text:
    EVELYN FRANCES POPPLETON, Claimant and Respondent, v. ROLLINS, INC., Employer, and Home Indemnity Company, Defendant and Appellant.
    No. 86-230
    Submitted on Briefs Sept. 11, 1986.
    Decided April 2, 1987.
    735 P.2d 286.

      Marra, Wenz, Johnson & Hopkins; Thomas A. Marra, Great Falls, for defendant and appellant.
    Burgess, Joyce & Whelan; Thomas J. Joyce, Butte, for claimant and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Rollins, Inc., and Home Indemnity Co., defendants and appellants, appeal an order of the Workers’ Compensation Court allowing Evelyn Frances Poppleton, claimant and respondent, to pursue a claim for workers’ compensation benefits. We affirm in part and reverse in part.

One issue is presented for our review:

Did the Workers’ Compensation Court err when it held that a claimant may receive benefits under both the Occupational Disease Act and the Workers’ Compensation Act?

Respondent Poppleton was employed as an officer manager of Orkin Exterminator Co., a division of Rollins, Inc., from 1976 to November 4, 1980. On June 10, 1980, while at work, she was overcome by fumes that invaded the workplace. Although she missed a few days of work because of the incident, Poppleton continued to work for Orkin until November 4, 1980. On that date she quit for medical reasons.

Respondent filed a claim for benefits in June 1980 with the Division of Workers’ Compensation (the Division). The Division treated the claim as one for occupation disease benefits. In its October 23, 1981, notice of determination, it concluded that respondent was entitled to total disability benefits at the rate of $98.67 per week from November 4, 1980, the date of termination of her employment, to July 14,1981, the date of examination by Dr. Anderson, who advised her to seek employment in a chemical-free environment.

On November 12, 1981, respondent filed a request for rehearing. A hearing examiner appointed by the Division denied the request on the basis of untimeliness. This ruling was affirmed by the Administrator of the Division of Workers’ Compensation.

In April 1983, respondent requested the Division to allow her to file a claim for workers’ compensation benefits for the incident which occurred on June 10, 1980. Poppleton stated that at the time of the determination of her claim, she did not realize that the accident might constitute an injury and, as such, would fall under the Workers’ Compensation Act. The Division granted Poppleton’s request. In response to this action, appellants filed a motion for summary judgment, alleging that respondent’s claim should be barred by the doctrine of res judicata or collateral estoppel since she had already received benefits under the Occupational Disease Act.

A hearing examiner was appointed by the Division on July 27, 1983, to rule on appellants’ motion for summary judgment. The examiner granted appellants’ motion and ruled that respondent’s claim was barred by res judicata. Respondent then appealed to the Administrator of the Division. The Division adopted the hearing examiner’s proposed findings of fact and conclusions of law.

Respondent appealed the Division’s ruling to the Workers’ Compensation Court. The Workers’ Compensation Court reversed the ruling of the Division and denied appellants’ motion for summary judgment. The Workers’ Compensation Court found that res judicata does not apply to the case at bar and allowed respondent to seek coverage under the Workers’ Compensation Act. Appellants timely filed notice of appeal from this ruling.

One issue is presented for our review:

Did the Workers’ Compensation Court err when it held that a claimant may receive benefits under both the Occupational Disease Act and the Workers’ Compensation Act?

The standard for review in workers’ compensation cases differs with findings of fact and conclusions of law. When reviewing questions of fact, our examination is limited to whether the record contains substantial credible evidence supporting the court’s findings. Ridenour v. Equity Supply Co. (Mont. 1983), [204 Mont. 473,] 665 P.2d 783, 40 St.Rep. 1012. When reviewing questions of law, or how particular findings of fact apply to the law, our scope of review is much broader. The appropriate standard of review is simply whether the lower court’s interpretation of the law is correct. “We are not bound by the lower court’s conclusion and remain free to reach our own.” Wassberg v. Anaconda Copper Co. (Mont. 1985), [215 Mont. 309,] 697 P.2d 909, 912, 42 St. Rep. 388, 391. Sharp v. Hoerner Waldorf Co. (1978), 178 Mont. 419, 584 P.2d 1298.

