 14, 1995
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
Lee David Heckler filed a motion in the District Court for the
Eighth Judicial District in Cascade County in which he requested
the court to hold his former wife, Linda Perkins, in contempt for
violating the couple's 1980 settlement agreement by failing to pay
her share of the college education expenses of their children.
After a hearing, the court granted David's motion and entered
judgment for the amount due from Linda. After additional hearings
and judgments for college expenses, the court entered an order
which required that Linda execute an assignment of her wages to
satisfy David's judgment against her. When Linda refused to assign
her wages, the court ordered that her employer withhold the amount
of $175 per pay period and pay, that amount directly to David.
Linda appeals from the District Court's assignment of wages. We
reverse the order of the District Court.
The issue on appeal is whether the District Court abused its
discretion when it ordered an assignment of Linda's wages pursuant
to 5 40-4-207, MCA.
FACTUAL BACKGROUND
Linda and David's marriage was dissolved by decree of
dissolution filed on October 30, 1980. The decree incorporated the
parties' property settlement agreement which provided that the
parties' two children would live with David and that I' [s] long as
o
the children reside with husband, husband will be fully responsible
for the support and maintenance of the minor children . . . .I1 The
parties also agreed that $11,600 would be set aside in an interest
bearing deposit for the college expenses of their children and that
David and Linda would "share equally in the cost, including
tuition, books, and room and board, of a college education for each
of the children to the extent that the educational fund proves to
be insufficient for that purpose."
The decree included the following provision regarding child
support :
LEE DAVID HECKLER shall be responsible for the support of
the minor children so long as they reside with him and he
shall also be responsible for all medical and medically
related expenses incurred by or on behalf of the minor
children. No other or further award of support for the
minor children shall be made at this time. . . . The
Court further orders the parties to perform all
covenants, conditions, and obligations set forth in their
said agreement as the same respect the care and support
of the minor children.
(Emphasis added.)
The parties' children are now 25 and 23 years of age and have
attended college. The daughter attended from 1988 until she
graduated in 1993 and the son, presently a senior in college, began
college in 1991. Both were over the age of 18 at the time they
began attending college. The education fund, which had a balance
of $32,330 in 1986, was depleted during the 1991-1992 school year
and David has paid the remainder of the education expenses without
the help of Linda. After repeated unsuccessful efforts to enforce
Linda's contractual obligation, David sought, and the court
entered, the assignment order which is the subject of this appeal.
DISCUSSION
Did the District Court abuse its discretion when it ordered an
assignment of Linda's wages pursuant to § 40-4-207, MCA?
A district court's order to assign wages is a discretionary
act. In re Marriage of Benner (1985), 219 Mont. 188, 192-93, 711 P.2d
802, 805; see 5 40-4-207, MCA. We review discretionary acts to
determine if the court abused its discretion. Mayv. FirstNat'l Pawn
Brokers (l995), 270 Mont. 132, 134, 890 P.2d 386, 388.
The District Court ordered Linda's employer to withhold part
of her wages and pay them directly to David pursuant to 5 40-4-207,
MCA. That section provides that a "court may order the person
obligated to pay support or maintenance to make an assignment of a
part of his periodic earnings . . . to the person entitled to
receive payment." Section 40-4-207, MCA, therefore, allows the
trial court to order a wage assignment for child support purposes,
but an obligation to pay child support is a prerequisite to such an
assignment order. See In re Benner, 711 P.2d at 805.
In this case, David agreed in the 1980 property settlement
agreement that he would be "fully responsible for the support and
maintenance of the minor children . . . ." Furthermore, the
court's decree provided that David was responsible for all child
support. Accordingly, Linda was never obligated by either the
agreement or the court's decree to pay any child support, and there
was no support obligation to enforce pursuant to 5 40-4-207, MCA.
Furthermore, in Montana, a parent's obligation for support
automatically terminates at the age of majority, unless there has
been some voluntary agreement that support by one or both parents
will continue beyond majority. InreMarriageofHurley (1986), 222 Mont.
287, 298-99, 721 P.2d 1279, 1287 (citing In reMarriageofBordner (1986),
220 Mont. 339, 343, 7 1 5 P.2d 4 3 6 , 438; InreMarriageofHerrig (1982) , 199
Mont. 174, 187, 648 P.2d 758, 765). Here, there could be no
agreement to extend an obligation for Linda to pay support beyond
majority because Linda had no obligation in the first place.
Therefore, while David's and the District Court's frustration
is understandable, Linda's agreement to pay college expenses
created nothing more than a contractual obligation which is
enforceable in the same manner as all other contractual
obligations. It may be reduced to judgment, as has been done in
this case, and executed upon subject to the provisions of
5 s 2 5 - 1 3 - 2 0 1 to - 4 0 5 , MCA. However, enforcement provisions which,
by their terms, are specifically limited to obligations for child
support and maintenance are not available.
Therefore, we conclude that the District Court abused its
discretion when it ordered an assignment of Linda's wages pursuant
to 5 40-4-207, MCA. We reverse the District Court's order and
order the wage assignment pursuant to 5 40-4-207, MCA, to be
withdrawn.
we concur: /
prepaid, to the