author: MR. JUSTICE WEBER MR. JUSTICE MORRISON, MR. JUSTICE SHEEHY,

text:
    STATE OF MONTANA, ex rel., BOB BARTMESS, Pat Bartmess, Mary K. Bartsch, Julie Cloninger, Nita Creach, Gary A. Hull, Ed Kibler, Diana Kibler, et al., Relators and Appellants, v. BOARD OF TRUSTEES OF SCHOOL DISTRICT NO. 1 and High School District No. 1, Lewis and Clark County, et al., Respondents and Respondents.
    No. 85-540.
    Submitted Aug. 25, 1986.
    Decided Sept. 18, 1986.
    726 P.2d 801.

      MR. JUSTICE MORRISON concurred specially and filed opinion.
    MR. JUSTICE SHEEHY dissented and filed opinion in which MR. JUSTICE HUNT concurred.
    Robert T. Cummins argued and Randy K. Dix argued, Helena, for relators and appellants.
    Smith Law Firm, Chadwick H. Smith argued for School Dist. No. 1 & Bd of Trustees, Helena, for respondents.
    Goetz, Madden & Dunn; James H. Goetz, Bozeman, for amicus curiae Helena School Dist. No. 1, et al.
    Leaphart Law Firm, Helena, for amicus curiae Bd. of Public Educ.
    Charles Erdmann, Helena, for amicus curiae Montana School Bd. Ass’n.
    Gough, Shanahan, Johnson & Waterman, Ronald Waterman argued, Helena, for amicus curiae Montana High School Ass’n.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal of a summary judgment of the District Court for Lewis and Clark County which upheld the requirement that Helena high school students participating in extracurricular activities maintain a 2.0 grade average. We affirm.

Relators appeal and raise the following issue: Did the District Court err as a matter of law in holding that under the United States and Montana Constitutions participation in existing extracurricular activities is not a fundamental right?

Relators are citizens and taxpayers of Lewis and Clark County and parents of students enrolled in the two Helena high schools. They object to the rule adopted by respondents requiring a student to maintain a 2.0, or “C”, grade average for the preceding nine weeks in order to participate in extracurricular activities in the following nine week grading period. Extracurricular activities are those which do not earn credit toward graduation, including athletics, band, choir, speech, drama, cheerleading, drill team, student council, and holding class office. The 2.0 rule does not apply to special education students or students with learning disabilities.

The Helena high schools are members of the Montana High School Association (MHSA). The MHSA requires a 1.0, or “D”, grade average for participation in extracurricular activities. Its regulations permit member schools to adopt more stringent policies. The National Collegiate Athletic Association (NCAA) requires a minimum grade point average of 2.0 to participate at the college level in practice, regular season competition and athletically related financial aid during the first academic year.

Respondents adopted the 2.0 rule as an incentive for students who desire to participate in extracurricular activities. The 2.0 rule is a higher standard than that needed for graduation from Helena high schools, which is a 1.0 grade average in required courses. Respondents admit the 2.0 policy is not based on any scientific or statistical studies showing academic improvement by students following the adoption of such a policy.

Relators brought an action in District Court requesting injunctive relief and a declaratory judgment that the 2.0 rule was unconstitutional. The complaint alleged violation of the equal protection and equal educational opportunity clauses of the Montana Constitution. Following briefing and summary judgment motions by both parties, the District Court ruled in favor of respondents. The District Court found the 2.0 rule to be “a reasonable, fair, equitable and non-discriminatory policy, promulgated for the purpose of implementing the constitutional and statutory mandated educational goals of the school district. In its application, the requirement does not violate any constitutionally protected rights of these Relators, State or Federal ...”

Amicus briefs were filed by several parties, some of whom addressed wider issues than the one now before us. We are not ruling upon the issue of whether or not the right to education itself is a fundamental right. We are not ruling upon whether the failure to offer any extracurricular activities may result in a constitutional deprivation, nor whether extracurricular activities are in any way an indispensable component of the basic system of free quality public education. We are not in any way considering or ruling upon the question of funding education in Montana, including the funding of extracurricular activities, and are not considering any of the contentions being made that equal educational opportunity may require some specific types of funding. None of these issues is before us.

The issue appealed concerns the standard of review under which the 2.0 rule will be considered. Equal protection analysis traditionally involves one of two standards. A state action which burdens a fundamental right is subject to strict scrutiny and must be based upon a compelling state interest. An action which infringes upon a right which is not fundamental must only be rationally related to a legitimate government objective. A third middle-tier level of constitutional analysis has been recently recognized in Montana. See Butte Community Union v. Lewis (Mont. 1986), [219 Mont. 426,] 712 P.2d 1309, 43 St.Rep. 65.

The relators contend that the right to participate in extracurricular activities is fundamental and that the strict scrutiny standard therefore applies. The United States Supreme Court has held that education is not a fundamental right guaranteed by the federal Constitution. San Antonio School District v. Rodriguez (1973), 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16. Based on that holding, we conclude that participation in extracurricular activities is not a fundamental right under the U.S. Constitution. However, that does not preclude a finding that the right is fundamental under Montana's Constitution.

The relators cite Moran v. School District #7, Yellowstone County (D.Mont. 1972), 350 F.Supp. 1180. In that case, Federal District Judge Murray said this Court had recognized extracurricular activities as an “integral part of the total educational process.” The court there overturned a school rule which denied a married high school student the right to participate in extracurricular activities. Since that case involved the right to marriage, there was a separate ground for heightened constitutional scrutiny. While we agree that extracurricular activities are part of the educational process, the case is not authority because of the marriage aspect.

The Moran decision was based on language in a case which relators also cited, McNair v. School Dist. No. 1 (1930), 87 Mont. 423, 428, 288 P. 188, 190:

“Under the heading ‘Education,’ our Constitution declares that ‘it shall be the duty of the legislative assembly of Montana to establish and maintain a general, uniform and thorough system of public, free, common schools.’ . . . [I]t is clear that the solemn mandate of the Constitution is not discharged by the mere training of the mind; mentality without physical well-being does not make for good citizenship — the good citizen, the man or woman who is of the greatest value to the state, is the one whose every faculty is developed and alert.”

That case arose out of a taxpayer’s objection to the construction of a gymnasium and athletic field. This Court held the school board had been granted the authority to provide such facilities. The ‘solemn mandate of the Constitution’ discussed in McNair has been reworded in our 1972 Constitution, Article X, Section 1(3): “The legislature shall provide a basic system of free quality public elementary and secondary schools.” The emphasis in McNair was that education should attempt to improve mental, physical, and moral powers.

This Court recently recognized that not all constitutionally important rights are fundamental rights. The holding in Butte Community Union was that a right to welfare, which is lodged in our State Constitution, “is an interest whose abridgment requires something more than a rational relationship to a governmental objective.” However, we concluded that the right to welfare was not a fundamental right, and stated:

“In order to be fundamental, a right must be found within Montana’s Declaration of Rights or be a right ‘without which other constitutionally guaranteed rights would have little meaning.’ In the Matter of C.H. (Mont. 1984), [210 Mont. 184,] 683 P.2d 931, 940, 41 St.Rep. 997, 1007.”

Butte Community Union, 712 P.2d at 1311. The right to welfare was not found within Montana’s Declaration of Rights nor did we conclude it was a right without which other constitutionally guaranteed rights would have little meaning.

Participation in extracurricular educational activities is not found within Montana’s Declaration of Rights. The second portion of the test, whether the right is one without which other constitutionally guaranteed rights would have little meaning, is more difficult and we conclude, is best addressed by an analysis of Montana’s constitutional provisions as to education.

The McNair case demonstrates that physical and moral development are important aspects of education. The state has an important interest in seeing that its young citizens receive a basic quality education under Article X, Section 1, Mont. Const. (1972): “It is the goal of the people to establish a system of education which will develop the full educational potential of each person.” The provisions of Article X demonstrate that there are constitutional rights and obligations which extend to all sides of the question of education. There is the right to equality of educational opportunity guaranteed to each person. There is the goal to establish a system of education which will develop the full educational potential of each person. There is a requirement that the State’s educational goals recognize and preserve the cultural heritage of American Indians. The legislature is obligated to provide a basic system of free quality education. The state board of education is responsible for long-range planning, coordination and evaluation of the systems with regard to such rights and obligations. The school trustees are vested with the authority to discharge these obligations and protect the rights.