The issue in this case is one of law. Appellants contend the Workers’ Compensation Court erred when it reversed the hearing examiner’s ruling that Poppleton’s workers’ compensation claim is barred by res judicata. Appellants claim that because Poppleton could have raised the issue before the Workers’ Compensation Division that she suffered a compensable injury, she cannot raise that issue now.

In Brault v. Smith (Mont. 1984), [209 Mont. 21,] 679 P.2d 236, 239, 41 St.Rep. 527, 530, citing Fox v. 7-L-Bar Ranch Co. (1982), 198 Mont. 201, 645 P.2d 929, this Court held the necessary criteria for applying the doctrine of res judicata are:

“(1) the parties or the privies must be the same; (2) the subject matter of the action must be the same; (3) the issues must be the same and relate to the same subject matter; and (4) the capacities of the persons must be the same in relation to the subject matter and issues between them. [Emphasis added.]”

The doctrine of res judicata will not hold if any of the cited sections are not present. In the case at bar, it is apparent that the issues involved in claims for benefits under the Workers’ Compensation Act and the Occupational Disease Act are not the same. Under the Workers’ Compensation Act, an injury is defined as “a tangible happening of a traumatic nature from an unexpected cause or unusual strain resulting in either external or internal physical harm and such physical condition as a result therefrom and excluding disease not traceable to injury . . .” Section 39-71-119, MCA. Under the Occupational Disease Act an occupational disease is defined as “all diseases arising out of or contracted from and in the course of employment.” Section 39-72-102(11), MCA. The definition of “injury” and “occupational disease” have different requirements. Although it is possible that a worker could suffer an injury and an occupational disease arising out of a single incident, it does not follow that the above-mentioned legal definitions are the same or even similar.

Res judicata has been defined further as “. . .a judicially created doctrine which literally means a matter adjudged. A final judgment rendered upon the merits without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated. 46 Am.Jur.2d Judgments, Section 394. (Emphasis added.) Res judicata requires that a “court of competent jurisdiction” has rendered a final judgment.

Poppleton initially brought her claim for benefits to the Division, where, without any factual determination, “occupational disease” was stamped on Poppleton’s application. The Division then found that Poppleton had suffered an occupational disease and awarded benefits. The Division of Workers’ Compensation is authorized to determine whether a claimant has suffered an occupational disease. Section 39-72-202, MCA. However, the Division is not authorized to consider any claim under the Workers’ Compensation Act. Section 39-71-2905, MCA, states in pertinent part: “. . . The workers’ compensation judge has exclusive jurisdiction to make determination under Chapter 71 [workers’ compensation] . . .”

When the Division determined that Poppleton suffered an occupational disease, it effectively rendered Poppleton unable to choose her remedy. We have previously held that a claimant is entitled to choose her remedy, whether under the “Occupational Disease Act” or under the “Workers’ Compensation Act.” Ridenour v. Equity Supply Co. (Mont. 1983), [204 Mont. 473,] 665 P.2d 783, 40 St.Rep. 1012. In the case at bar, Poppleton was not given the opportunity to pursue her choice of remedy. Secondly, Poppleton was not allowed to seek such remedy before a court of competent jurisdiction. Accordingly, we hold res judicata does not apply.

Secondly, appellants claim Ridenour, supra, cannot apply because it was decided after a final determination had been rendered in Poppleton’s occupational disease claim. The general rule is that a rule of law will not be applied retroactively if any of the factors listed below are present. The three factors to consider are outlined in LaRoque v. State (1978), 178 Mont. 315, 319, 583 P.2d 1059, citing Chevron Oil v. Huson (1971), 404 U.S. 97, 106, 107, 92 S.Ct. 349, 30 L.Ed.2d 296:

“First, [1] the decision to be applied nonretroactively must establish a new principle of law either by overruling established precedent on which litigants have relied or by deciding an issue of first impression whose resolution was not clearly foreshadowed. Second, the merits of each case must be weighed by looking to the history, purpose and effect of the rule in question and [2] whether retroactive application will further or retard its operation. Finally, [3] the inequity of retroactive application must be considered, for where substantial inequity will result from such application, a ruling of nonretroactivity is proper. [Emphasis added.]”

