                             No.     w-587
           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                    1995


IN RE THE MARRIAGE OF
THOMAS R. GLANVILLE,
           Petitioner and Appellant,
     and
PATRICIA DIANE GLANVILLE,
           Respondent and Respondent.



APPEAL FROM:    District Court of the Eleventh Judicial District,
                In and for the County of Flathead,
                The Honorable Ted o. Lympus, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:

                Paula Johnson, Attorney at Law
                Whitefish, Montana

           For Respondent:
                H. James Oleson; Oleson Law Firm,
                Kalispell, Montana


                               Submitted on Briefs:     March 30, 1995
                                             Decided:   July 6, 1995
Filed:



                                   clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court


        Thomas R. Glanville appeals from an order of the District

Court     for the    Eleventh      Judicial     District,     Flathead   County,
modifying child custody and support.             We affirm.

        The issue is whether the District Court erred in requiring

Thomas R. Glanville to pay back child support from July 1991

through August 1992.

        The marriage of Thomas R. Glanville (the father) and Patricia

Diane Glanville (the mother) was dissolved in April 1988 in San

Luis Obispo County, Superior Court of California.                They agreed to

joint legal custody of their two school-age children.                    Under a

modified order entered in November 1990 (apparently after the

father moved to Montana), the mother would have physical custody of

the children until June of 1991.               The father would then assume

physical custody until the summer of 1992, when the court would

review the matter.       Under the modified decree, the father was to

pay the mother child support of $400 per month.

        In June of 1991, the children came to Whitefish, Montana, to

live with their father.         The planned review by the California court
in the summer of 1992 did not occur.              Instead, at the children's

request,    they remained in Whitefish with their father except for

Christmas holiday and summer visitation with their mother.

        In November 1992,   the father filed in the Eleventh Judicial

District    Court,   Flathead County,         an affidavit and petition for

modification    of   custody,    visitation,    and   support.    He asked the


                                        2
court to grant him primary residential custody of the children,

subject to reasonable visitation with the mother.             He also asked
that the mother be ordered to pay him child support retroactive to

January 1992.

       A hearing was held before a special master on June 10, 1993.

Adopting the special master's recommendations in their entirety,

the court accepted jurisdiction and modified the order of the

California court to provide that the children shall reside with

their father and have reasonable visitation with their mother.             It

ordered the mother to pay child support of $150 per child per month

retroactive   to   August   1992.    The court ruled that the father's

obligation to pay child support             under the California decree

continued until August 1992.        The father had paid no child support

to the mother since October of 1990.           Calculating    the   resulting

support liability of each party,          the court ordered the father to

pay the mother $4,820.38 in back child support.


       Did the District Court err in requiring the father to pay back

child support from July 1991 through August         1992?

       The father argues that he should not be required to pay the

mother child support for time during which the children lived with

him.     Rather,   he argues that he is entitled to child support

payments from the mother for that period.            His view as to the

effective date for this has varied.           On appeal,    he contends the

mother should be required to pay him child support from July 1991

forward.   As stated above, his petition for modification asked that

                                      3
she be required to pay child support retroactive to January                   1992.

At the hearing,        he testified that she should be required to pay

support retroactive to May 1992

        Section 40-4-208(l), MCA, provides:

        Except as otherwise provided in 40-4-201(6),          MCA,
         [concerning the terms of a separation agreement] 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.

Under the above statute,        the earliest date to which the District

Court could have retroactively modified the California decree would

be November 1992, when the father filed his motion for modifica-

tion.       The father argues, however,      that the mother is equitably

estopped from seeking back child support from him.

        A   series    of   Montana   cases   has     established     that,     upon

compelling        evidence,   the doctrine of        equitable     estoppel      may
override the provisions of § 40-4-208, MCA.             See In re Marriage of

Sabo    (1986),     224 Mont. 252, 256, 730 P.Zd 1112, 1114.                 'I [Tlhe

equitable principle arises when the                [party against whom it is

applied] has expressly or impliedly consented to an arrangement

other than the payment of the judgment."              In re Marriage of Cook

(1986),     223 Mont. 293, 299, 725 P.2d 562, 566.

        [1]n Montana a decree for support may be modified on
        equitable grounds by a court where there is clear and
        compelling evidence of the terms of an oral agreement of
        modification.      . [Sluch modification may be applied
        only to maintenance and support payments to be made
        subsequent to the oral agreement for modification.

In re Marriage of Jensen (19861, 223 Mont. 434, 439, 727 P.2d 512,

515-16.

        This Court's standard of review of an equitable decision is as
                                        4
provided by 5 3-2-204(5), MCA.         This Court has interpreted that
standard as follows:

      [Wle are guided by a number of principles established by
     this Court. The credibility of witnesses and the weight
     to be given their testimony are matters for the District
     Court's determination in a nonjury case.        Thus, in
     examining the sufficiency of the evidence, we must view
     the same in a light most favorable to the prevailing
     party, and we will presume the findings and judgment by
     the District Court are correct. We will not overturn the
     findings and conclusions of the District Court unless
     there is a decided preponderance of the evidence against
     them, and when the evidence furnishes reasonable grounds
     for different conclusions, the findings of the District
     Court will not be disturbed. The burden of proof is on
     the appellant.

