In Re the Marriage of Shorten

1998 MT 267, 967 P.2d 797, 291 Mont. 317
CourtMontana Supreme Court
DecidedNovember 5, 1998
Docket98-061
StatusPublished
Cited by6 cases

This text of 1998 MT 267 (In Re the Marriage of Shorten) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re the Marriage of Shorten, 1998 MT 267, 967 P.2d 797, 291 Mont. 317 (Mo. 1998).

Opinions

JUSTICE HUNT

delivered the Opinion of the Court.

¶1 Michele Marie Shorten appeals from a judgment of the Thirteenth Judicial District Court, Yellowstone County, that the doctrine [319]*319of equitable estoppel bars her from collecting delinquent child support from Clifford David Shorten. We affirm.

¶2 We restate the issues as follows:

¶3 1. Whether the District Court erred in ruling that equitable estoppel should be applied.

¶4 2. Whether the court erred by failing to permit the mother to examine and cross- examine witnesses relating to the issue of visitation and efforts made by the father to contact the minor child.

¶5 The marriage of Clifford David Shorten (the father) and Michele Marie Shorten (the mother) was dissolved in 1985. The parties are the parents of a daughter born in 1984. In the decree of dissolution, they were awarded joint custody of their daughter, with the mother as the primary residential custodian. The father was granted reasonable visitation and was ordered to pay $100 per month in child support and to maintain the child on his accident and health insurance policy.

¶6 When the marriage was dissolved, the mother and the child lived in Billings, Montana, and the father lived in Jefferson City, Montana. In early 1987, the mother remarried and informed the father that she, her new husband, and the child were moving to Arizona. The mother asked the father to consent to her new husband’s adoption of the child, but the father refused. He instead filed a motion to modify the terms of the custody arrangement to make him the primary physical custodian of his daughter. However, the mother relocated to Arizona before that motion was served on her, and the court never considered the motion.

¶7 The mother did not provide the father with her address or telephone number in Arizona. When the father contacted the mother’s family and asked for her address in Arizona, he was denied that information. The mother and child resided in Arizona for approximately four years, then returned to Billings for three to four months. After that, they moved to Las Vegas, Nevada, for three years. They then moved to Virginia for three months and then to North Carolina for a year. At no time during this period did the mother inform the father of her address or make any demand for child support.

¶8 In May 1995, the mother’s third marriage ended and she again moved back to Billings, Montana. In October of 1996, she contacted the father, who then visited his daughter and began paying child support. The father has maintained health insurance on the child since the parties’ marriage was dissolved.

[320]*320¶9 In April 1997, the mother filed with the Clerk of the Thirteenth Judicial District Court an affidavit in support of writ of execution in which she asserted that the father owed her a total of $18,239.41 for unpaid child support and interest thereon. She executed upon the father’s bank account, obtaining $959. The parties subsequently stipulated to a modification of current and future child support.

¶10 The only issue at trial was whether the mother should be prevented, under the doctrine of equitable estoppel, from collecting back child support prior to April 1997. After a hearing, the District Court entered a written judgment finding that the elements of equitable estoppel were present and concluding that the mother’s conduct barred her from collecting any claimed arrearage in child support. The mother appeals.

ISSUE 1

¶11 Did the District Court err in ruling that equitable estoppel should be applied?

¶12 This issue combines two of the mother’s arguments, that the court did not consider the proper elements of equitable estoppel, and that the court’s findings are not supported by clear and convincing evidence. We first review the elements of equitable estoppel.

¶13 The mother contends that the elements of equitable estoppel in a child support arrearages context are: (1) substantial and continuing change in circumstances rendering enforcement of the original decree of child support inequitable; (2) mutual agreement made between the parties in good faith; and (3) conduct over a period of years consistent with the agreement, citing In re Marriage of Hooper (1991), 247 Mont. 322, 324, 806 P.2d 541, 543. The mother argues that because the court acknowledged that there was no agreement between the parties in this case, “it is impossible for the [c]ourt to have concluded by clear and convincing evidence that there was such an agreement, as required by Hooper and other cases from this Court.”

¶14 In Hooper, the mother sought to recover $23,250 in child support arrearages. The support obligor father testified that he did not know the mother’s feelings during the years in which he did not pay child support, but his impression was that if he stayed away she would not require him to pay it. We agreed with the district court that the father’s impression was not a mutual agreement and that the mother’s contradictory testimony that the father could have requested visitation at any time rendered the equitable estoppel excep[321]*321tion to retroactive modification of child support inapplicable. Hooper, 247 Mont. at 325, 806 P.2d at 543.

¶15 The abbreviated statement of the elements of equitable estoppel in back-due child support cases as set forth in Hooper and upon which the mother relies was first articulated in In re Marriage of Jensen (1986), 223 Mont. 434, 439-40, 727 P.2d 512, 515-16. In Jensen, the mother and father reached an oral agreement to reduce the father’s child support obligation and followed that oral agreement for several years. This Court held that this was an enforceable oral agreement. Jensen, 223 Mont. at 440, 727 P.2d at 515.

¶16 One of the cases relied upon in Jensen was In re Marriage of Cook (1986), 223 Mont. 293, 725 P.2d 562. In Cook, the Court took a broad view of the “agreement” aspect of estoppel concerning past due child support, stating, “[t]he courts are generally reluctant to state any general rule as to when an estoppel arises, but generally the equitable principle arises when the mother has expressly or impliedly consented to an arrangement other than the payment of the judgment.” Cook, 223 Mont. at 299, 725 P.2d at 566 (emphasis added) (citing State of Washington ex rel. Blakeslee v. Horton (1986), 222 Mont. 351, 722 P.2d 1148 and Headley v. Headley (Ala. 1964), 172 So.2d 29, 33). This articulation was narrowed, without explanation, in Jensen. It was this narrower version which was later set forth in the list of elements of equitable estoppel in child support arrearages cases in Hooper.

¶17 We hold that the “agreement” element of equitable estoppel as set forth in Hooper and Jensen

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In Re the Marriage of Shorten
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Bluebook (online)
1998 MT 267, 967 P.2d 797, 291 Mont. 317, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-shorten-mont-1998.