DA 11-0231 December 20 2011
IN THE SUPREME COURT OF THE STATE OF MONTANA 2011 MT 313
IN THE MATTERS OF THE GUARDIANSHIPS AND CONSERVATORSHIPS OF M.A.S. and C.M.S.,
Incapacitated and Protected Persons.
V.L-S.,
Petitioner and Appellee,
v.
M.S.,
Respondent and Appellant.
APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark County, Cause Nos. ADG 08-39 and ADG 08-40 Honorable Dorothy McCarter, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Brian J. Miller (argued); Morrison, Motl & Sherwood, PLLP; Helena, Montana
For Appellee:
David L. Jackson (argued), Iris H. Basta; Jackson, Murdo & Grant, PC; Helena, Montana
Argued and Submitted: November 9, 2011
Decided: December 20, 2011
Filed:
__________________________________________ Clerk Justice Beth Baker delivered the Opinion of the Court.
¶1 M.S. (Father) appeals the First Judicial District Court’s order requiring him to
provide support for his disabled adult twin sons. We consider on appeal whether § 40-6-
214, MCA, grants authority for the District Court’s ruling.
PROCEDURAL AND FACTUAL BACKGROUND
¶2 M.A.S. and C.M.S. are the twin children of Father and V.L-S. (Mother), who
divorced when the twins were eight years old. Now twenty-two years old, the twins were
born with significant physical and mental disabilities and require full-time care and
supervision. C.M.S. is legally blind, does not speak, cannot walk independently, and
cannot take any food by mouth but instead receives a liquid diet through his abdomen.
M.A.S. is autistic, has significant cognitive delays, and cannot be left alone for any length
of time. Both twins live with Mother, who has modified her home to accommodate their
unique needs.
¶3 Upon dissolution of his marriage to Mother, Father was ordered to pay child
support. The twins graduated from high school on June 6, 2009, and turned nineteen
years old approximately two months later. Pursuant to § 40-4-208(5), MCA, and in the
absence of a written agreement to continue providing support beyond the age of majority,
Father’s obligation to provide for the twins under the child support order ceased upon
their graduation from high school.
2 ¶4 After the twins turned eighteen, Mother petitioned the court for appointment as
each boy’s conservator and guardian. The District Court granted Mother’s petitions on
March 24, 2009. The court found the twins were “incapacitated persons” in need of
protection and granted Mother all powers and duties of a guardian of an incapacitated
person, as described in § 72-5-321, MCA.
¶5 On June 4, 2009, Mother filed a petition in the conservatorship actions, requesting
continued child support from Father once the twins turned nineteen. In its August 5,
2009 order, the District Court first determined that it could not order child support under
the Uniform Child Custody Jurisdiction and Enforcement Act, which defines a “child” as
“an individual who has not attained 18 years of age.” Section 40-7-103, MCA. The
court proceeded to consider § 40-6-214, MCA, which it held abrogated the common law
and provided the court with authority to order a parent to support an adult child who is
poor and unable to maintain himself, if the parent does not do so. Nevertheless, because
“[Father] has given no indication that he will not assist in supporting the twins[,]” the
court concluded the statute did not allow an order imposing such support.
¶6 On April 19, 2010, Mother filed a second petition in the conservatorship actions,
alleging Father had not provided meaningful support for the twins since the court’s
August 2009 order. Relying again on § 40-6-214, MCA, the District Court found it had
the authority to order Father to support the twins based on information he was not
providing for them to the extent of his ability. The court ordered the parties to submit
3 financial affidavits. Father appealed, contending the court lacked the statutory authority
to order support. The two proceedings have been consolidated on appeal.
STANDARD OF REVIEW
¶7 We review a district court’s conclusions of law for correctness. Emmerson v.
Walker, 2010 MT 167, ¶ 20, 357 Mont. 166, 236 P.3d 598.
DISCUSSION
¶8 Whether the District Court had statutory authority to order Father to support his incapacitated adult children.
¶9 The District Court relied on § 40-6-214, MCA, codified among statutes governing
the Obligations of Parents, which states, “it is the duty of the father, the mother, and the
children of any poor person who is unable to provide self-maintenance by work to
maintain that person to the extent of their ability.” Citing § 40-4-208(5), MCA, which
concerns child support obligations upon termination of a marriage, Father argues his legal
obligation to provide child support terminated when the twins graduated from high school
or, at the latest, on their nineteenth birthday. Father cites previous rulings of this Court
for the proposition that pursuant to a marital dissolution decree, a parent’s obligation to
provide child support terminates when the child becomes an adult. Chrestenson v.
