                                   ..,
                        No.    96-4~6    & 96-447
          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                  1996


DAVID SEVERNS,
          Petitioner and Respondent,

     v.
STATE OF MONTANA,
DEPARTMENT OF SOCIAL AND
REHABILITATION SERVICES,
CHILD SUPPORT ENFORCEMENT
DIVISION,

          Respondent and Appellant.




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



COUNSEL OF RECORD:

          For Appellant:
                 John M. McRae, Special Assistant Attorney General,
                 Missoula, Montana
          For Respondent:
                 Christopher Daly, Missoula, Montana



                              Submitted on Briefs:     November 14, 1996
                                            Decided:   January 2, 1997
Filed:




                                  C erk
Justice William E. Hunt, Sr. delivered the Opinion of the Court.


      Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1995 Internal Operating Rules, the following decision shall not be

cited as precedent and shall be published by its filing as a public

document with the Clerk of this Court and by a report of its result

to State Reporter Publishing Company and West Publishing Company.

      The   Child   Support   Enforcement     Division      of    the    Montana

Department of Social and Rehabilitation Services (CSED) appeals the

decision of the Fourth Judicial District Court, Missoula County,

requiring the CSED to comply with an earlier order of the District

Court which the CSED failed to     appeal~

      We affirm.

      David Severns (Severns) is the father of two children born of

two separate relationships.       The CSED calculated Severns'             child

support obligation for each child, but Severns took issue with the

manner in which those obligations were calculated.               In determining

Severns' support obligation for his second child, the CSED deducted

his   existing   support   obligation   for   his   first    child      from   his

available monthly income.       It then used his remaining available

monthly income as the basis for calculating the support due to his

second child.

      Severns contended that this method of calculation in effect

penalized him for having two children by two different mothers.                 He

contended that the child support should have been calculated by

determining the obligation for two children, deducting that amount

from his available income, and then dividing the figure by two.                 He

                                    2
appealed the CSED's method of calculation because he claimed it

impermissibly resulted in a higher child support obligation than

would have resulted if the CSED had used the method he suggested.

The    Administrative     Law     Judge      (ALJ)         affirmed    the     CSED' s

determination and Severns appealed to the District Court.

       By an order dated        February 28,' 1995,           the   District    Court

determined that the method employed by the CSED was in compliance

with the child support guidelines.                Nevertheless,        the District

Court concluded that application of this method of calculation in

this   case was an error of law because it                   failed to take       into

adequate consideration Severns' obligation to support two children

by two different mothers.        It therefore concluded that the CSED's

method of calculation was "unreasonable and arbitrary" and remanded

the matter for recalculation of Severns' support obligation.                      The

CSED did not appeal this 1995 order of the District Court.

       On remand,    the CSED refused to use a               different method of

calculation other than that which it felt was mandated by the child

support   guidelines.      It    therefore    re-figured        Severns'     support

obligation using the same method of calculation it had employed

before and,   not surprisingly,         reached the same result.             Severns
again appealed; the ALJ again affirmed; and Severns again appealed
to the District Court.          By an order dated April 29,               1996,    the
District Court informed the CSED and the ALJ that this was not the
result    mandated   by   the    1995    order,      and    remanded    again     with

instructions that the CSED fully comply with the 1995 order.                       The

CSED now appeals.


                                         3
        On appeal, the CSED addresses the propriety of the 1995 order,

which it contends was erroneous and exceeded the District Court's

authority.     In response, Severns points out that the 1995 order was

an appealable one, but that the CSED did not appeal it.                      In the

absence of an appeal, Severns contends that, correct or incorrect,

that order became the law of this case.

        The doctrine of "the law of the case" refers to

        the principle that if an appellate court has passed on a
        legal question and remanded the cause to the court for
        further proceedings, the legal question thus determined
        by the appellate court will not be differently determined
        on a subsequent appeal in the same case where the facts
        remain the same.

Black's Law Dictionary (6th ed. 1990) 886-887 (citations omitted);

see also Fiscus v. Beartooth Electric Cooperative, Inc. (1979), 180

Mont. 434, 436, 591 P.2d 196, 197.           The law of the case means that

once an issue has been finally decided, whether rightly or wrongly,

it cannot again be relitigated.            State v. Black (1990), 245 Mont.

39, 44,    798 P.2d 530, 533      (citing State v. Zimmerman (1977), 175

Mont. 179, 185, 573 P.2d 174, 177).               The principle of the law of

the case promotes judicial economy and serves the need for finality

of judgments; it also stands for the proposition that there must be

an end to litigation at some point.          Black, 798 P.2d at 533 (citing

Statev. Perry (1988), 232 Mont. 455, 463-64, 758 P.2d 268,                     273-

74) .

        The doctrine   of   the   law of    the    case     has most   often been

applied in Supreme      Court decisions.            See,    for   example,   Haines

Pipeline Construction v. Montana Power Co.                 (1994), 265 Mont. 282,

876 P.2d 632; In re Marriage of Becker (1992), 255 Mont. 357, 842

                                       4
P.2d 332; Zimmerman, 573 P.2d 174.              But we have also held that the

law of the case is equally applicable to prior rulings of a trial

court in the same case.            State v. Carden (1976),          170 Mont.   437,

439, 555 P.2d 738, 739 (citations omitted).                 Such is the situation

in the case at bar.         The CSED was presented with an appealable

order which it chose not to appeal.                In the absence of an appeal,

that order became the law of this case.

      The CSED, however, argues that the law of the case doctrine

should not apply because the 1995 order of the District Court was

open to interpretation.           It claims that it believed the order only

mandated that it reevaluate the fairness of the method used, not

that it employ a different method entirely.                 Since the order could

be   interpreted    two    ways,    the     CSED   argues    that   the   order was

ambiguous and, therefore, cannot constitute the law of the case.

      We have reviewed the order in question and can discover no

ambiguity.    The District Court stated:

       [w]hile it is true that CSED subtracts from his gross
      income the amount [Severns] pays in child support for his
      other child, in setting the child support obligation for
      each child, CSED acts as if he has only one child. This
      method of calculation is not reflective of [Severns']
      individual situation.         In determining his support
      obligation, the agency cannot legally ignore the fact
      that he has two, not one child to support by calculating
      each of his two obligations as if he only had one.
      Therefore. the Court remands the case to the agency for
      a recalculation of [Severns'] child support obligation,
      taking into consideration the fact, as required by § 40-
      4-208, MCA, and § 40-6-216(5), MCA, that he is obliged to
      support not one, but two children.

(Emphasis    added.)       This    order clearly does         not    contemplate    a

recalculation      using    the     same    methodology      the    District    Court

concluded was,     in this case,           erroneous.    Rather,     it mandates a

                                            5
         recalculation using another, more equitable formula.    The order in

         question set out the law as determined by the District Court.

         Since the CSED did not appeal that judicial determination, the 1995

         order of the District Court was and is the law of this case.

               It is not the function of the CSED to determine whether the

         pronouncements of the District Court are correct or not; that is

         the   function of this Court.    If the CSED is presented with a

         decision with which it disagrees, it may choose to follow it or it

         may choose to appeal it.   It may not, however, choose to ignore it.

               Affirmed.


                                                 ~/         Justice

         We concur,?/

~          /4'·~7:~
                 Chief Justice
                 ,


    ,I

          ~~~
/


                    Justices




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