Support Obligation of Day v. State

No. 95-157
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
IN RE THE SUPPORT OBLIGATION OF:
STUART ANTHONY DAY,
Absent parent Plaintiff
and Respondent,
-v-
STATE OF MONTANA, DEPARTMENT OF
SOCIAL AND REHABILITATION SERVICES,
CHILD SUPPORT ENFORCEMENT DIVISION,
Defendant and Appellant.
APPEAL FROM: District Court of the Seventeenth Judicial District,
In and for the County of Phillips,
The Honorable John C. McKeon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Ann Hefenieder, Department of SRS, Child Support
Enforcement Division, Billings, Montana
For Respondent:
Loren J. O'Toole, II, O'Toole & O'Toole, Plentywood,
Montana
Submitted on Briefs: June 20, 1995
Decided: July 21, 1995
Filed:
Justice James C. Nelson delivered the Opinion of the Court.
The plaintiff, Stuart Anthony Day (Day), brought a petition in
the District Court seeking review of a decision of the Child
Support Enforcement Division (CSED) that his child support
obligation was past due and permitting CSED to begin income
withholding to satisfy the arrearage. The District Court for the
Seventeenth Judicial District, Phillips County, reversed the agency
decision holding that CSED's action on child support arrearage was
barred under the statute of limitations of the Fort Peck Tribal
Code. CSED's motion for reconsideration of that order was denied.
CSED appeals. We reverse and remand.
The issues on appeal are:
1. Did the District Court err by holding that the Fort Peck
Tribal Code's statute of limitations applies in this case rather
than Montana's longer statute of limitations?
2. Did the District Court err by holding that CSED cannot
enforce the Tribal Court judgment without initiating an action in
District Court?
Stuart Anthony Day and Vina Buckles (Buckles) were divorced in
Nevada on March 15, 1982. They were the parents of four minor
children, for whom Day was ordered to pay support in the amount of
$200.00 per child per month, beginning April 1, 1982.
Sometime thereafter, the parties moved to Montana and agreed
to modify Day's support obligation. On March 18, 1983, the Tribal
Court of the Fort Peck Indian Reservation, entered an order
incorporating the agreement and modifying Day's child support
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obligation.
In June 1983, Buckles applied for and received public
assistance through Aid to Families with Dependent Children (AFDC).
Under the applicable state and federal laws, she assigned her
rights to child support payments to CSED.
On August 11, 1983, and again on July 1, 1986, the Tribal
court issued orders requiring the payment of past-due child
support. All four children have now reached 18 years of age and
the last month any benefits were paid by AFDC was February 1990.
On July 15, 1993, CSED sent Day a notice of intent to withhold
portions of his wages for payment of past-due child support. An
amended notice of intent to withhold was sent to Day by CSED on
September 7, 1993. Day contested CSED's decision to withhold for
past-due support and a telephonic hearing before the Administrative
Law Judge (ALJ) was held on September 8, 1993.
At the hearing, Day presented a written memorandum that the
Fort Peck Tribal Code's five-year statute of limitations barred
enforcement of the judgments obtained in 1983 and 1986. Section
306 of Title VI of the Fort Peck Tribal Code provides:
Life of judgment. No judgment of the court for money
shall be enforceable after five (5) years from the date
of entry, unless application to renew the judgment shall
have been filed before the date of expiration pursuant to
Section 307.
Contrary to Day's contention that the judgments had expired,
CSED argued that Montana's ten-year statute of limitations
concerning collection of past-due child support, as provided by §
27-2-201(3), MCA (1993), was applicable in this case. The ALJ
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agreed and in his order of December 6, 1993, ruled in favor of
CSED. Day was found to owe a total of $24,226.00 in past-due child
support.
Day appealed to the District court arguing that his
substantial rights had been prejudiced. The District Court
reversed the ALJ's order and stayed CSED from enforcing any
decision to withhold income for delinquent child support based on
the Tribal Court judgment. The District Court held that CSED's
action on child support arrearage stemming from the 1983 and 1986
Tribal Court judgments was barred under the five-year statute of
limitations of the Fort Peck Tribal Code. Moreover, the District
Court ruled that, in order for CSED to collect any non-barred child
support, CSED would be required to proceed judicially, instead of
proceeding with its administrative income-withholding procedure.
CSED's motion to the District Court for reconsideration of its
order was denied. CSED appeals the District Court's order
reversing the agency decision as well as the court's order denying
CSED's Motion for Reconsideration.
Issue 1
Did the District Court err by holding that the Fort Peck
Tribal Code's statute of limitations applies in this case rather
than Montana's longer statute of limitations?
The ALJ determined that Montana's lo-year statute of
limitations applies in the case before us on appeal. The ALJ cites
the United States Supreme Court's decision in Roche v. McDonald
(1928), 275 U.S. 449, 48 S. Ct. 142, 72 L. Ed. 365, for the
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proposition that a state with a longer statute of limitations can
enforce the judgment of a sister state which judgment would be
barred by the sister state's shorter limitation period. The ALJ
concluded that the Fort Peck Tribe should be afforded the same
status as a sister state and entitled to full faith and credit for
its judgment.