Chrestenson, 180 Mont. 96, 99, 589 P.2d 148, 150 (1979); Tefft v. Tefft, 192 Mont. 456,
462, 628 P.2d 1094, 1097 (1981); Torma v. Torma, 198 Mont. 161, 164, 645 P.2d 395,
397 (1982).
4 ¶10 Mother’s petitions, however, were not filed in the parents’ marital dissolution
proceeding but under the statutes governing a conservator and guardian. The District
Court declared the twins “incapacitated persons” under § 72-5-101, MCA, meaning each
suffers from “physical illness or disability . . . to the extent [he] lacks sufficient
understanding or capacity to make or communicate responsible decisions[.]” Mother was
appointed, and continues to be, the guardian and conservator of both twins. Her rights
and duties in this position are outlined in the guardianship and conservatorship statutes,
which include the right to “institute proceedings to compel any person under a duty to
support the ward or to pay sums for the welfare of the ward to perform that person’s
duty.” Section 72-5-321(2)(d)(i), MCA. We held in a prior case that § 40-4-208(5),
MCA, and Torma did not apply to a mother’s request for support where the mother had
brought her action under the Uniform Parentage Act, rather than in the context of a
marriage dissolution. In re W.L., 259 Mont. 187, 192, 855 P.2d 521, 524 (1993).
Likewise, Mother’s petitions here were not filed in the dissolution proceeding.
¶11 Under Montana law, the relationship between parent and child “extends equally to
every child and to every parent, regardless of the marital status of the parents.” Section
40-6-103, MCA. Irrespective of the parents’ prior marriage and its subsequent
dissolution, the instant petitions are filed directly on behalf of Father’s two adult children,
not on behalf of their mother. Since the laws governing guardians and conservators grant
express authority for the guardian to bring an action for support, the operative question is
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DA 11-0231 December 20 2011
IN THE SUPREME COURT OF THE STATE OF MONTANA 2011 MT 313
IN THE MATTERS OF THE GUARDIANSHIPS AND CONSERVATORSHIPS OF M.A.S. and C.M.S.,
Incapacitated and Protected Persons.
V.L-S.,
Petitioner and Appellee,
v.
M.S.,
Respondent and Appellant.
APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark County, Cause Nos. ADG 08-39 and ADG 08-40 Honorable Dorothy McCarter, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Brian J. Miller (argued); Morrison, Motl & Sherwood, PLLP; Helena, Montana
For Appellee:
David L. Jackson (argued), Iris H. Basta; Jackson, Murdo & Grant, PC; Helena, Montana
Argued and Submitted: November 9, 2011
Decided: December 20, 2011
Filed:
__________________________________________ Clerk Justice Beth Baker delivered the Opinion of the Court.
¶1 M.S. (Father) appeals the First Judicial District Court’s order requiring him to
provide support for his disabled adult twin sons. We consider on appeal whether § 40-6-
214, MCA, grants authority for the District Court’s ruling.
PROCEDURAL AND FACTUAL BACKGROUND
¶2 M.A.S. and C.M.S. are the twin children of Father and V.L-S. (Mother), who
divorced when the twins were eight years old. Now twenty-two years old, the twins were
born with significant physical and mental disabilities and require full-time care and
supervision. C.M.S. is legally blind, does not speak, cannot walk independently, and
cannot take any food by mouth but instead receives a liquid diet through his abdomen.
M.A.S. is autistic, has significant cognitive delays, and cannot be left alone for any length
of time. Both twins live with Mother, who has modified her home to accommodate their
unique needs.
¶3 Upon dissolution of his marriage to Mother, Father was ordered to pay child
support. The twins graduated from high school on June 6, 2009, and turned nineteen
years old approximately two months later. Pursuant to § 40-4-208(5), MCA, and in the
absence of a written agreement to continue providing support beyond the age of majority,
Father’s obligation to provide for the twins under the child support order ceased upon
their graduation from high school.
2 ¶4 After the twins turned eighteen, Mother petitioned the court for appointment as
each boy’s conservator and guardian. The District Court granted Mother’s petitions on
March 24, 2009. The court found the twins were “incapacitated persons” in need of
protection and granted Mother all powers and duties of a guardian of an incapacitated
person, as described in § 72-5-321, MCA.
