                                                                                             October 30 2012


                                           DA 12-0318

                   IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2012 MT 244



IN RE THE MARRIAGE OF:

LORA L. WYRICK,

               Petitioner and Appellee,

         and

DONALD H. WYRICK,

               Respondent and Appellant.



APPEAL FROM:            District Court of the Sixteenth Judicial District,
                        In and For the County of Fallon, Cause No. DR 1993-5570
                        Honorable Joe L. Hegel, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                        Donald H. Wyrick (self-represented), Baker, Montana

                 For Appellee:

                        Lora L. Wyrick (self-represented), Gilbert, Minnesota


                                                     Submitted on Briefs: October 2, 2012

                                                                 Decided: October 30, 2012




Filed:

                        __________________________________________
                                          Clerk
Justice Brian Morris delivered the Opinion of the Court.

¶1     Appellant Donald H. Wyrick (Donald) appeals from the District Court’s findings of

fact, conclusions of law, and order modifying child support. We affirm in part and remand

in part for further proceedings.

¶2     We review the following issues on appeal:

¶3     Whether the District Court abused its discretion when it limited the child support

modification to the date that Donald filed his motion for modification?

¶4     Whether the District Court abused its discretion when it calculated Donald’s child

support obligations?

¶5     Whether the District Court violated Donald’s due process rights?

                       PROCEDURAL AND FACTUAL BACKGROUND

¶6     Donald and Lora L. Wyrick (Lora) filed for dissolution in 1993. At that time, Donald

and Lora entered into a separation agreement that required Donald to pay child support in the

amount of $150 per month for each of their three minor children and maintenance in the

amount of $150 per month. Lora moved to Minnesota in 1994 where she applied for public

assistance. Lora assigned her rights under the separation agreement to Minnesota Child

Support Enforcement Division (Minnesota CSED) as a condition of her receipt of public

assistance.

¶7     Minnesota CSED requested that Montana Child Support Enforcement Division

(Montana CSED) collect child support from Donald. Montana CSED mistakenly assumed

that the separation agreement constituted a district court order and commenced enforcement.

Montana CSED added a fourth child born to the parties after the 1993 separation agreement

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and set Donald’s child support obligation at $156 for each of the now four minor children for

a total monthly obligation of $624. Montana CSED eventually suspended Donald’s driver’s

license due to his failure to comply with his child support obligations.

¶8     The District Court finally entered a dissolution decree in 1999 after the parties had

failed at several attempts at reconciliation. One of these failed reconciliation attempts had

produced the fourth minor child. The court noted that Montana CSED had been enforcing

the child support obligations contained in the separation agreement. The court found

Donald’s support obligations to be unconscionable in light of his annual income of $12,000.

The court instead imposed a child support obligation of $50 per child per month.

¶9     Montana CSED recognized its error in enforcing against Donald the support

obligations contained in the separation agreement when the District Court never had

approved the separation agreement. Montana CSED restored Donald’s driver’s license. As

a result of its mistake, Montana CSED moved to intervene in the proceeding in light of its

statutory interest in recovering what it claimed to be Donald’s child support obligations. The

District Court joined Montana CSED as a party on February 16, 2000.

¶10    Montana CSED promptly filed a motion for an order to approve the 1993 separation

agreement and its accompanying child support obligations for Donald. Montana CSED

recognized that it lacked authority to enforce Donald’s support obligations contained in the

separation agreement without an order from the court to adopt the agreement. Montana

CSED sought to collect the support debt from Donald that had accrued between the 1993

execution of the separation agreement and the court’s entry of the dissolution decree and its

$50 per child per month support obligation for Donald. The District Court granted Montana

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CSED’s motion over Donald’s objection on June 21, 2001. The court concluded that Donald

owed $22,542.85 in unpaid support.

¶11    The matter simmered for several years with what appears to be partial compliance by

the parties with the duties and obligations with respect to parenting and child support. Lora

filed a motion for civil contempt on August 29, 2006, in which she alleged that Donald had

fallen behind in his child support obligations contained in the District Court’s order of June

21, 2001, and that Donald improperly was preventing one of their minor sons from returning

to Minnesota after a visit with Donald in Montana. Donald denied the allegations and

requested that the parenting plan be modified to allow his minor son to live primarily with

him in Montana.