Lumby v. Doetch (1979), 183 Mont. 427, 431, 600 P.2d 200, 202 (cit-
ations omitted throughout).

     Contrary to the suggestion of the dissent, the facts of this

case are not indistinguishable from those in m.                In -I
                                                                  Sabo   the

decree of dissolution gave the mother sole custody of the children,

but, by later agreement of the parties, two of the children lived
with the father.   m, 730 P.2d 1112-13.          Here,   the    dissolution

decree provided for joint legal and shared physical child custody.

The distinction is important to a determination of whether the

parties have agreed to vary the terms of the dissolution decree so

that equitable estoppel may apply

     During the time for which the father now seeks to be relieved

from an obligation of support,         July 1991 to August 1992,         the

children lived with him.      For most of that period, however, this

physical custody arrangement did not differ from that specified in

the California court's November 1990 order.      Under that order, the

children were to spend the 1991-92 school year with their father
                                   5
and the father's obligation for child support was to continue.
Because the father has not demonstrated an agreement for an

arrangement     which differed from the California court's                    order

concerning    the   1991-92   school   year,     we    conclude    that   equitable

estoppel is not applicable for that period.

        At the hearing before the special master, the father intro-

duced into evidence a letter he received from the mother in May

1992.     She wrote:
        Since they've both expressed the wish to go to school
        there, I guess 1'11 have to live with it.

The father testified that he felt the mother owed him child support
from May 1992 forward.        However,       the mother testified that it was

not until August of 1992, after she had spent the summer with her
children, that she finally agreed that they could remain in Montana

with their father.

        In sum, the evidence of an agreement prior to August of 1992

to modify the California decree is conflicting and can hardly be

termed "clear and compelling."           The special master found that an

agreement to modify the California decree occurred in August of

1992. That finding is supported in the record.                  The District Court

relieved the father of his child support obligation from August

1992 forward.

        Absent circumstances justifying the application of equitable

estoppel prior         to August   1992,       and    without     other   statutory

authority to retroactively modify the California court's decree, we

conclude that the District Court did not err in requiring the
                                         6
father to pay back child support due between July 1991 and August

1992.

        Affirmed.


                                        Chief Justice


We concur:




             Justices




                                7
Justice Terry N. Trieweiler        dissenting.
     I dissent from the majority opinion.        The facts in this case

are indistinguishable from those in InreMarriage ofSabo (1987), 224

Mont. 252,     730   P.2d 1112,   and our decision in that case compels

reversal of the District Court's order.
     In the November 13, 1990, order from the Superior Court of the

State of California, Thomas was given custody of this couple's two

children beginning in the summer of 1991 and through the 1991-92
school year.     In what was anything but a thorough or comprehensive

order, the following was the only reference to child support:

          Child support in the amount of $400.00 is ordered
     for both children, payable from Respondent to Petitioner,
     one-half on the first and one-half on the 15th of each
     month, commencing October 1, 1990 and continuintgl until
     further court order or legal cause.

(Emphasis added.)
     There was no further review of the California order because

toward the conclusion of the 1991-92 school year, Diane wrote to

Thomas and agreed that the children could remain with him during

the next school year.        In that regard, she stated that:

     Since they're [sic] both expressed the wish to go to
     school there (Whitefish) I guess I'll have to live with
     it, but we (the kids and I) need to be together as much
     as we can.

     In   effect, Thomas has had the responsibility for raising and

supporting his children since June 21, 1991. Diane neither claimed

child support during that time, nor for that period of time at the

hearing which was held in Montana pursuant to Thomas's motion to

modify.   She claimed support for only the period from October 1,


                                       8
1990,    until June 21, 1991, when the two children moved to Montana
to live with Thomas.        She gave the following testimony in response

to questions from her own attorney:

        Q.   So its your position, then that Mr. Glanville owes
             you that $3200?

        A.   Yeah, but it's more than that.

        Q.   Because of the 21 days in June?

        A.   Right.     Yeah.

        Q.   And that's what you're asking that the court find
             is the $3200 plus for the 21 days?

        A.   Yes.

        Q.   How much is that per day?

        A.   I think it was $13.33 a day.

        Q.   So if my calculator is right, that's an additional
             $279.93?

        A.   Uh-huh.     Yes.

        Q.   So it's your position then that he owes $3479.93?

        A.   (Witness nodded.)

        Clearly then, by her "assent and conduct" Diane consented to

modification of the couple's custody arrangement and child support

obligation long before Thomas's motion to modify was filed in

November 1992.        Whether or not it is equitable to require a parent

to pay his or her former spouse child support during periods of

time when the couple's children are already living with and being

supported by the parent from whom the obligation is claimed, was

previously decided by this Court in MarriageofSabo.     In that case, we

decided the following issue:


                                      9
              Is a non-custodial father, who assumes permanent
        custody and support of the children with the consent of
        the custodial mother, relieved of the obligation to pay
        child support accruing after and during the consensual
        assumption of custody?