¶5 On June 4, 2009, Mother filed a petition in the conservatorship actions, requesting
continued child support from Father once the twins turned nineteen. In its August 5,
2009 order, the District Court first determined that it could not order child support under
the Uniform Child Custody Jurisdiction and Enforcement Act, which defines a “child” as
“an individual who has not attained 18 years of age.” Section 40-7-103, MCA. The
court proceeded to consider § 40-6-214, MCA, which it held abrogated the common law
and provided the court with authority to order a parent to support an adult child who is
poor and unable to maintain himself, if the parent does not do so. Nevertheless, because
“[Father] has given no indication that he will not assist in supporting the twins[,]” the
court concluded the statute did not allow an order imposing such support.
¶6 On April 19, 2010, Mother filed a second petition in the conservatorship actions,
alleging Father had not provided meaningful support for the twins since the court’s
August 2009 order. Relying again on § 40-6-214, MCA, the District Court found it had
the authority to order Father to support the twins based on information he was not
providing for them to the extent of his ability. The court ordered the parties to submit
3 financial affidavits. Father appealed, contending the court lacked the statutory authority
to order support. The two proceedings have been consolidated on appeal.
STANDARD OF REVIEW
¶7 We review a district court’s conclusions of law for correctness. Emmerson v.
Walker, 2010 MT 167, ¶ 20, 357 Mont. 166, 236 P.3d 598.
DISCUSSION
¶8 Whether the District Court had statutory authority to order Father to support his incapacitated adult children.
¶9 The District Court relied on § 40-6-214, MCA, codified among statutes governing
the Obligations of Parents, which states, “it is the duty of the father, the mother, and the
children of any poor person who is unable to provide self-maintenance by work to
maintain that person to the extent of their ability.” Citing § 40-4-208(5), MCA, which
concerns child support obligations upon termination of a marriage, Father argues his legal
obligation to provide child support terminated when the twins graduated from high school
or, at the latest, on their nineteenth birthday. Father cites previous rulings of this Court
for the proposition that pursuant to a marital dissolution decree, a parent’s obligation to
provide child support terminates when the child becomes an adult. Chrestenson v.
Chrestenson, 180 Mont. 96, 99, 589 P.2d 148, 150 (1979); Tefft v. Tefft, 192 Mont. 456,
462, 628 P.2d 1094, 1097 (1981); Torma v. Torma, 198 Mont. 161, 164, 645 P.2d 395,
397 (1982).
4 ¶10 Mother’s petitions, however, were not filed in the parents’ marital dissolution
proceeding but under the statutes governing a conservator and guardian. The District
Court declared the twins “incapacitated persons” under § 72-5-101, MCA, meaning each
suffers from “physical illness or disability . . . to the extent [he] lacks sufficient
understanding or capacity to make or communicate responsible decisions[.]” Mother was
appointed, and continues to be, the guardian and conservator of both twins. Her rights
and duties in this position are outlined in the guardianship and conservatorship statutes,
which include the right to “institute proceedings to compel any person under a duty to
support the ward or to pay sums for the welfare of the ward to perform that person’s
duty.” Section 72-5-321(2)(d)(i), MCA. We held in a prior case that § 40-4-208(5),
MCA, and Torma did not apply to a mother’s request for support where the mother had
brought her action under the Uniform Parentage Act, rather than in the context of a
marriage dissolution. In re W.L., 259 Mont. 187, 192, 855 P.2d 521, 524 (1993).
Likewise, Mother’s petitions here were not filed in the dissolution proceeding.
¶11 Under Montana law, the relationship between parent and child “extends equally to
every child and to every parent, regardless of the marital status of the parents.” Section
40-6-103, MCA. Irrespective of the parents’ prior marriage and its subsequent
dissolution, the instant petitions are filed directly on behalf of Father’s two adult children,
not on behalf of their mother. Since the laws governing guardians and conservators grant
express authority for the guardian to bring an action for support, the operative question is
5 whether there is “a duty to support” the twins that may be enforced against Father in the
conservatorship proceedings.
¶12 Mother claims Father’s duty to provide support for the twins arises under § 40-6-
214, MCA. The statute was enacted in 1895 as part of the Civil Code of Montana, but
never has been applied by this Court to circumstances similar to those presented here.
