Fitzgerald v. Fitzgerald, 80-46
| Decision Date | 06 August 1980 |
| Docket Number | No. 80-46,80-46 |
| Citation | 190 Mont. 66,618 P.2d 867,37 St.Rep. 1350 |
| Parties | Cynthia A. FITZGERALD, Plaintiff and Appellant, v. Timothy P. FITZGERALD, III, Defendant and Respondent. |
| Court | Montana Supreme Court |
Leaphart Law Firm, Helena, for plaintiff and appellant.
Page Wellcome, Bozeman, for defendant and respondent.
This is an appeal by plaintiff from an order of the District Court denying her petition to find respondent guilty of contempt and for payment of $4,400 in support payments that are in arrears.
This matter began in the District Court of Lewis and Clark County, First Judicial District, when the Honorable Victor H. Fall entered a decree of divorce awarding custody of the minor child to the mother on April 30, 1971. The court made the following provision as to child support:
In addition, the court found in Finding of Fact No. 7:
"Defendant earns sufficient income to pay fifty dollars ($50) per month for the support of the minor child of the parties hereto."
Conclusion of Law No. 3 stated:
"The defendant shall have no right to visit said child, unless and until, he pays to the plaintiff the sum of fifty dollars ($50) per month through the clerk of this court for the support and maintenance of the minor child of the parties hereto."
Respondent did not make any support payments between April 1971 and September 1979. The records of the clerk of the court indicate that he is in arrears in the amount of $4,400.
Respondent did not see the minor child between April 1971 and the summer of 1979, except for a short period when the child was at respondent's parents' home in 1978. After that meeting with his son, a visitation was established in 1979 at the request of appellant, respondent's ex-wife.
When visitation was established in 1979, respondent commenced paying child support. He contends that he will continue to pay child support and wants to see his minor son on a permanent basis. Following the visitation in 1979 appellant filed an affidavit in support of arrearage which is the basis of the current action. Appellant had not previously made any attempt to modify the original judgment or maintain any action to collect the arrearage under the Uniform Reciprocal Enforcement of Support Act for some eight years.
Respondent contends that the original judgment did not require the payment of child support without his being able to see and visit his minor child. Since such visitation was not established during the eight-year period, nor requested by appellant, he argues that it would be unconscionable and contrary to the judgment to require him to pay the arrearage set forth in the affidavit. The District Court substantially agreed with respondent in denying appellant relief.
Two issues are presented for review:
1. Does the divorce decree require that respondent pay child support?
2. Does the doctrine of laches apply as a defense to the suit to enforce a child support obligation in this case?
In denying his obligation to pay the arrearage, respondent contends he had no obligation to support the child under the decree unless and until he exercised his right of visitation. This argument must be considered with the finding of Judge Fall that respondent was capable at the time of the divorce of paying $50 per month in support. The provision on visitation has no bearing whatsoever upon respondent's legal and moral obligations to support his child. The decree did not and could not condition the support obligation on the exercise of the right of visitation. See Paterson v. Paterson (1976), 73 Wis.2d 150, 242 N.W.2d 907; Refer v. Refer (1936), 102 Mont. 121, 56 P.2d 750; State ex rel. Lay v. District Court (1948), 122 Mont. 61, 198 P.2d 761.
In earlier cases this Court has spoken out on the moral obligation of parents, and particularly fathers, to support their children. Refer v. Refer, supra; State ex rel. Lay v. District Court, supra. In Lay, this Court, citing earlier opinions, noted:
122 Mont. at 71-72, 198 P.2d at 767.
This view was recently cited and supported in Woolverton v. Woolverton (1976), 169 Mont. 490, 549 P.2d 458.
Respondent fails to take into account the well-settled principle that the law imposes upon civilized men the duty to provide food and shelter arrangements for his own. It is one of the conditions upon which Adam was bounced out of the garden, and it has been the law ever since. Courts have an inherent jurisdiction to protect infants. They are wards of the government, and the courts are to protect their bread and butter. When doing so, they do not take their clue from Elijah and the ravens, but draw it from the earnings of the father. We find the court incorrectly applied the rule in this case, and its judgment must be reversed.
Concerning the second issue, the doctrine of laches, it appears that the order of the District Court of January 24, 1980, finds, in effect, that appellant is foreclosed from recovering the back child support by the doctrine of laches or estoppel.
Several matters are of import here. First of all, the District Court's order assumes matters not in evidence, i. e., that appellant made no request for back support until respondent sought visitation and commenced paying support. The record is to the contrary. Respondent commenced his support payments in September 1979, only after receiving a demand letter from appellant's counsel. Second, regardless of when or why respondent commenced making his child support payments, he is not relieved of his past child support obligation by the doctrine of laches or estoppel.
While this Court has not considered this question previously, several of our sister states have. We adopt their well-reasoned opinions for our holding on this issue. The Supreme...
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Marriage of Thurmond, Matter of
...584, 820 P.2d 858 (1991) ]. As we have often held, the support of children is a matter of social concern. Fitzgerald v. Fitzgerald (1980), 190 Mont. 66, 70, 618 P.2d 867, 869. 'It is an obligation that the father owes the state as well as his children.' Fitzgerald, 618 P.2d at 869." Mooney,......
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Marriage of Hooper, In re
...Court has ruled that the doctrine of laches cannot serve as a defense to collection of child support arrearages. Fitzgerald v. Fitzgerald (1980), 190 Mont. 66, 618 P.2d 867. The rationale in Fitzgerald was that the parent owed a duty to the child, as well as to the state, to support the chi......
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Mooney v. Brennan
...Willis, 820 P.2d at 859. As we have often held, the support of children is a matter of social concern. Fitzgerald v. Fitzgerald (1980), 190 Mont. 66, 70, 618 P.2d 867, 869. "It is an obligation that the father owes the state as well as his children." Fitzgerald, 618 P.2d at Section 40-4-208......
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In re Marriage of Hopper
...level of a social obligation that a parent owes not only to their children but to the state as well. See Fitzgerald v. Fitzgerald (1980), 190 Mont. 66, 69-70, 618 P.2d 867, 868-69. In short, the obligation to support one's children is of a higher order than ordinary civil debt. For this rea......