Our review of the educational provisions of the Montana Constitution demonstrates the extreme importance attached to the various elements of education by the people of Montana in adopting the Constitution. This review suggests that the various aspects of education under our Montana Constitution could be classed as “fundamental” because of the critical importance of developing the full educational potential of each citizen. However, we are required to analyze the educational aspect of extracurricular activities from an equal protection standpoint. Gerald Gunther, in his law review article entitled The Supreme Court 1971 Term Forward: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L.Rev. 1 (1972), points out that where a statute impinges on a right which is classed as fundamental, strict scrutiny of that statute is required and the result is invariably fatal to the statute. Justice Marshall commented on the fatal nature of strict scrutiny analysis in his dissenting opinion in Massachusetts Bd. of Retirement v. Murgia (1976), 427 U.S. 307, 318, 96 S.Ct. 2562, 2569, 49 L.Ed.2d 520, 528:

“Although the Court outwardly adheres to the two-tier model, it has apparently lost interest in recognizing further ‘fundamental’ rights and ‘suspect’ classes. . . In my view, this result is the natural consequence of the limitations of the Court’s traditional equal protection analysis. If a statute invades a “fundamental” right or discriminates against a “suspect” class, it is subject to strict scrutiny. If a statute is subject to strict scrutiny, the statute always, or nearly always ... is struck down. Quite obviously, the only critical decision is whether strict scrutiny should be invoked at all. It should be no surprise, then, that the Court is hesitant to expand the number of categories of rights and classes subject to strict scrutiny, when each expansion involves the invalidation of virtually every classification bearing upon a newly covered category.”

In a similar manner, we pointed out that the strict scrutiny test requires the State to show a compelling state interest and is seldom satisfied. Butte Community Union, 712 P.2d at 1312.

Our analysis of the educational provisions of our Montana Constitution demonstrates there are competing and in some cases contradictory viewpoints which must be considered in determining whether the educational aspects of extracurricular activities are a right under our Constitution. We conclude that the only standard of constitutional review which allows a careful balancing of these competing interests is middle-tier analysis. We therefore hold that the middle-tier constitutional analysis is to be applied in determining whether the 2.0 rule violates students’ right to participate in existing extracurricular activities. We further hold that this right is not a fundamental right under the Montana Constitution; but that such right is clearly subject to constitutional protection and that a middle-tier analysis is to be applied for constitutional equal protection purposes.

The standard of review used under Montana’s middle-tier constitutional analysis is a “balancing of the rights infringed and the governmental interest to be served by such infringement.” Butte Community Union, 712 P.2d at 1314. As in Butte Community Union, our first inquiry is whether the classification is reasonable. Specifically, is the classification of students eligible to participate in extracurricular activities on the basis of a 2.0 rule reasonable? Then we must examine whether the government interest in making this classification based upon academic grades is more important than the students’ interest in participating in existing extracurricular activities. In other words, the school district must demonstrate that its classification is substantially related to an important governmental objective.

The action of the trustees places attaining minimum grades in academic subjects above participating in non-academic or extracurricular activities for which no graduation credits are given. The 2.0 rule does not apply to special education students or students with learning disabilities. While it is not based on studies showing improved grades for students operating under such a rule, it cannot be denied that the rule is an incentive for those students who wish to participate in extracurricular activities. It also promotes adequate time to study for those students who have not maintained a 2.0 grade average. We conclude that the classification is a reasonable one.

The priority given to academic over non-academic work to the extent found here does not contradict this Court’s statement in McNair that physical and moral education are also important. We are not able to conclude, as the relators urge, that an opportunity to participate in extracurricular activities is more important than the achievement of average academic performance. We conclude that the government interests in developing the full educational potential of each person and providing a basic system of quality public education by the enactment of the 2.0 rule outweigh the students’ interest in participating in existing extracurricular activities.

We hold that the District Court did not err in holding that participation in existing extracurricular activities is not a fundamental right. We further hold that the 2.0 rule does not violate the Constitution of the State of Montana.

Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON and GULBRANDSON concur.

MR. JUSTICE MORRISON,

specially concurring:

I concur in the result but the majority Opinion is not entirely clear on a central issue.

First we must decide whether education is a fundamental right. The United States Supreme Court has held that education is not a fundamental right guaranteed by the federal Constitution. San Antonio School District v. Rodriquez (1972), 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16. In Rodriquez, it was argued that education is fundamental because it is essential to the effective exercise of First Amendment freedoms and the right to vote. The Court disagreed, stating “[W]e have never presumed to possess either the ability or the authority to guarantee to the citizenry the most effective speech or the most informed electoral choice.” 411 U.S. at 36, 93 S.Ct. at 1298, 36 L.Ed.2d at 45.

In the recent case of Plyler v. Doe (1981), 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786, the Supreme Court reaffirmed its holding in Rodriquez that education is not a fundamental right guaranteed by the federal Constitution. Despite its holding, the Court placed great emphasis on the importance of education:

“But neither is it merely some governmental ‘benefit’ indistinguishable from other forms of social welfare legislation. Both the importance of education in maintaining our basic institutions, and the lasting impact of its deprivation on the life of the child, mark the distinction. The ‘American people have always regarded education and [the] acquisition of knowledge as matters of supreme importance.’ Meyer v. Nebraska, 262 U.S. 390, 400, 43 S.Ct. 625, 67 L.Ed. 1042 (1923).”

Plyler, 457 U.S. at 221, 102 S.Ct. at 2397, 72 L.Ed.2d at 801.

This Court is not bound by the decisions of the United States Supreme Court where independent state grounds exist for developing expanded rights under our state Constitution. Butte Community Union v. Lewis (Mont. 1986), [219 Mont. 426,] 712 P.2d 1309, 43 St.Rep. 65; Pfost v. State (Mont. 1985), [219 Mont. 206,] 713 P.2d 495, 42 St.Rep. 1957.

In Butte Community Union, supra, we said, “In order to be fundamental, a right must be found within Montana’s Declaration of Rights or be a right without which other constitutionally guaranteed rights would have little meaning.” 712 P.2d at 1311, 43 St.Rep. at 68; citing In the Matter of C.H. (Mont. 1984), 683 P.2d 931, 940, 41 St.Rep. 997, 1007.

The right to education is not enumerated in Montana’s Declaration of Rights but is found in Article X, Section 1, Mont.Const. (1972). This section provides in part: “It is the goal of the people to establish a system of education which will develop the full educational potential of each person,” and further directs the legislature to “provide a basic system of free quality public elementary and secondary schools.”

The official committee comment to Article X, Section 1, opens with a statement stressing the importance of education in Montana:

“Education occupies a place of cardinal importance in the public realm. The educational system is charged with the task of shaping and cultivating the mind of each succeeding generation and with developing the capacities for cultural and technical advancement of society.

For many, denial of a basic education would result in either illiteracy or severely retarded growth. Such individuals would be restricted from exercising, in a meaningful way, fundamental rights guaranteed in the Declaration of Rights such as the right to vote, right of participation, and right to know. Education is essential to even the most elemental exercise of many rights guaranteed by the Montana Constitution.

Education cannot be characterized as merely a benefit as was welfare in Butte Community Union, supra. The right to an education is not restricted in any manner. One need not qualify. Education is for all. Pursuant to Article X, Section 1, the legislature must provide a basic system of public schools, and each person is guaranteed equality of educational opportunity. In view of this constitutional mandate and the fact that education is essential to the exercise of other constitutionally guaranteed rights, we should clearly hold that basic education is a fundamental right under the Montana Constitution.

Next, we should address relators’ contention that participation in extracurricular activities is a fundamental right which may be infringed only upon a showing of a compelling state interest. Relators cite Moran v. School District No. 7 (D.Mont. 1972), 350 F.Supp. 1180, in which the federal district court found that the right to attend school includes the right to participate in extracurricular activities. In Moran, the court found the school board’s rule prohibiting married students from participating in extracurricular activities did not meet even a rational basis test. The court cited language from this Court’s decision in McNair v. School District No. 1 (1930), 87 Mont. 423, 288 P. 188:

“[I]t is clear that the solemn mandate of the Constitution is not discharged by the mere training of the mind; mentality without physical well-being does not make for good citizenship — the good citizen, the man or woman who is of the greatest value to the state, is the one whose faculty is developed and alert.
“Education may be particularly directed to either mental, moral or physical powers or faculties, but in its broadest and best sense it embraces them all.”

87 Mont, at 428, 288 P. at 190.

Apparently we have not retreated from the position announced in McNair, although the majority analysis is somewhat murky. That case arose as a challenge by a taxpayer objecting to the construction of a gymnasium and athletic field. There this Court held the school board had been granted the authority to provide such facilities. The emphasis in McNair was that education should attempt to improve mental, physical, and moral powers. That rationale still holds force today, but I find the Helena high schools’ 2.0 rule is an attempt to guarantee a sound education.