The District Court reversed the ALJ concluding that under
Wippert v. Blackfeet Tribe (1982), 201 Mont. 299, 654 P.2d 512,
full faith and credit does not apply to Indian tribes. More
correctly stated, full faith and credit does not apply to the
orders, judgments and decrees of Indian tribal courts. Rather,
Montana treats tribal court judgments with the same deference shown
decisions of foreign nations as a matter of comity. Wippert, 654
P.Zd at 515.
The District Court noted that foreign judgments must meet the
requirements of the Uniform Foreign Money-Judgments Recognition Act
(the Recognition Act) found at Title 25, Chapter 9, part 6, MCA.
The Recognition Act, effective October 1, 1993, provides for the
enforcement of a judgment of a foreign state granting or denying
recovery of a sum of money. Specifically, the District Court noted
that under the Recognition Act, a foreign judgment must be
enforceable where rendered. Section 25-g-603, MCA. The court held
that since the action in the case before us on appeal is time-
barred in the Fort Peck Tribal Court, it is no longer enforceable
and fails to meet the requirement of 5 25-g-603, MCA.
On appeal, CSED contends that given the enactment of the
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federal Full Faith and Credit for Child Support Orders Act (the
Child Support Act), which was effective prior to the District Court
reaching its decision, the court on judicial review should have
applied the provisions of the Child Support Act to uphold the ALJ's
order. Day contends that since the Child Support Act was not in
place at the time of this action it does not apply.
Our review of a district court's conclusions of law is
plenary. We simply determine whether the court's interpretation of
the law is correct. Steer, Inc. v. Department of Revenue (lYYO),
245 Mont. 470, 474-75, 803 P.Zd 601, 603.
Although, generally, the District Court's statements regarding
the Recognition Act were correct, the court's application of that
Act in this case was erroneous. As regards child support orders
issued in Indian tribal courts, Indian tribes are deemed to be
“States,” 28 U.S.C. § 1738B(b), and are, therefore, excepted out of
the definition of "foreign states" under the provisions of the
Recognition Act. Section 25-Y-602(2), MCA. Additionally,
judgments for support in matrimonial or family matters are not
considered "foreign judgments" under the Recognition Act. Section
25-Y-602(1), MCA. Hence, the Recognition Act is not applicable,
and the District Court was incorrect in applying its provisions in
the instant case.
That brings us to the Child Support Act, the provisions of
which the District Court declined to apply. In 1994, Congress
determined that a lack of uniformity in the laws regarding child
support orders encouraged noncustodial parents to relocate to other
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states to avoid the jurisdiction of the courts of the home state.
This contributed to relatively low levels of child support payments
in interstate cases and to inequities in child support payment
levels that are based solely on the noncustodial parent's choice of
residence. To counteract this problem, Congress enacted Public Law
103-383, known as the Full Faith and Credit for Child Support
Orders Act (28 U.S.C. § 1738B (1994)).
As mentioned above, the Child Support Act defines a "State" to
include "Indian country." 28 U.S.C. § 1738B(b). Additionally, the
Act provides:
PERIOD OF LIMITATION.--In an action to enforce a
child support order, a court shall apply the statute of
limitation of the forum State or the State of the court
that issued the order, whichever statute provides the
longer period of limitation. [Emphasis added.]
28 U.S.C. § 1738B(g) (3) (1994).
We have previously held that an appellate court must apply the
law in effect at the time it renders its decision. In re Marriage
of Elser (19951, 895 P.Zd 619, 52 St.Rep. 434, (citing Haines
Pipeline v. MPC (lPPl), 251 Mont. 422, 433, 830 P.2d 1230, 1238).
An appellate court must give effect to the latest enactment of the
legislature and must decide each case in accordance with existing
laws. See, United States v. Schooner (1801), 5 U.S. 103, 2 L. Ed.
49. Moreover, this rule applies regardless of whether the change
is constitutional, judicial or statutory. Thorpe v. Housing Auth.
of the City of Durham (1969), 393 U.S. 268, 282, 89 S. Ct. 518, 526,
21 L. Ed. 2d 414, 484. As we pointed out in Haines, however, there
is an exception to the general rule when application of a new law
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would result in manifest injustice, which we have defined as
occurring when application of the new law impairs a vested right.
Haines, 830 P.2d at 1238. We have also held that a judgment is not
vested while it is subject to review or while an appeal is pending.
Haines, 830 P.2d at 1238; Brockie v. Omo Construction, Inc. (1994),
268 Mont. 519, 526, 887 P.2d 167, 171.
Since the Child Support Act was effective on October 20, 1994,
prior to the District Court rendering its decision, the court
should have applied the provisions of this Act and should have
enforced the longer period of limitation provided by Montana
statute.
We next must determine which Montana lo-year statute of
limitations is the correct one to apply in this case. The ALJ
concluded that 5 27-2-201(3), MCA (1993), applied. However, that
statute provides:
[tlhe period prescribed for the commencement of an action
to collect past-due child support that has accrued after
October 2, 1993, under an order entered by a court of
record or administrative authority is within 10 years of
the termination of the support obligation.