The first factor when considering a rule of nonretroactive application is that the decision must establish a new principle of law. However, when the former rule of law is unclear, retroactive application is correct. LaRoque v. State (1978), 178 Mont. 315, 319, 583 P.2d 1059, 1061, citing Hanover Shoe v. United Shoe Machinery Corp. (1968), 392 U.S. 481, 496, 88 S.Ct. 2224, 2233, 20 L.Ed.2d 1231.

The second factor is whether the retroactive application of the rule, i.e., Ridenour, will retard or further the rule’s application. We hold that because Poppleton had the right to choose her remedy, a retroactive application of Ridenour is necessary to further the rule.

Finally, we must consider what inequities may result from retroactive application. We held that Poppleton had the right to choose benefits under either the Workers’ Compensation Act or the Occupational Disease Act. It is, therefore, not inequitable to allow Poppleton to seek a remedy which she was formerly entitled to pursue.

In Ridenour v. Equity Supply Co. (Mont. 1983), [204 Mont. 473,] 665 P.,2d 783, 40 St.Rep. 1012, we held that when a claimant could meet the requirements of both the Occupational Disease Act and the Workers’ Compensation Act, the claimant would be allowed to choose his remedy.

“. . . [Although [a] claimant may have had a compensable disease under the Occupation Disease Act, that status did not preclude eligibility under the Workers’ Compensation Act. In other words, a particular claimant could meet the requirements of both acts, thus he would be allowed to choose his remedy. “To allow an election between the acts does not violate the exclusive language of section 39-72-305, MCA. The legislature only intended that an employee not have a common law action against his employer.” Ridenour, 665 P.2d at 786, 40 St.Rep. at 1015.

Today, we hold no opinion as to whether Poppleton suffered a compensable injury. We do hold Poppleton may seek her remedy under either the Workers’ Compensation Act or under the Occupational Disease Act. A claimant may seek benefits under the Workers’ Compensation Act or the Occupational Disease Act; however, a claimant may not receive benefits under both Acts.

We remand and order the Workers’ Compensation Court to determine if Poppleton suffered a compensable injury entitling her to workers’ compensation benefits. If the Workers’ Compensation Court so determines, Poppleton’s award of workers’ compensation benefits must be offset by the amount of benefits that Poppleton previously received under the Occupational Disease Act.

MR. JUSTICES HARRISON, WEBER, GULBRANDSON, SHEEHY and HUNT concur.


source: Caselaw Access Project

author: MR. JUSTICE WEBER

license: Public Domain

text:
    ELMER SAMPSON, Claimant and Appellant, v. BROADWAY YELLOW CAB COMPANY, Employer, and State Compensation Insurance Fund, Defendant and Respondent.
    No. 86-337.
    Submitted March 4, 1987.
    Decided April 2, 1987.
    As Amended on Denial of Rehearing April 30, 1987.
    735 P.2d 298.

      Kelly & Halverson, P.C., Sheehy, Finn & Plath, Patrick Sheehy, Billings, for claimant and appellant.
    Crowley Law Firm, Terry G. Spear, Billings, for defendant and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Claimant appeals an order of the Workers’ Compensation Court which excluded his previously unreported tip income in determining his benefit rate and denied his request for a 20 percent penalty against respondents. We affirm in part and remand in part.

The issues are:

1. Should claimant’s previously unreported tips be included in his wages for determining his proper compensation rate?

2. Did the Workers’ Compensation Court err in denying claimant a 20 percent statutory penalty?

Claimant Elmer Sampson injured his back in September 1975, while working for Broadway Yellow Cab Company. After his injury, Mr. Sampson retained counsel and submitted a claim for benefits to the Division of Workers’ Compensation. The claim included wage information for five pay periods.

The State Fund allowed its normal procedure of using the four pay periods immediately prior to the injury in computing compensation rate. The resulting benefit rate was not challenged at that time by Mr. Sampson or his first attorney. The claim for compensation, the first attorney’s letter to the Division, and the Employer’s First Report all stated Mr. Sampson’s wages without any reference to tips.

For several months, Mr. Sampson received temporary total disability benefits at the rate of $67.64 per week. Then he received 500 weeks of permanent partial disability benefits at the same rate, from February 1976 to September 1985. In September 1985, Mr. Sampson’s permanent partial disability benefits were terminated because the 500-week limit on such benefits had been reached. Mr. Sampson then retained his present counsel.