Regardless of whether the extracurricular activity is academic or non-academic, the state has a compelling interest in seeing that its young citizens receive a basic quality education. While the 2.0 rule is not based on studies showing improved grades by students operating under such a rule, there can be no denying it is sound incentive for those students who desire to engage in extracurricular activities. Further, it assures adequate time to study for those students affected by the rule.

Montana’s strong commitment to providing a quality system of education is clear under our Constitution. The state’s compelling interest in educating its citizens is reflected in Article X, Section 1, Mont. Const. (1972): “It is the goal of the people to establish a system of education which will develop the full educational potential of each person.” Respondents’ 2.0 rule is a policy designed to achieve this constitutional directive.

The supervision and control of the public schools in each district is vested in a board of trustees pursuant to Article X, Section 8. The trustees’ action does not deny educational opportunity, whether academic or nonacademic, to any students. Rather it seeks to create priorities within the curriculum to the end that students will receive the best education possible.

Relators contend the 2.0 rule violates the guarantee of equal educational opportunity found in Article X, Section 1, Mont. Const. (1972). The committee comments to Article X, Section 1, reflect a concern that Montana’s educational financing system provide equal educational opportunity.

“The subject of ‘equal educational opportunity’ has become a particularly important doctrine in modern education. Recent federal, district and state court decisions have interpreted the Fourteenth Amendment to the federal Constitution as applying to educational financing. Under this doctrine, the state must show a compelling interest to maintain a classification system by wealth which interferes with the individual’s fundamental right to an education.”

To satisfy the burden of proving the denial of equal educational opportunity, relators would first have to show that affected students are incapable of maintaining a 2.0 grade average and are thereby banned in fact from activity participation. Learning disabled and special education students are exempted from the rule. Relators have not shown that they are unable to meet the requirement. With the exemption noted for special education youngsters, all students are given the same opportunity.

I would hold that respondents’ 2.0 rule is a constitutionally sound method of furthering the state’s compelling interest in educating its citizens.

MR. JUSTICE SHEEHY,

dissenting:

The issue in this case is the validity of the academic eligibility requirement for participation in extracurricular activities in High School District No. 1, Lewis and Clark County, Montana, as follows: “Academic Eligibility. To be eligible to participate in a Montana High School Association contest a student must have received a passing grade in at least twenty periods of prepared work per week or its equivalent during the last preceding semesters in which he/she was in attendance. If a student is assigned an ‘incomplete’ in a subject, he/she has not received a passing grade in this subject. The record at the end of the semester is final and scholastic deficiencies may not be ‘made up’ in any way.

“In addition, Helena School Dist. #1 High School activity participants (including Athletics, Band, Vocal, Speech, Drama, Cheerleaders, Drill Team, Student Council, Class and Organizational Officers), must have a 2.0 grade point average the previous semester. If not in conflict with Montana High School Association policy, a student will have two (2) weeks to make up an incomplete.

“Further, Helena School Dist. #1 High School activity participants must be present the entire day to compete or practice unless permission is granted through the Principal’s office.”

On July 22, 1985, the respondent Board of Trustees enacted the following amendment to the academic eligibility requirement:

“If the grades of a student who is participating in activities falls below a 2.0 grade point average for any nine week grading period the student will be ineligible to participate in activities during the next nine week grading period. The policy change will be retroactive to the 1984-85 spring quarter.”

[NOTE: School Board grammar, not mine.]

Under the agreed statement of facts before this Court, 1) extracurricular activities mean activities which do not earn credit toward graduation; 2) a 2.0 grade point average is a “C” average; 3) the rule sets a high standard which is required for graduation from Helena high schools — whereby in order to graduate, a student must obtain 21 credits by receiving a grade of “D” or better in 21 courses. Participation by Helena high school students in interscholastic activities in Montana, for Class AA schools (both Helena high schools are Class AA schools) is allowed under the rules of Montana High School Association for students who receive a passing grade “D” in at least 20 periods of prepared work per week. None of the other Class AA schools, 14 others, require more than a “D” passing grade for participating in interscholastic activities.

Colleges, on paper at least, have higher standards for intercollegiate competition. The National Collegiate Association rule requires a 2.0 grade point average for a student to be eligible for practice, participation in regular season competition, and financial aid.

The single issue in this case is the constitutional validity of the academic requirement rule for participation in extracurricular activities adopted by the Helena High School District.

Until today, this Court had followed the rule that a student’s right to participate in extracurricular activities was constitutionally protected. To be sure, that was not the majority rule among the several states, but in Montana, we held unswervingly to that rule, based on our special constitutional provisions and the interpretation of this Court in McNair v. School Dist. No. 1 (1930), 87 Mont. 423, 288 P. 188.

In McNair, a Cascade County taxpayer attacked the validity of a bond issue proposed by School District No. 1 of that county “for the purpose of constructing an outdoor gymnasium and athletic field in said district, furnishing and equipping the same.” McNair attacked the proposed bond issue on the grounds that the 1889 Constitution did hot contemplate athletic fields, and that the statute which permitted the erection of gymnasiums did not include athletic fields. The 1889 Constitution provided that the duty of the legislature was to establish and maintain “a general, uniform and thorough system of public, free, common schools.” In construing what a “thorough system” meant, this Court said:

“What, then, constitutes a ‘thorough’ system of education in our public schools? By its voluntary act, the state has assumed the function of education primarily resting upon the parents, and by laws on compulsory education has decreed that the custody of children be yielded to the state during the major portion of their waking hours for five days of the week, and, usually, nine months in the year. In doing so, the state is not actuated by motives of philanthropy or charity, but for the good of the state, and, for what it expends on education, it expects substantial returns in good citizenship. With this fact in mind, it is clear that the solemn mandate of the Constitution is not discharged by the mere training of the mind; mentality without physical well-being does not make for good citizenship — the good citizen, the man or woman who is of the greatest value to the state is the one whose every faculty is developed and alert.
“Education may be particularly directed to either mental, moral or physical powers or faculties, but in its broadest and best sense it embraces them all. (Emphasis added.)”

87 Mont, at 428, 288 P. at 190.

Following McNair, we had the case of Perkins v. Trask, (1933), 95 Mont. 1, 23 P.2d 982. This was an action against the members of the School Board for the drowning death of a pupil in a swimming pool maintained by the School District of Powell County. The trustees of the School District were immune from suit if they were performing a governmental function, and it was the contention of the plaintiff that because the trustees had no authority to construct a swimming pool, they were individually liable. In disposing of the argument that the trustees were not engaged in a governmental function, this Court said:

“Our Constitution imposes the duty upon the legislative assembly “to establish and maintain a general, uniform and thorough system of public, free, common schools.’ (Section 1, Article XI.) This the legislature has done by the enactment of our school laws. The courses of study are prescribed by Section 1054, Revised Codes of 1921, with power in the boards of trustees ‘to determine what branches, if any, in addition to those required by law, shall be taught in any school in the district.’ [citing authority]. Also by Chapter 147, Laws 1927, the trustees are given authority to issue bonds for the purpose of constructing or acquiring a gymnasium and for furnishing and equipping the same. (Section 1) Under the broad rules announced in McNair v. School District, 87 Mont. 423, 288 P. 188, 69 A.L.R. 866, the trustees have authority to construct and maintain a swimming pool for the use of the pupils.
“It is also contended that, if the board has the right to maintain a swimming pool, its right is optional and not mandatory, and hence
the rule of immunity does not apply. This fact does not alter the legal principle applicable, (citing authority).”

95 Mont, at 7-8, 23 P.2d at 984.

Thus did our Court hold that a swimming pool in a school was a performance of an educational duty by the school trustees.

In Flathead Lake Methodist Camp v. Webb (1965), 144 Mont. 565, 399 P.2d 90, the question was whether the Methodist Church was entitled to a Montana property tax exemption for the maintenance of a summer camp on Flathead Lake in Lake County. The tract involved and consisted of 22 acres on which the Methodist congregations had erected cottages, dormitories, dining rooms, bathing facilities, garages, boat dock, water supplies, etc. Webb maintained that the church was not entitled to a tax exemption for the property which was used for educational purposes. This Court said:

“Our review of the record leads us to the conclusion that the ‘exclusive’ use of the premises is for ‘educational purposes’ within the meaning of the statute. The term ‘educational purposes’ is not, by the weight of authority, defined in terms of the common scholastic institutions of grammar school, high school, and university or college. (Citing authority.) Organizations for the social, intellectual, physical, or religious welfare of children are exempt equally. The end of education may be to develop either the mental, physical, or moral qualities. (Citing authority.) Religious education is exempt as an ‘educational purpose’.
“Our court has stated: ‘Education may be particularly directed to either mental, moral, or physical powers or faculties, but in its broadest and best sense it embraces them all.’ McNair v. School Dist. No. 1 of Cascade County, 87 Mont. 423, [428,] 288 P.2d 188, 190, 69 A.L.R. 866. (Emphasis added.)”

