                                       No.     95-157
                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                             1995


IN RE THE SUPPORT OBLIGATION             OF:
STUART ANTHONY DAY,
     Absent parent   Plaintiff
     and Respondent,
         -v-
STATE OF MONTANA, DEPARTMENT OF
SOCIAL AND REHABILITATION SERVICES,
CHILD SUPPORT ENFORCEMENT DIVISION,
         Defendant    and Appellant.




APPEAL FROM:         District  Court of the Seventeenth  Judicial   District,
                     In and for the County of Phillips,
                     The Honorable   John C. McKeon, Judge presiding.


COUNSEL OF RECORD:
               For   Appellant:

                      Ann Hefenieder,        Department       of    SRS, Child           Support
                      Enforcement     Division,     Billings,        Montana

               For   Respondent:

                      Loren J. O'Toole,         II,   O'Toole   & O'Toole,      Plentywood,
                      Montana



                                             Submitted     on Briefs:         June      20,     1995

                                                                   Decided:      July         21,   1995

Filed:
Justice          James            C. Nelson                 delivered                the        Opinion            of     the         Court.


           The plaintiff,                       Stuart           Anthony             Day (Day),               brought             a petition              in

the       District                Court             seeking             review             of     a        decision              of      the          Child

Support               Enforcement                     Division                 (CSED)             that             his          child           support
obligation                  was         past           due        and         permitting                   CSED           to      begin          income

withholding                  to     satisfy               the     arrearage.                     The District                    Court          for     the

Seventeenth                 Judicial                District,            Phillips                County,            reversed             the     agency

decision              holding            that         CSED's           action          on child              support             arrearage              was
barred          under             the      statute              of      limitations                   of     the         Fort          Peck      Tribal

Code.           CSED's            motion            for      reconsideration                       of       that         order          was denied.

CSED appeals.                       We reverse                   and remand.
           The        issues            on appeal                are:

           1.         Did        the      District               Court         err     by holding                      that      the      Fort         Peck

Tribal          Code's             statute             of       limitations                 applies               in      this         case      rather

than       Montana's                   longer          statute           of     limitations?

           2.         Did         the      District                  Court      err         by     holding                that         CSED cannot

enforce          the         Tribal             Court           judgment             without             initiating                   an action           in

District              Court?

           Stuart           Anthony             Day and Vina                  Buckles              (Buckles)               were         divorced          in

Nevada           on March                 15,        1982.             They          were        the        parents              of      four         minor

children,              for        whom Day was ordered                                to pay           support             in     the     amount          of
$200.00              per     child            per      month,           beginning                April         1,        1982.

           Sometime                thereafter,                   the     parties                moved        to         Montana          and agreed

to modify              Day's            support             obligation.                    On March               18,      1983,         the     Tribal

Court           of         the         Fort          Peck         Indian             Reservation,                        entered           an         order

incorporating                       the         agreement                and         modifying                Day's              child          support
                                                                               2
obligation.
          In          June            1983,            Buckles           applied                 for         and            received              public
assistance                 through              Aid      to Families                with      Dependent                     Children             (AFDC).

Under           the        applicable                    state         and     federal                 laws,               she     assigned              her

rights          to       child            support             payments         to        CSED.

          On August                       11,     1983,          and     again           on        July          1,        1986,         the      Tribal

court           issued                orders             requiring             the          payment                   of      past-due                child

support.                 All         four        children             have        now reached                     18 years               of     age and

the      last         month           any benefits                    were     paid         by AFDC was February                                  1990.
          On July               15,         1993,        CSED sent            Day a notice                   of         intent        to withhold

portions              of       his        wages          for      payment           of      past-due                  child        support.                   An

amended           notice               of       intent           to    withhold             was         sent           to        Day by         CSED on

September                7,      1993.            Day contested                   CSED's            decision                  to   withhold              for

past-due              support              and a telephonic                    hearing             before              the Administrative

Law Judge                  (ALJ)          was held             on September                 8,      1993.

