                                                                                         December 14 2010


                                            DA 10-0189

                   IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2010 MT 260



IN RE THE MARRIAGE OF:
DAVID CARL BRINLEY,

               Petitioner and Appellant,

         and

IDA LOUISE BRINLEY,

               Respondent and Appellee.



APPEAL FROM:             District Court of the Tenth Judicial District,
                         In and For the County of Fergus, Cause No. DR 06-103
                         Honorable E. Wayne Phillips, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                         Paul D. Sullivan, Measure & Wilson, P.C., Kalispell, Montana

                 For Appellee:

                         Jeffrey A. Simkovic, Billings Legal, PLLC, Billings, Montana



                                                     Submitted on Briefs: November 10, 2010

                                                                 Decided: December 14, 2010




Filed:

                         __________________________________________
                                           Clerk
Justice Michael E Wheat delivered the Opinion of the Court.

¶1      David Brinley (David) appeals an order entered by the Tenth Judicial District Court,

Fergus County, requiring him to pay retroactive child support to his ex-wife Ida Brinley

(Ida), from October 1, 2007, forward. We affirm, but remand for clarification of the amount

owed.

¶2      David and Ida’s marriage was dissolved on October 29, 2007, by Decree of

Dissolution (Decree) of the District Court. They have one child. The Decree did not impose

child support on either party, but stated “[c]hild support should be set pursuant to the

Montana Child Support Guidelines. Counsel for the parties shall work together to supply an

agreed upon amount to the Court. Should they be unable to do so, then the Court will set the

amount.”

¶3      On January 20, 2009, the Department of Public Health and Human Services (DPHHS)

filed a motion asking the District Court to adopt the Child Support Enforcement Division’s

(CSED) child support calculation, which would require David to pay $563 per month to Ida.

At that point, David had not provided CSED with any information about his income, assets,

or liabilities. CSED calculated the child support amount based on the proceeds David

received from a land sale. The District Court granted the motion on January 21, 2009. David

objected and the order was set aside.

¶4      On July 30, 2009, Ida filed a Motion for Contempt and a Request for Show Cause

Hearing, asking the court to hold David in contempt for several things, including failing to

cooperate with CSED in calculating child support. Two hearings were held on Ida’s motion.

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First, a hearing was held on October 21, 2009. After this hearing, David provided financial

information to CSED. A continuation of the October 21, 2009, hearing was held on

December 21, 2009.

¶5     On February 17, 2010, the District Court issued an order regarding the December 21,

2009, hearing (“December Order”). The December Order provided that child support should

be paid, “retroactively to the first of the month of the month of divorce,” that being October

1, 2007. The amount was to be determined by CSED. On February 24, 2010, the District

Court issued an order regarding the October 21, 2009, hearing (“October Order”). The

October Order provided that David should pay $563 per month, beginning October 2009.

David appeals from the December Order requiring him to pay child support retroactively to

October 1, 2007.

¶6     The issue on appeal is whether the District Court erred when it ordered David to pay

retroactive child support beginning October 1, 2007.

                               STANDARD OF REVIEW

¶7     We review child support awards to determine whether the district court abused its

discretion. In re Marriage of Di Pasquale, 220 Mont. 497, 499, 716 P.2d 223, 224 (1986),

In re Marriage of McLean, 257 Mont. 55, 60, 849 P.2d 1012, 1014 (1993). Absent an abuse

of discretion resulting in substantial injustice, the award made by the district court will be

upheld. Di Pasquale, 220 Mont. at 499, 716 P.2d at 224.




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                                       DISCUSSION

¶8     The District Court has jurisdiction to award child support retroactive to the time of

separation of the parties. In re Marriage of Barnard, 241 Mont. 147, 152, 785 P.2d 1387,

1390 (1990); Di Pasquale, 220 Mont. at 499, 716 P.2d at 225.

¶9     David argues, pursuant to § 40-4-208(1), MCA, that he can only be required to pay

retroactive child support from January 20, 2009, the date DPHHS filed its motion to adopt

CSED’s child support calculation. Section 40-4-208(1), MCA, states that “a decree may be

modified by a court as to maintenance or support only as to installments accruing subsequent

to actual notice to the parties of the motion for modification.” David argues that DPHHS’s

motion was a motion to modify the Decree, which did not order him to pay any child

support, and that January 20, 2009, was the first date that he received actual notice that he

would be obligated to pay child support.

¶10    Ida argues that the December Order relates directly back to the Decree, which

provided that some child support would be ordered in the future, and it was within the

discretion of the District Court to order retroactive child support.

¶11    The District Court did not abuse its discretion when it awarded retroactive child

support. The December Order, making child support retroactive to October 2007, was not a

modification of child support, but related back to the Decree. Therefore, § 40-4-208(1),

MCA, is inapplicable to this case. Although the Decree did not list any specific amount, it

made clear that there would be a child support obligation, the amount of which was to be

determined by either the agreement of the parties or the court. It was David’s refusal to

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cooperate with CSED that delayed the calculation. It was not error to order child support be

paid retroactively to the month of the divorce; October 2007. Barnard, 241 Mont. at 152,

785 P.2d at 1390; Di Pasquale, 220 Mont. at 499, 716 P.2d at 225. Although neither party

cited Barnard or Di Pasquale, we find these cases controlling on the issue presented to the

Court and we affirm.

¶12    However, we remand to the District Court to clarify the amount of child support

owed. The December Order requires CSED to calculate the amount owed, retroactive to

October 2007, but the October Order provides that David should pay $563 per month from

October 2009. The Court can find no amount ordered for the period between October 2007

and October 2009. It is unclear whether the October 2009 date is a typographical error, and

David is required to pay $563 per month from October 2007 to present, or whether there is a

different amount owed between October 2007 and October 2009.

                                     CONCLUSION

¶13    We affirm the District Court’s award of retroactive child support. However, we

remand to the District Court to clarify the amount owed.


                                                 /S/ MICHAEL E WHEAT

We Concur:

/S/ MIKE McGRATH
/S/ JIM RICE
/S/ BRIAN MORRIS
/S/ JAMES C. NELSON




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