                                        IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                            1990



    IN RE MARRIAGE OF
    DIANA RAE COWEN HEWITT,
              Petitioner and Respondent,
                       and
RONALD DEAN HEWITT,
          Respondent and Appellant.



    APPEAL FROM:                            District Court of the Tenth Judicial District,
                                            In and for the County of Fergus,
                                            The Honorable Peter L. Rapkoch, Judge presiding.


    COUNSEL OF RECORD:
                                    For Appellant:
                                            Dennis Paxinos, Billings, Montana
                           !   .


                           -
                               .
                               >
                                    For Respondent:
            fl
            0                               Jon A. Oldenburg, Deputy County Attorney
            *--5

             , -i                           Lewistown, Montana

C            '                              Bradley B. Parrish, Lewistown, Montana
\

        -      ?--4
    L   -          -- "
                   -
                   -
                   -.
                   r
                               ..
                                    '
                                        -
                                        -
                                                          Submitted on Briefs:   March 22, 1990
                    c- -            ..-
                     C:                                               Decided: May 1, 1990
    Fileb:
Justice Fred J. Weber delivered the Opinion of the Court.

     This is an appeal from an order by the ~istrictCourt, Tenth
Judicial District, Yellowstone County, Montana which determined a
child support obligation of Mr. Ronald Hewitt. Mr. Hewitt appeals.
We affirm.
     The sole issue presented for our review is whether the
District Court erred in ordering continued child support for a
married child who has reached the age of majority.
     Robert and Diane Hewitt were married in 1966. Three children
were born during the marriage: Malisa, born April 6, 1969 and Jason
and Justin, born March 4, 1973. The parties separated in 1981 and
Mrs. Hewitt filed a petition for dissolution on February 19, 1982.
When the petition was filed Mr. Hewitt was not living in Montana
and could not be personally served.    Service by publication was
made in the ~ewistown, Montana newspaper.     Mr. Hewitt did not
participate in the formulation of the divorce decree or the
property and support agreement.    He made no appearance in the
proceedings and on May 5, 1982 a default decree of dissolution was
entered in Lewistown, Montana. One provision of the decree stated:
          3. That the United States Navy or its
          paymaster is hereby ordered to deduct from
          Respondent's military retirement retainer the
          amount of $175.00 per month per child, for a
          total of $525.00 per month, for and as child
          maintenance and support to be paid directly to
          Petitioner. That said maintenance and support
          is to be continued until each child reaches
          the age of 18 or until each child reaches the
          age of 22 if they remain enrolled on a full
          time basis as students in post-high school
          education.
     After the divorce was granted, partial child support payments
were secured by garnishment of Mr. Hewittls Navy retirement pay.
However,     this   did   not   satisfy    Mr.    ~ewittls total     monthly
obligation, and arrearage began to accrue.          In November, 1985, Ms.
Hewitt   obtained a       judgment of     over   $10,000 on   the    accrued
arrearage.      In December, 1988, Ms.           Hewitt petitioned    for a
supplemental support order.        The court held a hearing on this
petition on February 23, 1989.            After the hearing the parties
stipulated that Mr. Hewittls total arrearage amounted to $20,623;
that Mr. Hewittls Navy retirement deduction should be paid at the
maximum allowed by law until the arrearage was paid in full; and
that the court should determine whether the support obligation for
Malisa should cease upon her marriage in March of 1989.                 The
parties submitted briefs on the child support issue.
     On July 28, 1989, the ~istrictCourt ordered that the child
support obligation to Malisa         should not terminate upon          her
marriage, but should continue until she is no longer enrolled as
a full-time student in post high school education. It is from this
order that Mr. Hewitt appeals.
     Mr. Hewitt contends that he cannot be obligated to provide
for a child who has reached the age of majority unless he has