Section 27-2-201(3), MCA (1993). (Emphasis added.) Since the child
support arrearages in the instant case accrued prior to October 1,
1993, this statute cannot apply to the case before us on appeal.
Rather, the correct statute to apply is § 27-2-201(l), MCA (1993),
which provides:
the period prescribed for the commencement of an action
upon a judgment or decree of any court of record of the
United States or of any state within the United States is
within 10 years.
See In re Marriage of Brown (1994), 263 Mont. 184, 867 P.2d 381.
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~-,
Accordingly, we hold that, by reason of the applicability of
the Child Support Act to this case, Montana's lo-year statute of
limitations as provided by § 27-2-201(l), MCA (1993), applies.
In closing our discussion on this issue, however, and, in view
of our holding that the District Court erred in applying the
Recognition Act in this case, we believe it is appropriate to also
point out that we are not deciding here whether the Recognition Act
(enacted as Ch. 441, L. 1993) is applicable to Indian Tribal Court
orders, judgments and decrees that do not involve child support nor
do we express any opinion with regard to the interplay between that
Act, the Uniform Enforcement of Foreign Judgments Act (the
Enforcement Act; found at Title 25, Chapter 9, part 5, MCA), and
our decision in Wivvert as regards such orders, judgments and
decrees which do not involve child support.
Issue 2
Did the District Court err by holding that CSED cannot enforce
the Tribal Court judgment without initiating an action in District
Court?
Under our decision in Wivpert, the orders, judgments and
decrees of an Indian Tribal Court are not entitled to full faith
and credit. Rather, we determined that such orders, judgments and
decrees are to be treated with the same deference shown the
decisions of foreign nations as a matter of comity. Wivvert, 654
P.2d at 515. As a result, under the rule in Wivvert, absent some
specific statute granting full faith and credit or a statute
specifying some other procedure for enforcement, in order to
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enforce an order, judgment or decree of an Indian Tribal Court, the
holder must bring an action or special proceeding in District
Court. Wimert, 654 P.2d at 515. See also, 44 Op.Att'y Gen. 15
(1991).
Where, however, the order, judgment or decree of the Indian
Tribal Court is entitled to full faith and credit, then the holder
may, but is not required to "sue out" the order, judgment or decree
in an action or special proceeding in District Court. In the
alternative, the holder of an Indian Tribal Court order, judgment
or decree entitled to full faith and credit may also use the
simplified registration procedures set forth in the Enforcement
Act. Sections 25-p-502 and 25-p-503, MCA.
The Enforcement Act provides a procedure for the filing of a
foreign judgment with the clerk of the district court and permits
the clerk to treat the foreign judgment in the same manner as a
judgment of the district court. Section 25-g-503, MCA. For
purposes of the Enforcement Act, a "foreign judgment" is a
"judgment, decree, or order of a court of the United States or of
any other court which is entitled to full faith and credit in this
state." Section 25-g-502, MCA. (Emphasis added.)
Since child support orders of Indian tribal courts are
entitled to full faith and credit under the Child Support Act, the
simplified registration procedures of the Enforcement Act are
available in addition to the procedure of enforcing such an order
by way of an action or special proceeding in district court.
Sections 25-p-502, 25-p-503, and 25-g-507, MCA. Such a tribal
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court order or judgment may be either filed in the office of the
clerk of any district court in Montana, in accordance with the
procedures set forth under the Enforcement Act or sued out in
District Court by way of an action or special proceeding to enforce
the judgment.
Additionally, with respect to child support orders involving
public assistance under Title IV-D of the Social Security Act, a
third alternative is available for enforcement. Under Montana's
Child Support Enforcement Act, found at Title 40, Chapter 5, part
4, MCA, withholding of income to pay child support is allowed
without the need for court action. Section 40-5-402(4), MCA. To
protect the child support debtor's due process rights, the income
withholding process provides for notice of an intent to withhold
income, § 40-5-413, MCA, and an opportunity for pre-seizure
hearings, § 40-5-414, MCA.
The Child Support Enforcement Act applies to all support
obligations being enforced or collected by the Department of Social
and Rehabilitation Services, as in the instant case. Section 40-5-
402(2), MCA. Under this Act, a "support order" includes an order
of a court of appropriate jurisdiction of another state. Section
40-5-403(7), MCA. Since Indian tribes are deemed "states" for
purposes of child support orders under the federal Child Support
Act, Montana's Child Support Enforcement Act may be employed in the
instant case as well.
Consequently, in instances where the Child Support Enforcement
Act applies, the creditor may either commence administrative
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enforcement proceedings, including income withholding, register the
judgment with the District Court under the Enforcement Act or file
an action or a special proceeding in District Court to enforce the
Accordingly, we hold that the District Court erred in its
ruling that CSED cannot enforce the Tribal Court judgment without
initiating an action in District Court.
Reversed and remanded for further proceedings consistent with
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