                                  No.    92-320
                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        1993


IN RE THE MARRIAGE OF
DONNA MARIE (HOLTHUSEN) JAKOBSON
      Petitioner-Appellant,
and
EARNEST DONALD HOLTHUSEN, and
MONTANA DEPARTMENT OF SOCIAL AND
REHABILITATION SERVICES,
      Respondent-Respondent




APPEAL FROM:        District Court of the Fourth Judicial District,
                    In and for the County of Missoula,
                    The Honorable Ed McLean, Judge presiding.


COUNSEL OF RECORD:
                For Appellant:
                     Donna M. Jakobson, Missoula, Montana (pro se)
                For Respondent:
                    John McRae, Child Support Enforcement, Missoula,
                    Montana


         jCJC'i:                  Submitted on Briefs:       December 22, 1992
          ' 4
         kl                                       Decided:   June 10, 1993
Filed:
Justice R.       McDonough delivered the opinion of the Court.

      This is an appeal from a Fourth Judicial District Court,
Missoula County, order on child support issues in a dissolution
action.    We affirm.

      There are three issues before the Court:
      1.     Did the trial court err when it denied Ms. Jakobson's
             motion to exclude the Child Support Enforcement Division
             (CSED) from the present action?
      2.     Did the trial court err when it applied social security
             disability payments as a credit toward child support?
      3.     Did the trial court err when it denied Ms. Jakobson's
             motion to order the CSED to return child support payments
             made by Earnest to the CSED?
      Donna and Earnest Holthusen were divorced in 1980.          Two
daughters, Janna K. and Jacque E. Holthusen, were born during the
marriage.      Donna was awarded custody of the two girls in the
dissolution decree and Earnest was granted reasonable visitation
rights.     Donna was awarded child support from Earnest of $150 per
month per child.        There have been problems between Donna and
Earnest for years over the issue of child support.       Donna was on
public assistance - Aid to Families with Dependent Children (AFDC)
-   from 1978 to 1988.
      All issues involve questions of law and I1[o]ur standard of
review for conclusions of law of a trial court is whether the
District Court correctly interpreted the law."      In Re Marriage of
Durbin (1991), 251 Mont. 51, 55, 823 P.2d 243, 245.
     First, Donna argues that the CSED should not be involved in
this case because she did not request their assistance and she
wants them excluded.              CSED argues that before the March 25, 1992
hearing, Earnest requested the services of CSED and therefore, the
CSED is properly involved in the case.                We agree with CSED.
     Mr. Holthusen applied for CSED's services after the January
22, 1992 hearing but before the March 25, 1992 hearing.                     Section
40-5-203(1),            MCA,    states that     "[tlhe   department   may   accept
applications for child support enforcement services on behalf of
persons who are not recipients of public assistance and may take
appropriate action to establish or enforce support obligations                ....   II


45 C.F.R. 9 303.2, states that "[tlhe IV-D agency &:                    . . .   (b)
. . .   within no more than 20 calendar days of receipt of referral
of a case or filing of an application for services under 9 302.33,
open a case by establishing a case record. ..." Under 45 C.F.R. 6
303.4,       'I.   . .the   IV-D Agency   must: (b) [u]tilize appropriate State
statutes and legal processes in establishing the support obligation
pursuant to 5 302.50 of this chapter ....(c) [pleriodically review
and adjust child support orders, as appropriate, in accordance with
9 303.8."            (Emphasis added.)
        It         is clear that Earnest Holthusen          can   request CSED1s
assistance and thereafter, CSED becomes a real party in interest.
Section 40-5-202(4), MCA.                  The District Court did not err in
determining that the CSED should not be excluded from the present
action.
     Second, Donna argues that the trial court retroactively
modified child support by crediting Earnest with Social Security
payments dating back to January 22, 1992.   The CSED claimed that
under In Re Marriage of Durbin (1991), 251 Mont. 51, 57, 823 P.2d
243, 247, Earnest's Social Security payments to the children were
properly credited toward child support owed from January 22, 1992.
CSED contends that the issue of modification of child support due
to the Social Security payments was before the trial court at that
time and therefore, the application was not retroactive.
     This Court concludes that Earnest's Social Security payments
should be creditedtoward his child support obligation from January
22, 1992. On December 6, 1991, Earnest Holthusen sent an affidavit
to the trial court requesting that the Social Security benefits his
daughters receive be recognized as child support.     In the trial
court's order of February 18, 1992, paragraphs 1, 4 and 5 read:
     1.   The Order of child support is amended as follows:
          (1) The State of Montana, Child Support Enforcement
     Bureau shall determine the appropriate current child
     support   obligation   of   the   Respondent.       That
     determination, including determinations pertaining to
     interest on the accrued child support arrearage, upon
     submission, shall become the Order of the Court;
          (2) The parties shall arrange for and attend the
     necessary appointments to obtain the determination
     specified in 1) above, .  ..