A petition for a hearing on reinstatement of benefits was filed in December 1985. Mr. Sampson requested the Workers’ Compensation Court to: (1) reinstate his terminated benefits; (2) increase his compensation rate to reflect his tip earnings and his wages from five, instead of four, pay periods; (3) grant a 20 percent penalty; and (4) award him attorney fees. At the pretrial conference, the respondent State Fund contended Mr. Sampson was not permanently totally disabled. In January 1986, however, it conceded permanent total disability and has continued to pay benefits since that time.

Trial on the remaining issues was held on February 5, 1986. At trial, Mr. Sampson testified that he received approximately $40.00 per week in tips. He testified he did not report this income to the Internal Revenue Service and that at that time he did not understand that his failure to report his tips was a violation of the law. He now understands this to be the case. Nevertheless, he admitted that he still has not filed amended tax returns reporting his tips.

The trial court awarded a compensation rate increase of 90 cents per week retroactive to claimant’s injury date of September 2, 1975, based on five pay periods instead of four. It did not include Mr. Sampson’s tip income for determining the rate, stating that it would not allow claimants to increase their claims by introducing previously unreported wages. It denied the 20 percent penalty and awarded attorney fees. Mr. Sampson appeals the exclusion of his tip income and the denial of the 20 percent penalty.

I.

Should claimant’s previously unreported tips be included in his wages for determining his proper compensation rate?

Ten years after his injury, Mr. Sampson claims for the first time that he received approximately $40 per week in tips, which should be included in his wage base. Mr. Sampson points out that tip income is usually included in computing workers’ compensation benefits. See 2 Larson, Workmen’s Compensation Law, Section 60.12 (1986). In denying the request that this tip income be retroactively calculated into his wage base, the Workers’ Compensation Court stated that:

“Claimant further argues that his tips should have been included in the wage rate calculations. The sole evidence presented with regard to tips in [sic] the testimony of the claimant which he reported to average $10.00 per day. ‘. . .[t]his Court will not establish a policy whereby claimants will be allowed to increase the defendant’s evaluation of the settlement value by introducing previously unreported wages.’ [References made to workers’ compensation cases.] Claimant is not persuasive in his arguments.”

On appeal, the respondents argue that Mr. Sampson is equitably es-topped from adding his claim for benefits for tip income at this late date. They point out that after the passage of more than 10 years it is impossible to determine whether the reported tips are accurate. While it is not mentioned in the lower court’s findings, the undisputed testimony of Mr. Sampson’s employer at Broadway Yellow Cab was that the cab company kept no records of employees’ tips in 1975. But Mr. Sampson says that equitable estoppel cannot be considered because it was not raised in the pleadings.

This Court has refused to consider claims of equitable estoppel not raised in pleadings filed in district court. Sun Dial Land Co. v. Gold Creek Ranches (1982), 198 Mont. 247, 645 P.2d 936. However, in this workers’ compensation case no responsive pleading was filed, or required, as would be true in district court. The first documents filed by respondents were a pretrial statement and the pretrial order. Both documents set out the respondents’ contentions that claimant’s benefits were properly calculated and claimant was paid at the proper statutory rate. In contrast to pretrial orders used at district court, the precise legal theories of the parties are not set out. The transcript of trial demonstrates that in their opening statement, respondents made it clear that they would rely on Mr. Sampson’s failure for over 500 weeks to complain about his rate of benefits or to claim his tip income. The theory of equitable estoppel was set out in respondents’ proposed findings and conclusions. We conclude that the rule in Sun Dial is not appropriate in this situation, because of procedural differences from District Court and the presence of notice to claimant of the basis on which his claim would be resisted.