          At      the          hearing,                Day presented                  a written                   memorandum                   that      the

Fort       Peck            Tribal               Code's         five-year             statute                of        limitations                 barred
enforcement                    of      the       judgments             obtained               in       1983           and        1986.           Section

306 of           Title           VI       of     the      Fort        Peck     Tribal              Code provides:

           Life    of judgment.        No judgment     of the court    for money
           shall    be enforceable      after   five    (5) years from the date
           of entry,    unless    application      to renew the judgment      shall
           have been filed      before     the date of expiration    pursuant       to
           Section    307.
           Contrary                  to     Day's         contention                that       the          judgments              had expired,

CSED            argued               that          Montana's                 ten-year                  statute                of      limitations

concerning                    collection                 of    past-due             child          support,                 as provided                 by §

27-2-201(3),                        MCA (1993),                  was     applicable                    in        this         case.             The      ALJ


                                                                              3
agreed          and       in      his          order           of         December                  6,     1993,             ruled          in      favor               of
CSED.         Day was found                         to owe a total                          of     $24,226.00                 in past-due                       child

support.

          Day         appealed                      to        the           District                     court           arguing                  that             his
substantial                    rights               had        been              prejudiced.                         The            District                    Court
reversed            the          ALJ's               order            and            stayed               CSED       from             enforcing                    any

decision           to     withhold                   income               for        delinquent                  child         support               based              on

the      Tribal          Court            judgment.                        The           District            Court             held         that           CSED's

action        on child                 support                arrearage                    stemming              from         the      1983          and         1986

Tribal        Court            judgments                  was barred                        under         the       five-year                    statute                of

limitations               of      the          Fort           Peck         Tribal                Code.           Moreover,               the         District

Court      ruled          that,           in order                  for         CSED to collect                      any non-barred                             child

support,           CSED would                   be required                          to     proceed              judicially,                     instead                of

proceeding               with           its         administrative                               income-withholding                              procedure.
CSED's          motion            to          the        District                    Court          for      reconsideration                               of      its

order         was         denied.                        CSED             appeals                 the      District                   Court's                   order
reversing             the       agency              decision                as well                as the          court's             order           denying

CSED's        Motion             for          Reconsideration.

                                                                            Issue            1

          Did       the         District                   Court            err            by      holding              that          the         Fort           Peck

Tribal          Code's           statute                 of     limitations                         applies             in     this         case           rather

than      Montana's               longer                 statute                of        limitations?

          The         ALJ          determined                         that                Montana's                 lo-year                  statute                    of

limitations                 applies             in the              case before                     us on appeal.                       The ALJ cites

the      United           States               Supreme               Court's                 decision              in        Roche          v.       McDonald

 (1928),           275          U.S.           449,            48          S.Ct.                142,       72       L.Ed.             365,            for          the


                                                                                     4
proposition                   that         a state               with         a longer                  statute           of       limitations                   can
enforce         the            judgment                of        a sister                state               which         judgment                 would          be

barred         by        the        sister            state's             shorter                 limitation                    period.              The ALJ
concluded                that         the         Fort           Peck         Tribe              should             be     afforded                 the         same

status         as a sister                     state             and entitled                    to       full          faith          and credit                for
its      judgment.

          The        District                  Court             reversed                the          ALJ          concluding                 that             under

Wippert         v.         Blackfeet                  Tribe             (1982),              201         Mont.            299,          654      P.2d           512,

full        faith             and       credit               does         not           apply            to        Indian              tribes.                  More

correctly                stated,               full          faith            and        credit                   does      not         apply             to     the
orders,         judgments                     and        decrees               of       Indian                tribal            courts.                  Rather,

Montana         treats               tribal           court          judgments                   with         the       same deference                         shown

decisions             of        foreign               nations            as a matter                         of     comity.               Wippert,               654

P.Zd      at    515.

          The District                        Court         noted         that           foreign                  judgments             must         meet        the

requirements                   of the Uniform                       Foreign              Money-Judgments                           Recognition                   Act

(the      Recognition                      Act)         found            at     Title             25,         Chapter             9,      part           6,     MCA.

The Recognition                         Act,          effective                 October                 1,        1993,         provides                 for     the

enforcement                   of      a judgment                   of     a foreign                      state           granting              or        denying

recovery            of        a sum of money.                           Specifically,                         the       District              Court            noted

that        under              the         Recognition                        Act,           a        foreign               judgment                 must          be

enforceable                   where           rendered.                 Section              25-g-603,                   MCA.          The court                held

that        since             the      action               in     the         case          before                us     on appeal                 is         time-

barred         in        the        Fort        Peck         Tribal            Court,              it        is     no longer                 enforceable

and fails                to     meet          the      requirement                      of       5 25-g-603,                    MCA.