¶12    The parties eventually resolved their differences temporarily through a stipulated

amended child support agreement filed with the court on October 10, 2007. The parties

agreed that the minor son would reside primarily with Donald. Donald paid back child

support in the amount of $19,150.00 since September 1, 2006. Donald further agreed to pay

accrued child support in the amount of $21,116 for the period September 2006 through

September 2007. Donald also agreed to pay Lora monthly child support of $2,273.00

beginning June 1, 2007, and for each month thereafter until modified by the court.

¶13    Donald’s ability to clear his back child support obligations and pay an increased

monthly amount arose from his discovery of a largely intact 65 million year old fossil of a

tyrannosaurus rex dinosaur on his property sometime in 2006. Donald apparently sold the

10-foot tall fossil, known as Wyrex, for a substantial sum. Wyrex now sits on display at the

Houston Museum of Natural Sciences. Wyrex possesses the best-preserved hands and feet

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of any specimen ever discovered, and boasts a hand bone that has never before been

reported. http://blog.hmns.org/2012/05. Donald received $25,000 per month as his share of

the Wyrex payments.

¶14    The Wyrex money apparently did not last forever, however, as Donald filed a motion

for modification of child support on April 10, 2009. Donald alleged that his payments under

the Wyrex sales contract had ended on August 31, 2008, and since that date his farming and

ranching business constituted his sole source of income. Donald apparently signed an

affidavit for his lawyer in October 2008 in support of the motion to modify child support.

Donald’s lawyer failed to file the motion, however, until April 2009. The District Court

directed Donald and Lora to file updated child support affidavits. Donald and Lora

eventually filed the updated information.

¶15    Donald had assumed that the stipulated amended child support agreement filed with

the court on October 10, 2007, contained a provision that his child support obligation would

change automatically upon cessation of his Wyrex payments in 2008. The stipulated

amended agreement contained no such provision. As a result, the District Court determined

that it could modify Donald’s child support obligations only for the period after Donald filed

his motion in April 2009. In the interim, Montana CSED informed Donald in July 2009 that

it intended to suspend his commercial driver’s license based on his unpaid support

obligations. Donald’s license apparently remains suspended.

¶16    The fact that the District Court did not hold a hearing on the matter until December

2010 further delayed resolution. In fact, the court had not ruled on the issue by October



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2011. Donald at that point filed a motion with updated information. The court eventually

entered its findings of fact, conclusions of law and order on October 4, 2011.

¶17    The court found that Donald earned $10,460.00 in 2009 from his farming/ranching

operation. The court added the sum of $11,000 of the scheduled depreciation back into

Donald’s income for a total income in 2009 of $21,460.00. The court specifically excluded

the $10,637.06 that Donald earned from Franz Construction, Inc. from Donald’s child

support calculation in light of Donald’s financial obligations to his subsequent family from

his current marriage. The court found that Donald’s child support obligation should be $139

per month for each of the parties’ remaining two minor children. The court further offset

Donald’s child support obligations by $124 per month, or $62 per child per month, to reflect

Lora’s receipt of social security benefits. This final adjustment left Donald with a child

support obligation of $155 per month.

¶18    The court also recognized that Donald had overpaid child support in the previous

years. The court determined, however, that it lacked sufficient information to determine the

exact amount that Donald had overpaid. The court directed Donald’s counsel to submit a

spreadsheet, supported by an affidavit, that set forth Donald’s payments and accrued

amounts to allow the court to calculate the amount of overpayment. Donald’s overpayment

led the District Court to conclude that, retroactive to May 2009, all of Donald’s future child

support payments would cease.

¶19    Donald’s lawyer filed a response in which he indicated Donald no longer could afford

to pay his lawyer. Donald’s lawyer attached to his response Donald’s pro se calculations and

revised proposed findings of fact and conclusions of law. The court characterized Donald’s

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response as a failure to “do the math” requested in the court’s previous order. The District

Court issued its final ruling in December 2011 on Donald’s motion.

¶20    The District Court corrected its earlier ruling in December 2011 when it found that

Donald still had an arrearage from earlier missed child support payments. These missed

payments took place after Donald’s payments on the Wyrex sale had stopped, but before he

had filed his motion for modification. Donald’s calculations show payments stopping as of

June 2008. The court determined that it could not modify the amount of Donald’s payments

back to 2008 in light of the fact that Donald had failed to file his motion for modification

until April 2009. The court concluded that the arrearages totaled $11,448.18. A subsequent

calculation performed by Montana CSED at the court’s request reduced Donald’s arrearages

to $9,631.28. The court further concluded that Donald’s income supported a continuing

child support obligation of $155 per child per month until the final child reaches the age of

18 and graduates from high school. Donald appeals.