     4. For final resolution of this matter, unless good
     cause is shown by the child support enforcement bureau,
     the monthly obligation of the Respondent shall not exceed
     the maximum receivable from Respondent's Social Security
     Disability check - at this time 426.20.
    5. The child support obligation of the Respondent shall
    be enforced by payment of his obligation from the Social
    Security Administration from his Social Security
    Disability Check directly to the Child Support
    Enforcement Bureau, who in turn will make proper
    remittance to Petitioner.
    We agree with the CSED's assessment that modification of the
child support order is one objective of this order.       During the
March 25, 1992 hearing, the trial court concluded that Earnest
Holthusen was to be credited for his Social Security payments
toward his child support obligation from January    22,    1992   and
forward.   He stated during the hearing that:
         Mr Holthusen has continually raised objection that
    he was not getting any credit for Social Security, and to
    listen to the Petitioner's argument, he has to raise that
    argument each and every time he is drug into court. I
    don't agree with that position. I think he has raised
    the argument sufficient times that it is before the Court
    at the present time, and the previous Order of this Court
    denying the credit for Social Security payments to the
    children is modified to the extent that he shall be given
    credit for them from this date forward.
         Now, Durbin was decided, I believe, on December
    10th--December 19, 1991. In January '92, I believe--in
    February of 1992, I stated the monthly obligation of the
    Respondent shall not exceed the maximum receivable from
    Respondent's Social Security Disability check. At that
    time it was in the amount of the four hundred twenty-six
    dollars and twenty cents


         Apply that to January 22nd of '92. That is when we
    should have been following Durbin, and I wasn't following
    Durbin.
    Clearly, the trial court had notice that Earnest wished a
modification of the child support to reflect the Social Security
payments made to the two children.      The trial court did not
retroactively apply Durbin.
    Third, Donna argues that the CSED should return payments made
by Earnest to CSED which Donna contends belong rightfully to her.
Donna Jakobson collected $20,067 in AFDC assistance from May of
1978 through November of 1988. At this time, there was a District
Court Order for Earnest to pay child support. During the period of
May of 1978 through November of 1988, Earnest should have paid
$18,744 in child support. CSED contends that the State is entitled
to the $18,744 owed in past child support because the money was
assigned to the State by Donna as part of her application for AFDC
public assistance.
     Section 53-2-613, MCA, states:
          Application for assistance  --
                                     assignment of support
     rights.     (1) Applications for public assistance,
     including but not limited to aid to families with
     dependent children and medical assistance, must be made
     to the county department of public welfare in the county
     in which the person is residing. The application shall
     be submitted, the manner and form prescribed by the
     department of social and rehabilitation services, and
     shall contain information required by the department of
     social and rehabilitation services.
          (2) A person by signing an application for public
     assistance assigns to the state, the department of social
     and rehabilitation services, and to the county welfare
     department all rights the applicant may have to support
     and medical payments from any other person in his own
     behalf or in behalf of any other family member for whom
     application is made.
          (3) The assignment:
          (a) is effective for both current and accrued
     support and medical obligations;
          (b) takes effect upon a determination that the
     applicant is eligible for public assistance;
          (c) remains in effect with respect to the amount of
     any unpaid support and medical obligation accrued under
     the assignment that was owed prior to the termination of
     public assistance to a recipient.
          (4) Whenever a support obligation is assigned to the
     department of social and rehabilitation services pursuant
    to this section, the following provisions apply:
         (a) If such support obligation is based upon a
    judgment or decree o r an o r d e r of a c o u r t of competent
    jurisdiction, the department may retain assigned support
    amounts in an amount sufficient to reimburse public
    assistance money expended.
    When Donna applied for public assistance benefits, she signed
a "Notice of Automatic Assignment of Rights1!form, dated September
25, 1988, which states that    [b]y signing an application for public
assistance you have automatically assigned and transferred all
rights to child support to the State of Pilontana, Department of
Social and Rehabilitative Services (SRS), and the County Welfare
Department/County Office of Human service^.^^
     Also, Section   40-5-202(8),   MCA, states that:

          ( 8 ) If public assistance is being or has been paid, the
          department is subrogated to the debt created by a support
          order and any money judgment is considered to be in favor
          of the department. This subrogation is an addition to
          any assignment made under 53-2-613 and applies to the
          lesser of:
                (a) the amount of public assistance paid; or
                (b) the amount due under the support order.
     The February 18, 1992 order states that unless good cause is
shown by the CSED, Earnest's monthly obligation would not exceed
$426.20 and included in that obligation would be $75 which would be

applied to his child support arrearage.          The current support
obligation is $360 per month.       The CSED is retaining the money in
excess of the current child support obligation to reimburse the
State for the AFDC public assistance monies received by Donna from
1978 to 1988.   Dave Thorson, of the CSED, testified that "as we
receive them, the initial amount of money goes to current support,
and any excess that is not included in the current responsibility
goes to pay the State's arrears next."   Once the State's arrears
are paid, any excess money would be sent to Donna.   The money is
being distributed correctly.
     AFFIRMED.



                                                 Justice
                                                           d'
We Concur:       _ -
                  , -




             Justices
                                            June 10, 1993

                                 CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:


Doma M. Jakobson
511 Eddy Ave.
Missoula, MT 59801


John McRae, Esq.
Dept. of Social & Rehabilitation Services
2501 Catlin, Ste. 208
Missoula, MT 59801

Earnest Holthusen
P.O. Box 7211
229 Meadow Place S.E.
Everett, WA 98201


                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
                                                     STATE OF MONTANA