          On appeal,                       CSED contends                         that            given              the         enactment                 of      the


                                                                                    5
federal           Full       Faith           and Credit            for         Child       Support            Orders          Act      (the
Child         Support         Act),          which was effective                      prior      to the District                     Court
reaching             its      decision,            the     court              on judicial              review           should        have
applied           the provisions                  of the Child                Support         Act to uphold                   the ALJ's
order.            Day contends                 that      since       the Child                Support             Act    was not         in
place         at the time                of this        action           it     does not apply.
            Our      review             of     a district                court's              conclusions                of     law      is
plenary.             We simply               determine       whether             the court's                interpretation               of
the law is correct.                            Steer,       Inc.     v. Department                     of Revenue               (lYYO),
245 Mont.             470,        474-75,         803 P.Zd 601,                  603.
            Although,             generally,            the District                 Court's         statements            regarding
the Recognition                     Act were correct,                         the court's            application                of that
Act      in     this         case was erroneous.                         As regards              child            support           orders
issued          in     Indian            tribal         courts,           Indian           tribes        are        deemed to            be
“States,”             28 U.S.C.              § 1738B(b),           and are,            therefore,                 excepted          out of
the      definition                of        "foreign       states"              under         the      provisions               of     the
Recognition                  Act.              Section         25-Y-602(2),                     MCA.                Additionally,
judgments              for        support         in     matrimonial                  or      family          matters          are      not
considered                 "foreign           judgments"          under the Recognition                             Act.        Section

25-Y-602(1),                 MCA.            Hence,      the Recognition                      Act      is     not       applicable,
and the District                      Court       was incorrect                  in applying                its     provisions            in
the instant                 case.
            That       brings           us to      the      Child             Support         Act,       the        provisions            of
which          the     District               Court      declined               to     apply.            In       1994,        Congress
determined                 that     a lack         of uniformity                     in the         laws          regarding           child
support           orders          encouraged            noncustodial                 parents          to relocate              to other

                                                                     6
states     to avoid          the jurisdiction                 of the courts              of the home state.
This contributed             to relatively              low levels         of child            support     payments
in    interstate           cases     and to          inequities            in    child         support       payment
levels     that     are based solely                 on the noncustodial                 parent's          choice      of
residence.          To counteract             this     problem,          Congress        enacted         Public     Law
103-383,         known as          the     Full       Faith       and Credit             for      Child      Support
Orders     Act      (28 U.S.C.           § 1738B (1994)).
         As mentioned          above,         the Child         Support         Act defines         a "State"          to
include       "Indian       country."          28 U.S.C.          § 1738B(b).             Additionally,             the
Act provides:
                 PERIOD OF LIMITATION.--In      an action  to enforce    a
         child support order,      a court shall apply the statute     of
         limitation     of the forum State or the State of the court
         that     issued the order,   whichever    statute provides   the
         longer period of limitation.        [Emphasis added.]
28 U.S.C.          § 1738B(g) (3)             (1994).
         We have previously                held that          an appellate          court        must apply         the
law in effect           at the time            it    renders       its     decision.             In re Marriage
of    Elser        (19951,        895 P.Zd           619,       52 St.Rep.          434,         (citing      Haines
Pipeline       v. MPC (lPPl),               251 Mont.           422,     433,      830 P.2d 1230,             1238).
An appellate          court       must give          effect       to the latest                enactment      of the
legislature          and must decide                 each case in accordance                      with      existing
laws.      See, United             States       v.    Schooner           (1801),     5 U.S.         103,     2 L.Ed.
49.      Moreover,         this     rule      applies         regardless           of whether            the change
is constitutional,                 judicial          or statutory.              Thorpe v. Housing                 Auth.
of the City         of Durham (1969),                 393 U.S.         268, 282, 89 S.Ct.                  518, 526,
21 L.Ed.2d          414,     484.        As we pointed             out in Haines,                however,         there
is an exception              to the general              rule      when application                 of a new law

                                                            7
would           result               in         manifest              injustice,                     which         we       have           defined               as
occurring              when application                              of      the         new law            impairs             a vested               right.