Marriage of Sabo , 730 P.2d at 1113

        We answered our own question in the affirmative.                   Because the

facts in that case were so remarkably similar to those in this

case,    citation to substantial portions of our opinion is warranted:

               Thomas Sabo accepted the children into his home and
        raised the children without any support from Stephanie,
        even though she was employed as a real estate agent after
        her return to Bozeman. Stephanie never asserted that her
        current request was founded upon any actual need of her
        children.       Furthermore, she never suggested any implied
        need which had not been satisfied over the years, or
        which had now arisen and could possibly serve to validate
        her action at this belated point.               See [State of Washington ex
        rd.] Blake&e [v. Horton], 72 2 P .2d at I I.5 I .

               Although Thomas took no action to change the terms
        of the divorce decree, he accepted sole responsibility
        for the children's health, welfare and support.    During
        the period of Thomas' care, Stephanie's major contribu-
        tion was sharing her Mexican vacation with Erin.     Such
        inequity cannot validate her claim.     "Although leqallv
        the mother may have been correct in her claim for child
        support, eauitv demands that the claim must fail.    This
        Court has long adhered to such principles of equity."
        Blakedee, 722 P.2d at 1151.

              The Sabo children voluntarily moved in with Thomas.
        During the entire period the children lived with Thomas,
        Stephanie neither pursued support payments in arrears nor
        objected to the shift in custody. Bv her assent and
        conduct, Stephanie consented to the arranqement.    As we
        recently held, "[Tlhe equitable principle arises when the
        mother has expressly or impliedlv consented to an
        arrangement other than the payment of the iudsment." In
        ReMarriageofCook (Mont. 1986), 725 P.2d 562, 566, 43 St.
        Rep. 1732, 1737.     This principle acknowledges that the
        real beneficiaries of the judgment are the children, not
        the person named in the judgment. . .

               .


                                            10
          N e v e r , during the entire period that the Sabo
     children were being raised by Thomas, did Stephanie offer
     any financial assistance to Thomas.     III Cook, we noted
     that circumstances rnav not allow the mother to collect
     child support in arrears, "where the husband has made
     expenditures which constitute substantial compliance with
     the spirit and intent of the decree."    Cook, 725 P.2d at
     566.  Thomas has met both the spirit and the purpose of
     child support obligations. Thomas did not abrogate his
     duties and obligations under the decree of dissolution.
     On the contrary, he assumed the duties of the custodial
     parent by default, after Stephanie relinquished them.

              .   .    .   .

            Under the equitable principles of Blakedee, Cook and
     Jensen, we hold that Thomas substantially complied with
     the decree obligations.        By her assent and conduct,
     Stephanie consented to the shift in custody and support.
     We cannot equitably allow Stephanie to reap a windfall of
     support    payments, if     she never made     the support
     expenditures.      "A party to an agreement which has been
     performed for some length of time is estopped to deny its
     validity."    Jensen, 727 P.2d at 516, 43 St.Rep. at 1895.
     Thomas is therefore relieved of the obligation to pay any
     child support accruing after and during his consensual
     assumption of custody.

Marriage of Sabo , 730 P.2d at 1113-14 (emphasis added).              All that was

said in Sabo applies to this case.             The majority suggests that Sabo

is somehow distinguishable from this case because in Sabo the mother

had been given sole custody, while in this case the parents had

joint custody.             However, that distinction is irrelevant and misses

the whole point of the Sabo decision.             That case simply stands for

the principle that one parent should not be forced to pay support

to the other parent when, in reality,                  he or she is raising and

supporting the very children who are the subject of the support

obligation.           The basis for our Sabo decision was that "where the

husband   has          made     expenditures   which     constitute    substantial
compliance with the spirit and intent of the decree," the mother

may not collect child support in arrears.            Sabo , 730 P.Zd at 1114.

That decision had nothing to do with the fact that the mother had

been given sole custody, as opposed to joint custody. The majority

observes a distinction that truly makes no difference.

       This couple's children lived with Thomas, at his expense, from

June 21,      1991,       to the present time.     During    that   time,   Diane

contributed nothing to their support.            By paying for their support

directly,      Thomas       substantially complied with his obligations

established in the California order.             To hold that Diane can      come

back and collect further support from Thomas for a substantial

period of time during which she expended nothing for support of her

children not only ignores reality, it ignores our prior decisions

on this       subject      and our   obligation to accomplish equity in

dissolution and support proceedings. For these reasons, I dissent

from    the    majority   opinion.   It is this kind of blind adherence to

technicality that breeds disrespect for the law.               I would reverse

the order of the District Court and conclude that Thomas owed no

support to Diane from June 21, 1991--the date on which he assumed

custody of, and the responsibility for the actual support of, his
children.



                                                   Jus ice




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