144 Mont, at 569, 570, 399 P.2d at 93.

Then came Granger v. Cascade County School Dist. (1972), 159 Mont. 516, 499 P.2d 780. In that case Cascade County School District had imposed fees in the grade school and high school for such items as workbooks, chemistry notebooks, manual arts materials, musical instrument rentals, summer school, and others. The fees were attacked by the plaintiffs on the grounds that the constitutional requirement of a “thorough system” of public, free schools encompass all categories of activities in the school and no such fees can be imposed. There this Court reaffirmed its statement that education may be directed to mental, moral and physical powers, and provided this test:

“Is a given course or activity reasonably related to a recognized academic and educational goal of the particular school system? If it is, it constitutes part of the free, public school system commanded by Article XI, Section 1 of the Montana Constitution and additional fees or charges cannot be levied, directly or indirectly, against the student or his parents. If it is not, reasonable fees or charges may be imposed.”

159 Mont, at 516, 527, 499 P.2d at 706.

In addition, the federal district court in Montana construed our holding in McNair and its following cases as granting a constitutionally protected right to participate in extracurricular activities. In Moran v. School Dist. No. 7, Yellowstone County (D. Mont. 1972), 350 F.Supp. 1180, the federal court, recognizing the holding in McNair, stated:

“In relying on this case the present Montana Supreme Court has recognized the importance of extracurricular activities as an integral part of the total education process. Courts have begun to recognize that extracurricular activities such as football are ‘generally recognized as a fundamental ingredient in the education process.’ Kelly v. Metropolitan County Board of Education of Nashville, etc., 293 F.Supp. 485, 493 (D.C. 1968). See also Lee v. Macon County Board of Education, 283 F.Supp. 194 (D.C. 1968). Thus it is apparent that the right to attend school includes the right to participate in extracurricular activities. (Emphasis added.)”

350 F.Supp. at 1184.

In brief and in oral argument, the School Board concedes that extracurricular activities are “a fundamental ingredient of the educational process,” but, without further explanation contends that the “fundamental ingredient” is not constitutionally protected. Some may distinguish a fundamental ingredient from a fundamental right, but it takes a quantum jump.

Thus, it was the law in this state until today that participation in extracurricular activities was a fundamental ingredient of the educational process; that school boards which issue bonds or otherwise finance through taxpayers the erection of athletic fields and gymnasiums or other provisions for extracurricular activities do so as part of the educational process; and that fees cannot be charged by the School Board if a given course or activity is reasonably related to recognized academic or educational goal. That was the state of the law when the constitutional framers in 1972 in the new constitution adopted Article X, Section 1, which provides:

“(1) It is the goal of the people to establish a system of education which will develop the full educational potential of each person. Equality of educational opportunity is guaranteed to each person of the state.”

We have been shown no record from the 1972 Constitutional Convention that would indicate that the constitutional framers wanted to divert extracurricular activities in schools from the other educational goals. Indeed, the language used by the constitutional framers in 1972 seems to encompass physical development in the term “educational potential.” For this must be true, if nothing else is, that the end of our educational system must be to develop students physically, mentally and morally to meet the challenges of life.

Of the approximately 2,500 students attending both Helena high schools, more than 500 of them, with the approval of this Court, are ousted by the eligibility rule from any extracurricular activities. If these students found little to relish in classrooms heretofore, their tedium will never be relieved by the sweet mix of association with their peers in other school endeavors, now branded as “nonessential” — drama, debate, cheerleading, drill team, student government, class and/or organizational officers, and yes, interscholastic track, football, basketball and golf. It is now possible for a student to graduate from either of Helena’s high school without ever being eligible for any extracurricular activity!

We have never had before us a scheme of government so patently discriminatory. This Court has followed convoluted equal protection analysis ad absurdum to a silly result. Now a Helena High School girl with a 1.98 grade average and a good soprano voice is excluded from singing with the Helena Starlighters. A Gary Cooper or a Myrna Loy, both Helena products, may now be excluded from the Helena drama classes. A student can sign up for Spanish, but that student cannot belong to the Spanish Club, even with a passing grade in Spanish if his or her overall average is less than “C.” In any test of fair dealing, those results should instantly be held irrational, but this Court does not want to apply rationality standards. It wants to talk about strict scrutiny and middle term reviews to deny these students perhaps the only time in their lives to use their God-given skills to run in track, to twirl batons, to play in bands.

We should not resort to high-flown concepts of equal protection law, which are with us today and tomorrow are gone with the wind, to deny constitutional protection to these affected students. Even if we reverse this Court in its prior decisions by holding that no fundamental right is involved, or by holding that we do not have an inherently suspect class, equal protection still requires that the rule be rationally related to a legitimate state interest. Sullivan v. University Interscholastic League (Tex. 1981), 616 S.W.2d. 170.

The only stated purpose for the rule set out in the agreed statement of facts is that the rule is “to encourage higher academic achievement to students who wish to participate in extracurricular activities.” A rule which places physical, educational and moral development below mental education slaps at the three legs upon which the educational stool is built.

This rule is not rationally related to its object for two reasons: it is guilty of bad breadth, and it is not rationally related to its intended purpose.

When I say bad breadth, I mean that this rule is so overbroad that it must eventually be modified by the School District trustees, and indeed it has already been modified once. Its intended purpose, to encourage greater academic achievement, is not supported by any evidence in the agreed statement of facts or otherwise. It is built more on wish than fact. No rational relationship has been shown.

It is noteworthy that the exclusion of high school students from extracurricular activities is so drastic that it is one of the punishments allowed to trustees for students who show open defiance of authority, deface school buildings or threaten other persons. Section 20-5-201, MCA. Thus has the School Board placed students who earn a grade point average of less than 2.0 in the category of the rebellious and defiant. It is patently irrational.

MR. JUSTICE HUNT, concurs in the dissent of MR. JUSTICE SHEEHY.


source: Caselaw Access Project

author: MR. JUSTICE SHEEHY

license: Public Domain

text:
    In the MATTER OF B.T., B.T., M.T. & M.T., Youths in Need of Care.
    No. 85-230.
    Submitted on Briefs July 17, 1986.
    Decided Sept. 18, 1986.
    725 P.2d 230.

      Nancy M. Belcheff, Great Falls, for appellant.
    Mike Greely, Atty. Gen., Joe R. Roberts, Asst. Atty. Gen., Helena, Patrick L. Paul, Co. Atty., Great Falls, for respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

This is an appeal from the order of the District Court modifying the custody of appellant’s four minor children. We affirm the District Court.

Appellant and his ex-wife are the parents of four children, two boys and two girls ages 9 to 14 years. The appellant and his ex-wife were divorced in October, 1981, and appellant was awarded custody of the children. The mother of the children was not represented by counsel at the divorce and did not ask for custody at that time since she was uncertain of her plans and ability to support the children.

In August, 1982, the two daughters were removed from their father’s custody by court order following allegations of sexual abuse by him against the girls. The girls were temporarily placed in the custody of Social and Rehabilitation Services (SRS), and later placed with their mother. The two boys remained in their father’s custody until the District Court’s final order modifying the custody of all four children from their father to their mother in December, 1984.

From the record below, it appears that two separate actions were merged into one proceeding. Initially, Cascade County and SRS had petitioned for temporary investigative authority and temporary custody of the two girls, and the mother had instigated proceedings to modify the 1981 custody decree as to all four children. During the March 16, 1983 hearing, a motion was granted to appoint an attorney for all four children in conjunction with the custody modification. At the May 14,. 1984 hearing, from which the trial court’s final order was issued, the court was prepared to review its previous temporary custody orders, to receive psychological evaluations of the parties, and to review the mother’s petition for change of custody of the four children.

The District Court found that circumstances had arisen since the prior divorce decree which were unknown to the court at that time indicating that the children’s continued residence with their father seriously endangered their physical, mental, moral or emotional health. The court based its finding on two psychologists’ testimony that the boys had observed their father tickling their sisters between the legs, and that the boys were at a high risk to begin acting out sexually. The court also found it to be in the children’s best interests to reside together in one home. Appellant was ordered to pay the children’s mother $100 per month per child as child support and to turn over the children’s clothes and personal belongings. His visitation of the children was to be supervised by SRS.

