                                                                                           February 1 2012


                                         DA 11-0421

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2012 MT 24N



JODI M. WALKER,

              Petitioner and Appellee,                                               'J)
         V.                                                                     j!
THOMAS J. TATE,
                                                                        OF E SUPREME COURT
                                                                             OF MOJTAPLA
              Respondent and Appellant.



APPEAL FROM: District Court of the Eleventh Judicial District,
              In and For the County of Flathead, Cause No. DF 00-015C
              Honorable Stewart E. Stadler, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Thomas J. Tate, (self-represented); Salem, Oregon

               For Appellee:

                      Jodi M. Walker, (self-represented); Havre, Montana



                                                   Submitted on Briefs: January 11, 2012

                                                             Decided: February 1, 2012


Filed:
                                            /7
                                            lerk
Justice Beth Baker delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Thomas Tate appeals the District Court's order denying his request for retroactive

modification of his child support obligations. Tate and Petitioner Jodi Walker are the

parents of a child born in 1999. On October 30, 2001, the court entered an order adopting

an amended final parenting plan and requiring Tate to pay $335.00 per month for child

support.

¶3     On November 14, 2003, Tate filed a Petition for Modification of Child Support,

claiming he could not afford the amount imposed by the court. The handwritten petition

shows "cc: Jodi Walker." Walker did not respond to the motion and the District Court

took no action. Tate, who had moved to Oregon, did not make his support payments and

ultimately came before the Marion County Circuit Court for the State of Oregon, which

ordered him to pay not less than $50 per month toward his child support obligations.

¶4 On March 2, 2011, Tate filed an Amended Motion for Modification of Child

support in Flathead County, along with a Motion for Release of Copies of Family Court

Services File. The court set a hearing for June 8, 2011, on Tate's motions. By then,

Tate's child support arrearage exceeded $30,000.

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T5     Following the hearing, the District Court ordered Tate's support obligation

reduced to $50 a month until such time as he qualifies for Social Security disability

payments. The court refused to make the modification retroactive to the date of Tate's

2003 motion, noting Tate had not brought the matter to the Court's attention and finding

retroactive modification would be "unconscionable" since "nobody has done anything for

eight years." The court did not rule on Tate's Motion for Release of Copies of Family

Court Services File.

¶6     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." "Whether child support is awarded retroactively to the date of notice of a

motion for modification is clearly within the discretion of the district court."    In re

Marriage of Pfennigs, 1999 MT 250, ¶ 23, 296 Mont. 242, 989 P.2d 327 (citations

omitted). We will not disturb a district court's discretionary ruling unless the court

"acted arbitrarily without employment of conscientious judgment or exceeded the bounds

of reason resulting in substantial injustice." In re Pfennigs, ¶ 23.

¶7     In In re Pfennigs, the mother moved for modification of the father's child support

obligation in November 1995 but did not actively pursue that motion until she requested a

scheduling conference in December 1996. ¶ 9. The district court entered an order to

modify the support effective in January 1997. In re Pfennigs, ¶ 10. The court provided

no explanation except that the date was "fair and equitable." In re Pfennigs, ¶ 24. We

found the court had not abused its discretion. Rather, we stated:

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       [ut was within [mother]'s power to pursue her motion diligently. That she
       failed to do so, even in light of purportedly dire financial straits, cannot be
       blamed on the District Court or constitute a basis for determining that the
       court abused its discretion. . . On this record, we cannot say that the court
       acted arbitrarily or exceeded the bounds of reason resulting in substantial
       injustice in determining the retroactive date for increased child support.

In re Pfennigs, ¶ 26. Like the mother in In re Pfennigs, Tate failed adequately to pursue

his motion for modification. Though Tate told the District Court he attempted to contact

the clerk's office "a couple times," the court found his efforts were insufficient. We have

determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal

Operating Rules, which provides for noncitable memorandum opinions. The District

Court did not abuse its discretion in refusing to give Tate credit for letting the motion sit

idle for eight years.

¶8     We affirm the District Court's modification order and remand for consideration of

Tate's unrelated Motion for Release of Copies of Family Court Services File.




                                                             /       Jutice

We concur:



         ,- Chief Justice




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