Haines,              830 P.2d                  at    1238.          We have              also        held        that      a judgment                   is     not

vested          while           it        is        subject         to review              or while               an appeal                is     pending.

Haines,              830 P.2d              at        1238;       Brockie            v.     Omo Construction,                           Inc.            (1994),
268 Mont.              519,           526,            887 P.2d            167,           171.

              Since        the       Child                Support       Act        was effective                    on October                   20,     1994,
prior           to     the           District                   Court         rendering                its         decision,                    the      court
should           have           applied                   the    provisions                     of    this         Act          and        should             have

enforced               the           longer                period            of      limitation                    provided                by         Montana

statute.
              We next                must             determine               which              Montana            lo-year                 statute              of

limitations                  is           the         correct           one         to     apply            in     this          case.                The       ALJ

concluded                that         5 27-2-201(3),                         MCA (1993),                    applied.                  However,                that

statute              provides:

               [tlhe  period   prescribed       for the commencement of an action
              to collect     past-due     child    support      that has accrued after
              October 2, 1993, under an order entered                       by a court  of
              record    or administrative         authority       is within    10 years of
              the termination       of the support          obligation.

Section              27-2-201(3),                         MCA (1993).               (Emphasis               added.)              Since           the         child

support              arrearages                      in    the      instant              case        accrued            prior         to        October              1,

1993,          this        statute                   cannot          apply          to     the        case         before             us on appeal.

Rather,              the     correct                  statute           to        apply         is    § 27-2-201(l),                       MCA (1993),

which          provides:

              the period     prescribed     for the commencement   of an action
              upon a judgment        or decree of any court   of record     of the
              United   States    or of any state within   the United    States   is
              within   10 years.
See In           re Marriage                         of     Brown         (1994),           263 Mont.                   184,      867 P.2d                   381.

                                                                                    8




        ~-,
          Accordingly,                          we hold             that,             by reason                 of        the        applicability                        of
the     Child            Support                Act        to      this             case,         Montana's                     lo-year                statute            of
limitations                    as provided                      by § 27-2-201(l),                               MCA (1993),                        applies.

          In closing                      our     discussion                     on this           issue,                 however,                and,          in view

of      our         holding                that            the       District                   Court           erred                 in      applying                  the

Recognition                    Act        in     this           case,          we believe                 it         is        appropriate                     to     also

point         out        that        we are             not        deciding                here     whether                    the         Recognition                 Act

(enacted             as Ch. 441,                      L.        1993)          is     applicable                     to        Indian          Tribal               Court

orders,             judgments                  and decrees                     that        do not          involve                   child         support              nor
do we express                    any opinion                       with         regard            to the             interplay                 between                that

Act,          the         Uniform                 Enforcement                         of          Foreign                  Judgments                      Act          (the
Enforcement                    Act;            found          at     Title            25,         Chapter                 9,     part         5,         MCA),          and

our      decision                    in        Wivvert              as         regards             such              orders,                 judgments                  and

decrees             which            do not             involve              child          support.

                                                                             Issue          2

          Did        the        District                Court            err        by holding                 that            CSED cannot                      enforce

the     Tribal             Court           judgment                 without               initiating                      an action                    in District

Court?

          Under                our        decision                  in       Wivpert,                the             orders,                 judgments                  and

decrees             of     an Indian                    Tribal             Court            are      not            entitled                 to         full         faith

and credit.                     Rather,               we determined                         that       such               orders,             judgments                 and

decrees              are         to        be         treated                with           the        same               deference                      shown          the

decisions                 of     foreign                nations                as a matter                     of     comity.                     Wivvert,              654

P.2d       at       515.             As a result,                        under            the      rule         in         Wivvert,                    absent          some

specific                 statute                granting                  full            faith           and             credit             or          a      statute
specifying                     some            other             procedure                  for        enforcement,                               in         order           to


                                                                                      9
enforce          an order,                   judgment                  or decree                  of an Indian                      Tribal            Court,             the
holder           must           bring            an        action                  or        special              proceeding                     in         District
Court.            Wimert,                    654 P.2d                  at          515.           See also,                44 Op.Att'y                       Gen.         15
(1991).