The appellant contends his parental rights were improperly terminated under Sections 41-3-401 and 402, MCA. Those sections govern the procedure for abuse, neglect, and dependency proceedings. However, the District Court proceeded under the statute governing custody modification, Section 40-4-219, MCA, and never conducted an abuse and neglect dispositional hearing or terminated appellant’s parental rights. The court opened the May 14 hearing under the caption of the divorce cause. The court’s conclusion that the children were “youths in need of care” was mooted by its order for custody modification. The statutory procedure for terminating parental rights is specific and exclusive, and must be strictly followed. In the Matter of Aschenbrenner (1979), 182 Mont. 540, 553, 597 P.2d 1156, 1164; In re Marriage of Schultz (1979), 184 Mont. 245, 247, 602 P.2d 595, 596. The District Court did not follow the statutory scheme for abuse and neglect since it did not reach the issue of terminating appellant’s parental rights.

The District Court’s jurisdiction over matters of child custody is of a continuing nature. In re Custody of Dumont, (Mont. 1985), [216 Mont. 118,] 700 P.2d 167, 169, 42 St.Rep. 687, 689; Gianotti v. McCracken (1977), 174 Mont. 209, 213, 569 P.2d 929, 931; Foss v. Leifer (1976), 170 Mont. 97, 100, 550 P.2d 1309, 1311. To establish its jurisdiction in a custody proceeding, the court must find the elements of Section 40-4-219, MCA, present:

“Modification. (1) The court may in its discretion modify a prior custody decree if it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of entry of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interest of the child and if it further finds that:
“(c) the child’s present environment endangers seriously his physical, mental, moral, or emotional health and the harm likely to be caused by a change of environment is outweighed by its advantages to him; . . .”

In this instance, the District Court discovered the allegations of sexual abuse one year after the divorce decree was entered. The evidence of sexual abuse from statements made by the children, and the risk of the appellant’s sexually abusive behavior continuing or escalating were a sufficient change of circumstances to give the court jurisdiction in the matter.

The findings and conclusions of the court will not be disturbed if supported by substantial, credible evidence. In Re Marriage of Sarsfield (Mont. 1983), [206 Mont. 397,] 671 P.2d 595, 599, 40 St.Rep. 1736, 1739. Testimony of both the mental health nurse and the psychiatrist who talked to the children indicated that the two girls had been touched by their father in the vaginal area. One of the boys told the psychologist that a man had touched him between the legs, but the boy would not say who. Appellant admitted to tickling his daughters but did not see anything wrong with tickling them on any part of their bodies. A psychological evaluation of appellant by an expert in the field of sex offenders found him to be a pedophile and very rigid in his thinking — a person who projected blame for his problems onto others. The court found this evidence, plus the evidence that the boys had observed their father’s sexual abuse of their sisters, constituted serious endangerment which required a change of custody from father to mother.

Appellant agrees that the statutes grant the District Court the ability to make a determination of abuse and neglect as to all children in a family based upon the policy that abuse of one child may have a detrimental effect on the other children’s development. In the Matter of T.Y.K. (1979), 183 Mont. 91, 95-96, 598 P.2d 593, 596. Here, the District Court found substantial, credible evidence that appellant’s behavior was detrimental not only to his daughters, but also to his sons in that they also were at a high risk to begin acting out sexually. This potential for the boy’s actions, and the probability of continued sexual abuse of the girls by appellant was sufficient substantial, credible evidence to support the trial court’s modification of the custody degree. In Re Marriage of Sarsfield (Mont. 1983), [206 Mont. 397,] 671 P.2d 595, 602, 40 St.Rep. 1736, 1743.

Lastly, appellant contends his right to counsel was denied by the failure of the District Court to appoint replacement counsel immediately once appellant’s first attorney withdrew from the case. Appellant argues the District Court should have informed him of his right to appointed counsel and should have declared a recess until he had secured appointed counsel.

Appellant’s argument is without merit. The record indicates that the District Court questioned appellant on his wish to proceed pro se after his counsel withdrew at the March 16, 1983 hearing. The court informed him of the problem with proceeding on his own insofar as he could not cross-examine two little girls who might testify in chambers, since his presence would hinder the children’s testimony. The court informed him that if the children testified in chambers out of his presence, he would be provided with a transcript of the testimony. Appellant agreed to this arrangement.

At the end of the hearing, the court again advised appellant to seek counsel since he could lose his parental rights if SRS pressed its abuse and neglect claim. The court then furnished him with the name of an attorney to contact for legal aid. New counsel was appointed for him within one week.

Appellant also argues that he was not able to properly cross-examine two witnesses, Irene Johnson, a social worker, and his ex-wife. However, both witnesses were cross-examined on two other occasions by appellant’s attorneys. Ms. Johnson was cross-examined in December, 1982, and May, 1984; his ex-wife was cross-examined twice in May, 1984. At both times the cross-examination was conducted by appellant’s attorney. Finally, the two girls did not testify at the March 16, 1983 hearing. They did not testify until March 25, 1983, at which time appellant’s new counsel was present to cross-examine them. For the above reasons, we find that the District Court did not err in failing to appoint counsel for appellant at the March 16 hearing, or in not declaring a recess.

Based on the foregoing evidence, we find the record contains substantial credible evidence to support the findings and order of the trial court and, therefore, the order modifying the custody of the children is affirmed.

MR. JUSTICES HUNT, HARRISON, WEBER and MORRISON concur.


author: MR. JUSTICE HUNT MR. JUSTICE WEBER,

text:
    In re the MARRIAGE OF DIETA M. COOK, Petitioner and Appellant, and JAMES D. COOK, Respondent and Respondent.
    No. 85-333.
    Submitted on Briefs May 9, 1986.
    Decided Sept. 23, 1986.
    725 P.2d 562.

      MR. JUSTICE WEBER filed dissenting opinion in which MR. CHIEF JUSTICE TURNAGE and MR. JUSTICE GULBRANDSON joined.
    Tipp, Hoven, Skjelset & Frizzell, Richard R. Buley, Missoula, for petitioner and appellant.
    Mark S. Connell, J. Howard Toole, Missoula, for respondent and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Appellant, Dieta Cook, appeals the order of the Missoula County District Court modifying its earlier custody and support decree transferring custody to James and ending his support obligation.

We affirm.

Dieta raises the following issues on appeal:

1. Whether the District Court properly invoked jurisdiction in this matter?

2. Whether the District Court’s findings regarding serious endangerment are supported by substantial credible evidence?

3. Whether the District Court’s findings regarding child support are supported by the record?

The parties were divorced by decree of dissolution on January 10, 1980. Dieta was awarded custody of the parties’ two minor children, Tom and Martin (Mardy). James was granted visitation rights and ordered to pay $250.00 per month per child for support. The decree ordered that Dieta not change the children’s residence from Montana without first obtaining the permission of the court.

In May of 1980, Dieta removed the children to Utah without obtaining the court’s permission. Several additional court proceedings took place in the case over the next few years regarding visitation and financial requirements set forth in the decree. The children visited James during the summers of 1980, 1981, 1982 and 1983.

Beginning in the summer of 1981, the children requested they be allowed to remain with their father on a permanent basis. On July 11, 1983, James filed a motion for change of custody. An order to show cause was issued on July 13, 1983, setting hearing upon the motion for August 12, 1983. The hearing was vacated.

The children remained with James pending a new hearing date. Before a hearing could be held, Dieta appeared in Missoula on December 15, 1983, and attempted to surreptitiously remove the children. She failed, and on December 16, 1983, James obtained an order restraining Dieta from removing the children from Missoula. Before the order was served upon Dieta, she unsuccessfully attempted to remove Tom from school, and successfully abducted Mardy by telling him she would drive him to school. Later that day, Dieta telephoned a Missoula County Deputy Attorney and was told of the court’s order restraining her from removing the children from Missoula. Dieta took Mardy to Utah, and then to Austria for several weeks.

On January 30, 1984, the district judge issued an order granting James temporary custody of both children, and ordering Dieta to produce Mardy for a hearing before the court on February 27, 1984. A second such order was issued on February 15, 1984. At the hearing, the court reaffirmed its earlier order awarding temporary custody of the children to James, but allowed Mardy to remain in Utah until the court was able to more fully consider the merits of the case at a subsequent hearing. The court also appointed an attorney to represent the children, ordered Dieta to allow James to visit Mardy by telephone, and set further hearing for April 14, 1984. Due to the court’s full docket, the case was not heard until June 5, 1984, and January 2, 3, 4, 7 and 10, 1985.

