                                                                                               11/15/2016


                                            DA 16-0082
                                                                                           Case Number: DA 16-0082

                   IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2016 MT 295N



IN RE THE MARRIAGE OF:

SANDRA MURRAY LEE,

               Petitioner and Appellee,

         And

AMOS ABRAHAM LEE,

               Respondent and Appellant.



APPEAL FROM:            District Court of the Nineteenth Judicial District,
                        In and For the County of Lincoln, Cause No. DR 15-32
                        Honorable James B. Wheelis, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                        Robert W. Snively, Attorney at Law, Hardin, Montana

                 For Appellee:

                        Ann C. German, Attorney at Law, Libby, Montana



                                                    Submitted on Briefs: October 5, 2016

                                                               Decided: November 15, 2016


Filed:

                        __________________________________________
                                          Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Amos Abraham Lee appeals an order of the Nineteenth Judicial District Court,

Lincoln County, denying his motion to modify child support as to arrears before the date

he filed the motion. We address whether the District Court erred in its ruling. We affirm.

¶3     In June 2007, Amos and Sandra Murray Lee dissolved their marriage. Pursuant to

the dissolution decree, Amos was required to pay $934 per month in child support for the

parties’ two children. A letter from Sandra to Amos, dated October 20, 2009, and signed

by both parties (2009 Letter), states, in relevant part: “You are no longer required to pay

child support . . . .” On December 22, 2014, Amos filed a motion to modify child

support, requesting that the District Court adopt the 2009 Letter as a child support

modification order. Sandra opposed the motion, and the District Court held a hearing,

during which both parties testified. On January 8, 2016, the District Court denied Amos’

motion to modify child support as to arrears before the date he filed the motion but held:

“The motion to modify child support may proceed as to modification after the date of

filing.” Amos appeals the District Court’s denial of his motion as to arrears, contending

that the 2009 Letter modified his child support obligation.




                                             2
¶4     We review a district court’s findings of fact for clear error and its conclusions of

law for correctness. In re Marriage of Albinger, 2002 MT 104, ¶ 9, 309 Mont. 437,

47 P.3d 820. “Additionally, we review a district court’s decision regarding modifications

to child support to determine whether the district court abused its discretion.” Albinger,

¶ 9.

¶5     Pursuant to § 40-4-208(1), MCA, a district court may modify a child support order

“only as to installments accruing subsequent to actual notice to the parties of the motion

for modification.” Additionally, “[i]t is ‘established law in Montana that neither laches

nor equitable estoppel applies to recovery of child support arrears.’” Pfeifer v. Pfeifer,

2013 MT 129, ¶ 14, 370 Mont. 158, 301 P.3d 821 (quoting Schmitz v. Engstrom,

2000 MT 275, ¶ 14, 302 Mont. 121, 13 P.3d 38). The only exception occurs when the

parties establish, by “clear and convincing evidence,” that there is: (1) a substantial and

continuing change in circumstances rendering the original support decree inequitable; (2)

a mutual agreement between the parties made in good faith; and (3) conduct consistent

with the agreement over a period of years. Pfeifer, ¶ 14. The District Court denied

Amos’ motion on the basis that “[t]here was no agreement in good faith between the

parties rendering the collection of arrears in child support inequitable,” because the

District Court determined that Sandra agreed to waive child support only to avoid further

custody battles during her move from Montana to Utah.

¶6     “[T]he weight of the evidence and the credibility of the witnesses are exclusively

the province of the trier of fact and, in the event of conflicting evidence, it is within the

province of the trier of fact to determine which will prevail.” In re Marriage of Bliss,


                                             3
2016 MT 51, ¶ 17, 382 Mont. 370, 367 P.3d 395 (citation omitted).               During the

December 18, 2015 hearing, the parties presented conflicting evidence. Sandra testified

that, when she told Amos she was moving to Utah, Amos told her he would only let her

take the children if she drafted an agreement stating that he no longer needed to pay child

support. Amos testified that he never proposed not paying child support. The District

Court, as the trier of fact, weighed the evidence before it and found that Sandra’s

testimony was more credible. This finding is not clearly erroneous. Therefore, the

District Court’s finding that Amos did not supply “clear and convincing evidence” that

the 2009 Letter was drafted “in good faith” is not clearly erroneous. See Pfeifer, ¶ 14.

Accordingly, the District Court correctly concluded that Amos did not meet the exception

to the notice-of-motion requirement set forth in § 40-4-208(1), MCA. See Pfeifer, ¶ 14.

The District Court did not abuse its discretion by denying Amos’ motion to retroactively

modify the parties’ child support arrangement.

¶7     We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. In the opinion

of the Court, the case presents a question controlled by settled law or by the clear

application of applicable standards of review. The District Court’s interpretation and

application of the law were correct, its findings of fact are not clearly erroneous, and its

ruling was not an abuse of discretion. We affirm.


                                                 /S/ JAMES JEREMIAH SHEA




                                             4
We Concur:

/S/ PATRICIA COTTER
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ JIM RICE




                      5