          Where,               however,               the            order,               judgment               or      decree             of        the      Indian
Tribal          Court            is        entitled              to         full          faith           and credit,                   then          the      holder

may,      but       is        not      required                 to      "sue            out"        the         order,           judgment              or decree
in     an      action                 or     special                   proceeding                    in         District                Court.                 In        the

alternative,                     the         holder             of      an Indian                   Tribal            Court             order,              judgment
or     decree               entitled                 to         full             faith            and       credit                  may      also            use         the

simplified                    registration                       procedures                       set       forth              in     the         Enforcement
Act.         Sections                  25-p-502                 and 25-p-503,                           MCA.

            The Enforcement                           Act         provides                   a procedure                    for         the       filing             of        a

foreign           judgment                   with         the          clerk            of     the        district                  court         and permits
the      clerk           to         treat           the         foreign                 judgment                 in      the         same manner                     as        a

judgment               of        the         district                   court.                    Section                25-g-503,                    MCA.               For

purposes                 of         the        Enforcement                           Act,           a       "foreign                  judgment"                     is         a

"judgment,                  decree,             or        order             of       a court               of     the       United               States             or    of

any other                court             which          is     entitled                    to full             faith          and credit                    in     this

state."             Section                  25-g-502,                  MCA.              (Emphasis               added.)

            Since              child           support                   orders                of         Indian               tribal             courts                 are

entitled            to         full          faith             and credit                    under         the        Child           Support               Act,         the

simplified                    registration                           procedures                     of          the        Enforcement                      Act          are

available                in      addition                 to      the          procedure                   of     enforcing                   such          an order

by       way      of          an       action              or          special                 proceeding                   in        district                  court.

Sections               25-p-502,                     25-p-503,                      and        25-g-507,                 MCA.               Such            a tribal


                                                                                        10
court       order         or      judgment               may be either                        filed            in     the         office           of     the
clerk        of     any         district                court        in     Montana,                     in     accordance                   with         the
procedures               set          forth          under         the       Enforcement                        Act         or       sued         out       in

District           Court         by way of               an action               or special                   proceeding                   to enforce

the      judgment.
           Additionally,                      with       respect           to      child            support               orders            involving

public         assistance                  under         Title        IV-D          of        the         Social            Security               Act,          a

third        alternative                   is      available               for      enforcement.                            Under           Montana's

Child       Support             Enforcement                 Act,          found          at     Title               40,      Chapter              5, part

4,      MCA,       withholding                    of       income          to       pay         child               support            is         allowed

without           the     need          for       court          action.            Section                   40-5-402(4),                   MCA.           To
protect           the     child            support           debtor's              due process                       rights,               the      income

withholding               process                provides            for         notice             of        an intent               to     withhold

income,            §     40-5-413,                   MCA,         and        an      opportunity                            for       pre-seizure

hearings,               § 40-5-414,                  MCA.

           The      Child             Support              Enforcement                   Act          applies                to      all          support

obligations               being          enforced            or collected                     by the            Department                  of Social

and Rehabilitation                         Services,               as in the               instant                  case.          Section              40-5-

402(2),           MCA.          Under            this      Act,       a "support                    order"                includes               an order

of      a court          of     appropriate                  jurisdiction                      of        another             state.               Section

40-5-403(7),                   MCA.              Since          Indian           tribes              are        deemed              "states"               for

purposes           of         child        support              orders           under          the           federal              Child          Support

Act,       Montana's              Child           Support          Enforcement                  Act           may be employed                       in     the

instant           case         as well.

           Consequently,                      in instances                 where         the        Child            Support          Enforcement

Act        applies,              the            creditor            may          either               commence                    administrative


                                                                           11
enforcement            proceedings,          including        income        withholding,        register          the
judgment        with      the   District        Court      under      the      Enforcement       Act     or     file

an action            or a special          proceeding        in    District        Court     to enforce           the



          Accordingly,            we hold        that      the      District        Court      erred       in     its

ruling        that     CSED cannot          enforce        the     Tribal       Court      judgment      without

initiating            an action       in    District         Court.

          Reversed        and remanded          for      further      proceedings           consistent          with




                                                           12