On March 29, 1984, a hearing was held in Utah by the Sevier County District Court on a custody motion filed by Dieta. That court concluded that the Montana court had continuing jurisdiction over the controversy; that the Montana court was the more convenient forum to litigate the issue; and that the Utah court was the less convenient forum. The Utah court declined to accept jurisdiction of the case.

On January 23, 1985, following the six-day custody hearing in Missoula, Judge Henson issued a judgment in which he found that the Missoula court properly had jurisdiction to hear the case, and granted James’ motion for change in custody.

On March 5, 1985, the court held a hearing concerning the child support owed to Dieta by James. The court concluded that, based upon an oral agreement between the parties, Dieta was estopped from enforcing the support provisions as contained in the decree. She was limited to the amount of support orally agreed to by the parties from June of 1980, until July of 1983. From July of 1983, James had physical custody of one or both children and was paying all expenses associated with the support of the child or children in his custody. Therefore, James was relieved of his obligation to pay child support after July of 1983.

Dieta appeals the orders of the District Court concerning jurisdiction, custody, and support.

The first issue raised by Dieta is whether the District Court properly exercised jurisdiction in this case. Dieta argues that the Montana court should have declined jurisdiction because the Utah court was the children’s home state and the more convenient forum. We do not agree.

Section 40-4-211, MCA, lists four distinct grounds for the exercise of jurisdiction by a Montana court. In this case, two of the grounds apply. That section states:

“(1) A court of this state competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
“(b) it is in the best interest of the child that a court of this state assume jurisdiction because:
“(i) the child and his parents or the child and at least one contestant have a significant connection with this state; and
“(ii) there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or
“(d)(i) no other state has jurisdiction under prerequisites substantially in accordance with subsections (l)(a), (l)(b), or (l)(c) of this section or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine custody of the child; and
“(ii) it is in his best interest that the court assume jurisdiction.”

The Montana court properly exercised jurisdiction under Section 40-4-211(l)(b), MCA. James and the children had a “significant connection” with Montana, and there was “substantial evidence” available locally which was relevant to the custody issue. Both the parties and the children lived in Montana for many years. The Montana court dissolved the marriage, awarded custody to Dieta, and handled several post-decree motions. Further, James and the children resided in Missoula at the time the motion to modify custody was made. Both children had numerous friends, relatives and teachers in the Missoula area able to testify. Three local psychologists tested the parties and the children and testified at the hearing. In addition, a local attorney was appointed to represent the children. The District Court properly concluded that it was in the best interests of the children that the Montana court exercise jurisdiction over this custody dispute.

Jurisdiction was properly invoked under Section 40-4-211(l)(d), MCA, as well. On March 29, 1984, the Utah court declined to accept jurisdiction in this matter deferring to the Montana court which it expressly found to be the more convenient forum. Thus, the Montana court had jurisdiction under Section 40-4-211(1)(d), MCA.

Dieta’s argument that the District Court should have declined jurisdiction because the Utah court was the more convenient forum is not persuasive. According to Section 40-7-108, MCA:

“(1) A court which has jurisdiction under this chapter to make an initial or modification decree may decline to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.” (Emphasis added.)

The decision to decline jurisdiction on inconvenient forum grounds is purely discretionary with the District Court. The District Court did not abuse that discretion in accepting jurisdiction. Therefore, we hold that the District Court had jurisdiction to hear this case.

Dieta’s second issue is whether the District Court’s findings regarding serious endangerment are supported by substantial credible evidence. We hold that the District Court’s order is supported by substantial credible evidence. In a detailed and thorough opinion, the District Court concluded that a change occurred in the children’s circumstances making a change of custody necessary to serve the best interest of the children. Tom was 14 years old at the time of the hearing and desired the modification; the present environment of the children endangered seriously their mental health; and the harm likely to be caused by a change of environment was outweighed by its advantages to them.

The District Court’s conclusions are supported by six pages of findings. The children requested they be allowed to remain with Tom. Dieta removed Mardy to Utah despite her knowledge of a court order restraining her from doing so. The relationship among the children, their father, and stepmother is extremely close and loving. Dieta impaired, frustrated, and attempted to stifle the children’s relationship with their father, and interfered with the children’s communications with each other while they were separated. She monitored and tape-recorded telephone calls to and from Tom, Mardy and James, delayed or intercepted letters and photographs sent through the mail, and discouraged the children’s desire to spend time with James. She threatened to sell the children’s toys and move to another country and never see them again should custody be changed at their request.

In a custody modification appeal, this Court will not disturb a District Court’s findings where they are supported by substantial credible evidence unless there is a clear preponderance of evidence against those findings. Reinoehl v. Perry (Mont. 1984), [213 Mont. 479,] 691 P.2d 1384, 41 St.Rep. 2269. In re Marriage of Bolton (Mont. 1984), [212 Mont. 212,] 690 P.2d 401, 41 St.Rep. 1698. The District Court’s decision to modify custody is clearly supported by substantial credible evidence and we will not disturb that decision on appeal.

Dieta’s final issue is whether the District Court’s findings regarding child support are supported by the record. We hold that they are.

The parties were divorced on January 10, 1980. James was ordered to pay $250.00 per month per child in support. The decree declared that the amount was set “in recognition of the mutual desire of the parties to have the children pursue a parochial education.” In May of 1980, Dieta moved with the children to Utah in violation of the decree. James learned that the children were no longer attending parochial school. In June of 1980, the parties orally agreed to reduce support to $200.00 per month per child for the months of August through June, and $100.00 for July. The agreement was reduced to writing, but James did not sign it because he feared that would indicate his approval of Dieta’s move to Utah. The agreement also provided for a modified visitation schedule. From and after June of 1980, the parties acted in reliance upon their oral agreement.

In July of 1983, James filed his motion to modify custody. From that date on either one or both of the children were in his custody and James discontinued payment of child support. The modification of custody was granted on January 23, 1985. On February 14, 1985, James filed a motion to determine the nature and extent, if any, of his support obligation. On March 14, 1985, the District Court entered its order and judgment.

The court found that James and Dieta entered into a binding agreement modifying support and visitation which both parties adhered to. James relied upon the agreement to his detriment in various financial dealings. The court held that his motion for modification of custody “was essentially a motion to eliminate the requirement that Respondent pay child support to Petitioner,” and James no longer owed support after that date.

The court concluded that Dieta was estopped from enforcing the support provisions of the decree from and after June of 1980, the date the parties entered into their agreement. Further, the changes in the children’s residences represented changed circumstances so substantial and continuing as to make enforcement of James’ original and modified support obligation unconscionable. We agree.

The general rule is that when child support becomes due under a dissolution decree it becomes a judgment debt similar to any other judgment for money. Section 40-4-208, MCA; In re Marriage of Carlson (Mont. 1984), [214 Mont. 209,] 693 P.2d 496, 41 St.Rep. 2419; Williams v. Budke (1980), 186 Mont. 71, 606 P.2d 515. However, a number of courts have recognized that under a compulsion of circumstances the mother may not collect the amount that has accrued in a judgment for support, where the husband has made expenditures which constitute substantial compliance with the spirit and intent of the decree. Headley v. Headley (1964), 277 Ala. 464, 172 So.2d 29; Steckler v. Steckler (Mo. 1956), 293 S.W.2d 129; Chapman v. Chapman (1945), 177 Or. 239, 161 P.2d 917; Mason v. Mason (1934), 148 Or. 34, 34 P.2d 328. The 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. State of Washington ex rel. Blakeslee v. Horton (Mont. 1986), [222 Mont. 351,] 722 P.2d 1148, 43 St.Rep. 1321; Headley v. Headley, 172 So.2d at 33. It is clear that in applying the doctrine of equitable estoppel the courts are guided by the principle that while the judgment for support may be in another’s name, the real beneficiaries of the judgment are the children, not the person named in the judgment. M_ v. M_ (Mo. 1958), 313 S.W.2d 209, 213. With that in mind, we look to the facts of this case. First, Dieta expressly consented to the payment of the judgment in a manner different than that set out in the decree. Second, James made the payments as required by the agreement, thus he acted within the spirit and intent of the decree. Finally, we note that James has had the children since 1983 and that to require payment of support now would harm the children by taking money away from them rather than benefiting them. Thus, we agree with the District Court that Dieta is estopped from enforcing the support provisions of the decree from the date the parties entered their agreement. The provision of Section 40-4-208, MCA, providing that a decree may be modified by a court as to maintenance or support only as to installments accruing subsequent to the motion for modification, is subject to the doctrine of equitable estoppel under the facts of this case. Only in cases where equitable estoppel is found by the trial court upon clear and compelling evidence may this doctrine override the provisions of Section 40-4-208, MCA.