We find instructive the rulings of other jurisdictions that have held similar statutes
impose a duty to support one’s disabled adult child independent of a child support order
awarded in a marital dissolution action. Courts in both Oregon and California have
analyzed in detail the origins of statutes creating a parental duty of support and their
applicability to an adult disabled child. In re Haxton, 705 P.2d 721, 730-31 (Or. 1985)
(citing cases recognizing the duty to support a disabled adult child and permitting
enforcement of that duty through a direct action by the child); Chun v. Chun, 190 Cal.
App. 3d 589, 596 (1987) (father owed duty of support to disabled adult child who was a
“person in need who is unable to maintain herself by work” within the meaning of the
statute). In Haxton, the court rejected the father’s argument that modern domestic
relations statutes prescribed exclusive authority for an award of support, concluding,
“[n]either the process of collecting the law and procedure of domestic relations into one
code section [n]or enactment of newer provisions to address the obligation of support in
specific instances was intended to preclude other remedies that already existed.” 705
P.2d at 729.
6 ¶13 Other courts have articulated alternative mechanisms by which maintenance for an
adult disabled child can be enforced outside the purview of a child support order granted
during marital dissolution. See, e.g., Parrish v. Parrish, 361 N.W.2d 366, 372 (Mich.
App. 1984) (support needed for adult disabled child properly considered by trial court in
fashioning alimony award notwithstanding statute precluding an award of support for
adult child); Feinberg v. Diamant, 389 N.E.2d 998, 1000-02 (Mass. 1979) (noting the
common law rule there is no obligation on the part of parents to support adult children,
but recognizing a parent may be required to support an adult disabled child not through
the divorce statutes but under the court’s general equity powers in guardianship
proceedings); Prosser v. Prosser, 157 P.2d 544, 545-46 (Kan. 1945), superseded by
statute as noted in Arche v. United States, 798 P.2d 477, 486 (Kan. 1990) (upholding
action to enforce common law duty of support “where a child on becoming of age is in
such a feeble and dependent condition physically or mentally as to be unable to support
himself”).
¶14 Based on the plain language of § 40-6-214, MCA, and the construction given
similar statutes in Haxton and Chun, we conclude the statute has clear application to the
facts of this case. No party disputes the twins are completely dependent on others and
have insufficient income to be self-maintaining, aside from what benefits they may
receive from government agencies and their parents. The District Court’s determination
of the twins’ incapacity for purposes of the guardianship statutes satisfies the statute’s
predicate that they be unable to provide self-maintenance by work. Applying the “usual
7 and ordinary meaning” of the words used, In re M.N., 2011 MT 245, ¶ 27, 362 Mont.
186, 261 P.3d 1047, we hold the statute imposes a duty on Father to support the twins “to
the extent of [his] ability.” Father’s duty runs directly to the twins and is enforceable
under the guardianship statutes. Section 72-5-321(2)(d)(i), MCA. See Paxton v. Paxton,
89 P. 1083, 1085 (Cal. 1907).
¶15 We therefore affirm the District Court’s decision and remand for further
proceedings to fashion an order of support consistent with the statute’s directive. Section
40-6-214, MCA, states clearly that parents must support a child “to the extent of their
ability.” A parent is only obligated to provide such support as he or she can afford.
Chun, 190 Cal. App. 3d at 597. Additionally, the court must formulate a support order
considering the twins’ other sources of income and means of support. While § 40-6-214,
MCA, does not specify how a parent’s ability is to be determined, Montana’s Uniform
Interstate Family Support Act applies in other situations where the support of a child is at
issue and provides guidance in this situation. Title 40, chapter 5, part 1, MCA. That Act
defines “child” to include an individual who is “owed a duty of support by the
individual’s parent,” whether the child is over or under the age of majority. Section 40-5-
103(1), MCA. The Department of Public Health and Human Services has adopted child
support guidelines pursuant to § 40-5-209, MCA, for calculating minimum child support
payments considering the circumstances of the parents and the family. Admin. R. M.
Title 37, chapter 62. The court should consult those guidelines in determining an
appropriate support award in this case.
8 CONCLUSION
¶16 The order of the District Court is affirmed and remanded with instructions
consistent with this opinion.
/S/ BETH BAKER
We concur:
/S/ MIKE McGRATH /S/ BRIAN MORRIS /S/ MICHAEL E WHEAT /S/ PATRICIA COTTER /S/ JIM RICE /S/ JAMES C. NELSON