voluntarily agreed to do so.        In support of this contention Mr.
Hewitt cites 5 40-4-208(5), MCA, which provides:
           Unless otherwise agreed in writing or
           expressly provided in the decree, provisions
           for the support of a child are terminated by
           emancipation of the child but not by the death
           of a parent obligated to support the child.
           When a parent obligated to pay support dies,
             the amount of support may be modified,
             revoked, or commuted to a lump-sum payment, to
             the extent just and appropriate in the
             circumstances.
     Mr. Hewitt also relies on Hurley v. Hurley (1986), 222 Mont.
287, 298-99, 721 P.2d 1279, 1286-87, which stated that "a parent's
obligation for child support ends at the age of majority, unless
there has been some voluntary agreement that support by one or both
parents will continue beyond majority.       (Emphasis in original. )
In Hurlev, the District Court awarded the wife 65% of the marital
estate based partly on the expense she would incur in educating the
parties' son, who was in high school.      Hurley is distinguishable
since it did not involve an express child support provision, as we
have in the present case. Additionally, Hurlev did not discuss the
statute relevant to the present issue, 5 40-4-208(5), MCA.
       Mr. Hewitt contends that his agreement to pay support must
be voluntary and not the result of a default decree.    However, his
contention is not supported by the statutory language. Section 40-
4-208(5), MCA, provides that provisions for support of a child are
terminated by emancipation ll[u]nless otherwise agreed in writing
or expressly provided in the decree."       In the present case the
decree, entered upon his default, pursuant to the petition,
expressly states that support is to be continued until the age of
22 if the child is a        full-time student in post high school
education.
    As we have previously held, the provision of the decree
controls:
                Under   the    statute,   if   provisions
           regarding the duration of child support are
           not contained in either the dissolution decree
           or the separation agreement, jurisdiction over
           child support automatically terminates when
           the child becomes emancipated. If, however,
           the separation agreement or the dissolution
           decree provides that child support payments
           shall terminate at a specific age or time,
           such a provision is controlling and the
           district court retains jurisdiction over
           questions of support until the terms of the
           agreement    or    decree    are    fulfilled.
           Chrestenson v. Chrestenson (1979), 180 Mont.
           96, 99-100, 589 P.2 148, 150.
In re Marriage of McFate (Mont. 1989), 781 P.2d 759, 760, 46
St.Rep. 1858, 1860; See also Torma v. Torma (1982), 198 Mont. 161,
164, 645 P.2d 395, 397; Tefft v. Tefft (Mont. 1981), 628 P.2d 1094,
1097, 38 St.Rep. 837, 841.      In the present case, an express
provision of the decree obligates Mr. Hewitt to provide support
past emancipation.   Lack of participation by Mr. Hewitt does not
render the decree ineffective.     See In re Marriage of Bowman
(1987), 226 Mont. 99, 109-10, 734 P.2d 197, 204.
     Mr.   Hewitt also   contends that Malisals emancipation by
marriage should terminate his support.   This contention, however,
is also subject to the above analysis.    Whether her emancipation
is by reaching the age of majority or by marriage, the present
decree extends the child support obligation past emancipation if
the educational requirements are met.
     As an alternative argument, Mr. Hewitt contends the District
Court exceeded its jurisdiction in that its order of July 18, 1989
actually modified the original decree.     The supplemental order
states that child support I1shall continue until [Malisa] is no
longer enrolled as a       full-time student in post high   school
education."      The original decree provided that support would
terminate at age 22 regardless of the child's enrollment as a
student.     Ms. Hewitt concedes that the court's modification was
inadvertent and exceeded its jurisdiction.   Cf. In re Marriase of
McFate, 781 P.2d at 760.
     Accordingly, we affirm the order by the District Court which
ordered Mr. Hewitt to pay child support to Malisa while enrolled
as a full-time student in post high school education.    We modify
the supplemental order to state that this obligation shall continue
until Malisa reaches the age of 22 if she remains enrolled on a
full time basis as a student in post high school education, as
provided in the original decree.
     Affirmed.




We Concur:             A


2-
 2l    Chief Ju tice




           Justices