In addition, once James made his motion in July of 1983, Section 40-4-208, MCA, gave the court discretion to modify his support obligation, subsequent to that date. One or both of the children resided with him after that date and James paid all the expenses associated with the support of the child or children in his custody. The District Court did not abuse its discretion in determining James’ support obligation.

Therefore, we affirm the District Court in all respects.

MR. JUSTICES HARRISON, MORRISON and SHEEHY concur.

MR. JUSTICE WEBER,

dissenting:

The majority opinion carefully reviewed the evidence considered by the District Court in reaching its conclusion that Dieta Cook was estopped from enforcing the support provisions of the decree of dissolution. I agree that the evidence supporting estoppel is compelling and would agree with the conclusion of the court if the sufficiency of the estopped evidence were the only question before us. However, I find other aspects have not been sufficiently considered in the majority opinion.

The majority opinion effectively has disregarded the provision of Section 40-4-208, MCA, which in pertinent part states:

“(1) . . .a decree may be modified by a court as to maintenance or support only as to installments accruing subsequent to the motion for modification.”

The above section is a part of the Uniform Marriage and Divorce Act enacted by our legislature in 1975. Uniformity of the Act among the several states was a primary objective as stated at Section 40-4-102, MCA:

“This chapter shall be so applied and construed as to effectuate its general purpose to make uniform the law . . . among those states which enact it.”

The essence of Section 40-4-208, MCA, is that a court may modify a support decree only as to subsequently accruing installments. On its face the statute appears to prohibit the action which is being taken in the present case.

It might be argued that the decree in the present case does not actually constitute a modification. I believe that has been disposed of in cases interpreting the section.

Williams v. Budke (1980), 186 Mont. 71, 606 P.2d 515, was a marriage dissolution case in which the decree required the husband to pay $300 per month in child support. The husband became seriously ill, had open heart surgery and was rehospitalized. As of 1978 husband owed $14,872.55 in medical bills and had no real property, no savings account and could not get medical or life insurance. Wife worked for a flooring company and she and her three minor children lived with her mother. At the show cause hearing the husband moved for a modification of his child support obligation and the District Court found him unable financially to pay $300 per month. As to future installments, the award was reduced to a total of $150, with subsequent increases in later years. The District Court found the husband delinquent in accrued child support payments in the amount of $9,080 and gave the husband credit for $3,600 received by the wife upon a prior execution and $970 for payments made directly to the minor children. The District Court then established a deferred payment schedule for the husband’s delinquent support obligation providing that the husband was to pay $150 per month to be credited toward delinquent child support with the commencement delayed for several years. This Court reversed the action of the District Court in deferring the payment for delinquent child support. This Court acknowledged the effort of the District Court to consider the financial condition of the husband and stated:

“We appreciate the effort of the District Court to take cognizance of the financial condition of husband in establishing the deferred schedule. However, the result, as the court ordered it, is to modify the judgment ... as to the accrued child support payments. This action of the District Court is repugnant to a controlling statute [citing the above Section 40-4-208 (1)] . . .
“There can be no doubt that the District Court modified the judgment for accrued child support payments, and modified it retroactively . . .
“In Dahl v. Dahl (1978), [176 Mont. 307,] 577 P.2d 1230, 1232, 35 St.Rep. 536, we pointed to the same statute (formerly Section 48-330 (1), R.C.M. 1947) to the effect that a divorce decree cannot be modified to cancel past due and unpaid child support. (Emphasis supplied.)”

Williams, 606 P.2d at 517.

Notwithstanding the arguments which were made to the court regarding the extreme health problems on the part of the husband and his financial inability to pay, this Court concluded that the statute was controlling so that the judgment for accrued child support payments could not be modified retroactively. This Court also reaffirmed the Dahl rule which held that a divorce decree cannot be modified to cancel past due and unpaid child support. The effect of the majority opinion in the present case is a cancellation of past due and unpaid child support in direct contradiction to the holdings in Dahl and Williams.

In a similar manner, in State Department of Revenue v. Dawson (Mont. 1984), [207 Mont. 417,] 674 P.2d 1091, 41 St.Rep. 46, this Court considered the action of the District Court which had concluded that the defendant was in arrears in the amount of $6,689 and that the defendant was unable to make the support payments and therefore concluded that it was appropriate to restrain the State of Montana from levying upon the bank account of the defendant. While the lower court had not in fact modified the decree, it effectively neutralized it by prohibiting the levy of a writ of execution. This Court again affirmed and explained its position in Williams and stated:

“The principle that child support installments past due and unpaid are not subject to modifications is an old one in Montana law, having been articulated as early as Kelly v. Kelly (1945), 117 Mont. 239, 157 P.2d 780. However, it was our decision in Williams v. Budke (Mont. 1980), [186 Mont. 71,] 606 P.2d 515, 37 St.Rep. 228, that adopted the view that restrictions on the right to levy for accrued child support is an impermissible retroactive modification. (Emphasis supplied.)”

Dawson, 674 P.2d at 1093.

In response to the argument that the ruling was not in fact a modification, the court stated:

“However, the practical effect of the order was to defer appellant’s right to levy execution on accrued child support payments. This constituted a retroactive modification and was erroneous.”

Dawson, 674 P.2d at 1093.

In addition, this Court reaffirmed its previously stated position in Williams and again stated:

“Moreover, in Dahl v. Dahl ... we pointed to Section 40-4-208 (1), MCA, to the effect that a divorce decree cannot be modified to cancel past due and unpaid child support.” (Emphasis supplied.) Dawson, 674 P.2d at 1093.

In these two cases, we find the strong position of this Court that a divorce decree cannot be modified to cancel unpaid and past due child support and that to even place a restriction on the right to levy for such accrued support is impermissible modification. The present case does not address the clear position of these cases and a number of others which have reinforced the statutory provision that a modification may be made of a support order only as to future rather than past due installations.

In State of Washington ex rel., Blakeslee v. Horton (Mont. 1986), [222 Mont. 351,] 722 P.2d 1148, 43 St.Rep. 1321, we for the first time applied equitable principles to bar collection of past due and unpaid child support installments. That was a distinctive case in which the course of conduct on the part of both mother and father had extended over a period of fourteen years. Perhaps we can say that the unique circumstances in such a case justify the equitable position taken. I have a real problem in attempting to apply the same rationale to the present case. The legislative view of the power of the district court and this Court is contained in Section 40-4-208, MCA, where the legislature states that a court may modify a decree as to support only as to installments accruing subsequent to the motion. In the present case the majority has responded to an equitable argument which should be directed to the legislature. Certainly it may be reasonable to suggest to the legislature that courts should be given authority to modify support provisions on equitable theories such as involved in the present case. However, I believe we have gone beyond the function of this Court in making the legislative modification ourselves.

In further support of the contention that child support decrees cannot be modified as to installments accruing subsequent to the motion for modification are the Commissioners’ Notes to what has been adopted in Montana as Section 40-4-208, MCA:

“Subsection (a) makes each installment under an order for periodic support or maintenance final and non-modifiable when it falls due. The accrued installments cannot be modified retroactively, and future installments can be modified only as to those falling due after a motion for modification has been filed. The purpose of this making each installment final and non-modifiable when it becomes due is to give each past due installment the status of a final judgment entitled to full faith and credit in other states pursuant to the decisions of the Supreme Court in Lynde v. Lynde, 21 S.Ct. 555, 181 U.S. 183, 45 L.Ed. 810 (1901); Sistare v. Sistare, 30 S.Ct. 682, 218 U.S. 1, 54 L.Ed. 905, 28 LRANS 1068, 20 Ann.Cas. 261 (1910); Barber v. Barber, 65 S.Ct. 137, 323 U.S. 77, 89 L.Ed. 82, 157 A.L.R. 168 (1944); and Griffin v. Griffin, 66 S.Ct. 556, 327 U.S. 220, 90 L.Ed. 635 (1945).

Uniform Marriage and Divorce Act Commissioner’s Notes, Section 316.

