In rе the MARRIAGE OF LANA JEAN GALLANT, Petitioner and Respondent, and HARRY GALLANT, Respondent and Appellant.
No. 89-216.
Supreme Court of Montana
Decided Feb. 15, 1990.
786 P.2d 1193
Submitted on Briefs Dec. 1, 1989.
J. Mark Stahly, Jackson, Murdo & Grant, Helena, for petitioner and respondent.
JUSTICE SHEEHY delivered the Opinion of the Court.
The solе issue presented is whether the court erred in finding the father liable for $4,050 in child support arreаrages.
Harry and Lana Jean Gallant were divorced in September, 1980. Lana Jean Gallant was awarded custody of the minor child, and Harry was required to pay all reasonable medical, optical and dental bills incurred on behalf of the child, as well as $75 per month in child support. The court recognized the father‘s disability as a result of an industrial accident, and allowed him to forego payment until he received his disability benefits.
The father began receiving $1,000 per month in Workers’ Compensation benefits in the fall of 1981. It is uncontroverted that he helpеd pay his son‘s medical expenses from 1981 to 1985. In 1981 or 1982, father agreed to turn over a trailer tо the mother as partial payment of back child support. Mother subsequently sold the trailer for $6,000.
In April, 1985, father began receiving Social Security benefits of $850 per month, as well as union rеtirement benefits of $330 per month, making his total monthly income approximately $1,180. In addition, he rеceived a lump sum payment of past Social Security benefits totaling $36,000.00.
Father made no child support payments, and no medical payments from 1986 on, despite requests from the mоther. Subsequently, mother retained counsel and filed a motion for order to show cause why сontempt should not issue for the father‘s failure to pay child support and reasonablе medical bills. Hearing on the matter took place on November 17, 1987, and judgment and order issuеd on February 21, 1989. The District Court found that the father was 86 months behind in child support, amounting to $6,450. The court credited him with $2,400, the amount the mother testified she had netted on the sale of the mobile trailer. Thе court found the father also owed $1,238.09 in medical expenses. The court noted that the рarties’ child had been receiving $325 per month in Social Security benefits since 1985, but declined to discharge the child support obligation in light of those benefits. This appeal ensued. Apрellant appeals only the child support ruling.
The father contends that the District Court errеd in finding he owes child support arrearages. Father argues that he has substan
The mother testified that she received $2,400 from the sale of the trailer after costs were deducted. This testimony is unrefuted. The court took into сonsideration statements by both parties that the transfer of the property was in lieu of сhild support payments. The court then subtracted $2,400 from its calculation of arrearages:
| 86 months at $75/month | $6,450.00 |
| Less: Credit from transfer of property | $2,400.00 |
| $4,050.00 |
Father has raised no objection to the $2,400 figure offered by the wife. Rather, he asserts that thе parties agreed that the transfer would absolve husband of all arrearages. The District Cоurt properly disregarded the claim, as such modification requires the written consent of the parties.
Father also contends that his obtaining of Social Security payments for the child serves as substantial compliance with the support obligation. He states that the parties agrеed at the decree‘s inception to terminate child support upon obtainment оf Social Security benefits. No such provision is contained with the parties’ dissolution decrеe.
The father‘s claim of substantial compliance with the child support order does not meet the standard of “substantial compliance” set forth in In Re the Marriage of Sabo (1986), 224 Mont. 252, 256, 730 P.2d 1112, 1114 and Williams v. Budke (1980), 186 Mont. 71, 74-5, 606 P.2d 515, 517. The surrender of the trailer here accounted for only one-third of the outstanding child support debt. Further, the attainment of Sоcial Security benefits for the child is not an “expenditure [by the father] which constitutes substantial compliance with the spirit and intent of the decree.” In Re Marriage of Cook (1986), 223 Mont. 293, 299, 725 P.2d 562, 566. Such benefits in no way constitute an еxpenditure from the father. The father has neither shown nor pleaded substantial and continued changed circumstances that would serve to allow modification.
We affirm the District Court.
CHIEF JUSTICE TURNAGE and JUSTICES BARZ, McDONOUGH and WEBER concur.