                                STANDARD OF REVIEW

¶21    We review for clear error a district court’s findings of fact in child support

modification cases. In re Marriage of Damschen, 2011 MT 297, ¶ 22, 363 Mont. 19, 265

P.3d 1245. We review de novo questions of law. Damschen, ¶ 22.

                                      DISCUSSION

¶22    Whether the District Court abused its discretion when it limited the child support

modification to the date that Donald filed his motion for modification?

¶23    Donald argues the District Court should have made the modifications retroactive to

August 2008 as both parties had intended to include the modification upon the cessation of

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the Wyrex payments in the stipulated amended child support agreement filed with the court

on October 10, 2007. The District Court correctly noted that the stipulated amended child

support agreement contained no mention that Donald’s Wyrex-enhanced monthly support

obligations would end automatically upon the cessation of the Wyrex payments in August

2008. Donald concedes that the stipulated amended child support agreement that the parties

filed with the court contained no provision regarding automatic modification upon cessation

of the Wyrex payments. Donald failed to file his motion for modification of his support

obligations until April 2009.

¶24    The court revised downward Donald’s support obligations as of the date that he filed

his motion for modification in April 2009. Section 40-4-208, MCA, allows a court to modify

a child support order “only as to installments accruing subsequent to actual notice to the

parties of the motion for modification.” Donald provided notice to Lora of his motion for

modification on April 10, 2009.       The District Court lacked authority to extend the

modification to any date before April 10, 2009. In re Marriage of Pfennigs, 1999 MT 250,

¶ 23, 296 Mont. 242, 989 P.2d 327.

¶25    Whether the District Court abused its discretion when it calculated Donald’s child

support obligations?

¶26    Donald further contends that the District Court erroneously determined the amount of

modified support that he owed. Donald takes issue with the court’s consideration of

depreciation and its failure to give Donald credit for all the insurance and medical payments

he made for the children. Donald also contends that the court failed to take into account

changes in custody with one of the children who came to live with Donald in August 2008.

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¶27    The District Court struggled to resolve a hopelessly convoluted child support

arrangement that festered for nearly 20 years. The parties did little to aid the District Court

in resolving the matter.      We remain unable to reconcile, however, the seemingly

contradictory orders of the court regarding Donald’s continuing support obligations and the

amount of arrearages that Donald owes.

¶28    The court declares in its order of October 3, 2011, that Donald “owes no future

obligation of child support to [Lora] in that the social security received by the two minor

children exceed the amount of child support” that Donald would owe to Lora. The court

further declares in that same order that Donald has overpaid child support. In fact, the court

directed Lora to repay “any overpayments” made by Donald.

¶29    By contrast, the court reverses course in its supplemental order of December 20, 2011.

The court concludes that Donald continues to owe $155 per month in child support to Lora.

The court offers no new finding of fact to support the change from the finding in the court’s

October 3, 2011, order in which the court concluded that Donald’s child support obligations

should cease. The court further concludes that Donald has not overpaid child support. To

the contrary, Donald still owes $11,448.18. Montana CSED revised downward this

outstanding balance to $9,631.28.

¶30    The Court’s inability to reconcile these seemingly disparate findings and conclusions

between the District Court’s two orders lead us to conclude that a remand would be

appropriate. The District Court’s “Schedule A,” attached to the December 20, 2011, order

fails to illuminate sufficiently the difference in the outcome of the two orders. The court’s

supplemental order of December 20, 2011, fails to set forth the justification for the change

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from the court’s earlier order. Moreover, the adjustments made by Montana CSED further

raise questions as to whether all parties have used the same “math” to reach these outcomes.

¶31    We need not address Donald’s due process claims in light of our decision to remand

the issues of Donald’s continuing support obligations and the outstanding balance that he

owes on unpaid child support. In light of the substantial delays in the matter, however, the

District Court also should address any claims raised by Donald regarding the collateral

consequences of his failure to pay outstanding child support obligations, including the

suspension of his driver’s license. We remand these two issues to the District Court for any

further proceedings necessary.

                                                 /S/ BRIAN MORRIS

We Concur:

/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ JIM RICE




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