The Commissioners’ Notes provide a simple statement of the law. Many state courts have followed this statement of the law and have steadfastly refused to consider retroactive child support modification. See Ferry v. Ferry (1978), 201 Neb. 595, 271 N.W.2d 450; Jahn v. Jahn (1979), 179 Ind.App. 368, 385 N.E.2d 488; Gomez v. Gomez (1978), 92 N.M. 310, 587 P.2d 963; Worthley v. Worthley (1955), 44 Cal.2d 465, 283 P.2d 19; Gamble v. Gamble (D.C. 1969), 258 A.2d 261; Robertson v. Cason (La.App.1967), 203 So.2d 743; Hatch v. Hatch (1976), 113 Ariz. 130, 547 P.2d 1044; McAdams v. Scullin (1977), 53 Ill.App.3d 374, 11 Ill.Dec. 428, 368 N.E.2d 1036; In re Hart’s Marriage (Colo.App. 1975), 533 P.2d 42. Oregon allowed a modification, but did so under a different statute. See Emanuel v. Emanuel (Or.1978), 5 F.L.R. 2156.

I would reverse the District Court and remand for a determination of the support accruing subsequent to the filing of the motion, for which an award can be made as prospective rather than past due.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICE GULBRANDSON join in the foregoing dissent of MR. JUSTICE WEBER.


author: MR. JUSTICE HARRISON

text:
    In re the MARRIAGE OF WILLIAM H. KEEL, Petitioner and Appellant and DONNA L. KEEL, Respondent and Respondent.
    No. 86-207.
    Submitted on Briefs Aug. 7, 1986.
    Decided Sept. 26, 1986.
    726 P.2d 812.
    Ronald S. Efta, Wibaux, for petitioner and appellant.
    Kathleen M. Fritsch, Glendive, for respondent and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from an order of the District Court for the Seventh Judicial District brand for Dawson County, Montana, awarding maintenance and child support. Petitioner appeals. We remand.

The issues on appeal are whether the District Court abused its discretion in awarding maintenance to the wife and ordering support payments higher than petitioner reasonably can be expected pay.

Petitioner, William Keel (husband), brought proceedings in the District Court seeking dissolution of his fourteen year marriage to respondent, Donna Keel (wife). His petition stated the wife was a fit and proper person to be awarded custody of the couple’s three minor children and the only issues to be decided by the District Court were division of the property, the parties’ debts, child support and visitation. Following a bench trial the District Court issued its findings, conclusions and decree. The husband appeals that part of the decree requiring him to pay the sum of $200 per month per child for their support, to pay all medical, optical, dental, drug bills incurred on behalf of the children not covered by insurance, and to pay the wife $300 per month maintenance for a period of four years or until she remarries or cohabits with an adult male.

“The scope of this Court’s review when considering the findings and conclusions of a trial court sitting without a jury is clear and well settled in Montana. This Court’s function ... is not to substitute its judgment in place of the trier of facts but rather it is ‘confined to determining whether there is substantial credible evidence to support’ the findings of fact and conclusions of law. (Citations omitted.)”

In Re the Marriage of Thompson (Mont. 1984), [208 Mont. 156,] 676 P.2d 223, 226, 41 St.Rep. 237, 240-241.

There is very little conflict in the testimony and evidence presented regarding the husband’s income and the parties’ debts. Clearly the parties had no assets of any value to divide in excess of the amount of liabilities owed. The evidence shows the following assets:

Mobile home $12,500

1983 Ford V2 ton pickup 10,000

Satellite TV receiver 1,500

Television 200

Retirement 7,400

Tools 2,500

Miscellaneous household 3,500

Tax refund 1,500

TOTAL $39,100

The debts and obligations owed by the parties jointly are as follows:

Ford Motor Credit (pickup) $6,257.00

Koch Furniture 1,442.76

1st Nat. Bank of Willmington (VISA card) 5,098.95

CITIBANK (Ready Credit Account) 5,713.97

Montgomery Ward 1,025.00

Chevron USA 130.71

Gate City Dairy 135.88

Dr. Thompson 100.00

Badlands Clinic 98.00

Robert Peterson (lot rent) 150.00

Eckroth Music 413.50

Mountain Bell 136.50

State Farm Ins. (pickup) 229.24

State Farm Ins. (mobile home) 215.00

1st Fidelity Bank (Ready Reserve) 800.00

Dawson County (taxes) 1,014.00

Mobile Home 7,900.21

Debt to wife’s mother 925.00

Debt to wife’s sister 500.00

TOTAL $32,285.72

The court divided the property and the marital debts as follows:

To the husband:

Mobile home, possession to be delivered when respondent moves to the state of South Dakota.

Satellite TV receiver and system.

Magnavox TV set

Tools and tool chest.

Tax refunds.

Husband’s retirement and profit sharing funds.

Husband’s personal effects.

To the wife:

1981 Ford pickup and topper.

All furniture and household goods and appliances, with the exception of the previously mentioned Magnavox TV.

Children’s personal effects.

Wife’s personal effects.

The marital debts were divided as follows:

To the husband:

All indebtedness with the exception of those listed below as being the obligation of the wife:

To the wife:

Ford Motor Credit - balance due on pickup.

Debt to wife’s mother.

Debt to wife’s sister.

Before awarding maintenance, the District Court must consider two factors set out in Section 40-4-203, MCA: Whether the spouse seeking maintenance lacks sufficient property to provide for her reasonable needs and whether the spouse seeking maintenance is able to support herself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.

In this case there is no marital real property to be divided and that which was divided was to a large extent agreed upon by the parties. Neither party received income producing property which is the measure of sufficiency necessary to provide for one’s reasonable needs. Thompson, supra, 676 P.2d at 226, 41 St.Rep. at 241; In Re the Marriage of Laster (1982), 197 Mont. 470, 477, 643 P.2d 597, 601. Consequently, neither party has sufficient property to provide for his or her needs. Additionally, much of the property is encumbered by debt, but that received by the husband has the larger liens against it and will consume larger amounts of his income.

The second factor to consider is whether the wife is able to support herself through appropriate employment. (The remainder of the statutory section is not relevant in this case.) Although the wife has no work experience, there is no evidence she cannot obtain suitable employment. In fact, she requested permission from the court to move with the children to South Dakota to seek employment. The court properly concluded maintenance should be awarded to the wife, but, as will be shown, there is not sufficient credible evidence as to the amount.

We will consider the amount of child support to be paid together with the amount of maintenance. The husband’s employment is related to oil drilling. At the time of the divorce he was receiving a gross monthly salary of $2,850, based on a sixty hour work week, which he cannot anticipate will continue. His net pay is between $1,500 and $1,600 per month. Subsection (2) of Section 40-4-203, MCA, sets forth the factors to be considered by the court when determining amount of maintenance and period of time it is to be paid.

“[It] shall be in such amounts and for such periods of time as the court deems just, . . . considering . . .
“(a) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, . . .
“(e) the age and physical and emotional condition of the spouse seeking maintenance; and
“(f) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.”

The husband’s financial obligations very nearly exceed his financial resources. During the three months the couple was separated before the dissolution he was able to reduce his living expenses by living with friends. During this time he also reduced the couple’s debts by approximately $5,000. He is responsible for all the balance of the couple’s debts except the balance due on the pickup and the debts to the wife’s mother and sister. The minimum payments due on the large outstanding obligations are almost $500 per month. Much of each payment is interest due, resulting in only a small reduction in principal. We do not find sufficient evidence in the record showing the husband has “the ability ... to meet his needs while meeting those of [the wife]” pursuant to Section 40-4-203(2)(f), MCA. “What is important as far as the maintenance award is concerned is the amount of income available to the spouse to make the maintenance payments at the time required to be made.” In Re the Marriage of Jorgenson (1979), 180 Mont. 294, 303, 590 P.2d 606, 611-612. Nor is there evidence the wife’s age, physical or emotional condition prevents her from seeking employment necessary to meet her needs independently.

Child support is awarded after considering the factors set forth in Section 40-4-204(1), MCA, and the factors set forth in In Re Marriage of Carlson, (Mont. 1984), [214 Mont. 209,] 693 P.2d 496, 41 St.Rep. 2419, including the needs of the children, the financial resources of the custodial parent and the financial resources and needs of the non-custodial parent. There is no evidence the District Court applied the Carlson formula in awarding child support. Numerous deductions from husband’s gross pay, including medical and dental insurance premiums for his benefit and that of the children reduce his take-home pay to between $1,500 and $1,600 per month. He must pay all medical, dental, optical and drug bills incurred on behalf of the children and not covered by insurance. He must make monthly payments of approximately $500 on the largest of the couple’s outstanding debts. Further, he is responsible for paying the major portion of the balance of the debts. He must pay $900 per month child support and maintenance. This does not leave him enough to meet his own personal needs.

We remand the case to the District Court to redetermine the amount of child support, the degree of responsibility for expenses not covered by insurance, and the amount and duration of maintenance, consistent with this opinion.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES MORRISON, HUNT and GULBRANDSON concur.