While it appears that the basis for the court’s decision was equitable estoppel, the theory is not clearly expressed in the findings or conclusions. In Sweet v. Colborn School Supply (1982), 196 Mont. 367, 372-73, 639 P.2d 521, 524, this Court described the six elements necessary to constitute an equitable estoppel:

“(1) there must be conduct, acts, language, or silence amounting to a representation or a concealment of material facts; (2) these facts must be known to the party estopped at the time of his conduct, or at least the circumstances must be such that knowledge of them is necessarily imputed to him; (3) the truth concerning these facts must be unknown to the other party claiming the benefit of the estoppel at the time it was acted upon by him; (4) the conduct must be done with the intention, or at least with the expectation, that it will be acted upon by the other party, or under the circumstances that it is both natural and probable that it will be so acted upon; (5) the conduct must be relied upon by the other party, and, thus relying, he must be led to act upon it, and (6) he must in fact act upon it in such a manner as to change his position for the worse. (Cases cited.)”

Since these elements require factual determinations, we remand to the lower court for entry of additional findings and conclusions consistent with its judgment. Such findings and conclusions shall address the elements of equitable estoppel set out in Sweet. The passage of more than 10 years combined with the inability of Mr. Sampson or his employer to submit proof on the alleged tips indicates that the doctrine of equitable estoppel applies.

II.

Did the Workers’ Compensation Court err in denying claimant a 20 percent statutory penalty?

The statute at issue is Section 39-71-2907, MCA:

“When payment of compensation has been unreasonably delayed or refused by an insurer, either prior or subsequent to the issuance of an order by the workers’ compensation judge granting a claimant compensation benefits, the full amount of the compensation benefits due a claimant, between the time compensation benefits were delayed or refused and the date of the order granting a claimant compensation benefits, may be increased by the workers’ compensation judge by 20%.”

Whether an action is “unreasonable” under this statute is a question of fact which is subject, on appeal, to the limited review of the substantial evidence test. Coles v. Seven Eleven Stores (Mont. 1985), [217 Mont. 343,] 704 P.2d 1048, 1052, 42 St.Rep. 1238, 1242. Mr. Sampson contends that a penalty should be awarded because of the unreasonable failure to pay total disability benefits from the time he was first injured.

The only legitimate excuse for delay of proper payment is the existence of genuine doubt, from a medical or legal standpoint, that liability exists. Holton v. F.H. Stoltze Land & Lumber Co. (1981), 195 Mont. 263, 269, 637 P.2d 10, 14. Mr. Sampson did not request reconsideration of his designation as permanently partially disabled at any time from 1975 until September 1985. After his 500 weeks of permanent partial benefits were terminated, Mr. Sampson requested, among other things, a reconsideration of his benefit designation. Conflicting medical evidence existed as to what Mr. Sampson’s physical and mental condition would allow him to do. There was evidence that he was employed during parts of the period he received workers’ compensation, and there was medical evidence that his problems were caused by his obesity, not by his industrial accident. The State Fund did eventually agree to award him permanent total disability benefits and reinstituted benefits under this designation.

Upon a thorough review of the record, we find substantial credible evidence to support the determination of the Workers’ Compensation Court that the respondent did not unreasonably delay or refuse benefits. The decision of the lower court on this issue is therefore affirmed.

This case is remanded to the Workers’ Compensation Court for reconsideration on the tip income issue as herein required.

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

MR. JUSTICE SHEEHY did not participate.


text:
    The MATTER OF GARY W. GILBERT, an Attorney at Law, Respondent.
    No. 86-066
    Decided April 1, 1987.
    738 P.2d 476.
   OPINION AND ORDER

Gary W. Gilbert was convicted on his plea of guilty in the United States District Court for the District of Montana, Great Falls Division, the Hon. Paul G. Hatfield, Federal District Judge presiding, of violating Title 18, U.S.C. Section 1001, in that for a period specified he had received Title 2 Social Security disability benefits from the United States Department of Health and Human Services, and that he was required to report to the Department whether he was capable of employment, and that he failed to advise the Department that he was engaged in the practice of law, or able to practice law as an attorney and was not eligible for the said benefits.

The United States District Court ordered that the imposition of sentence upon Gary W. Gilbert be suspended, and he was placed on probation for a period of five years, one year of formal probation and four years of informal probation pursuant to Title 18, U.S.C. Section 3651.

Gary W. Gilbert was also required to make restitution to the federal government of the amounts which he had improperly received through the concealment of his ability to work.

Two other counts of a three count indictment against Gary W. Gilbert were dismissed by the Federal District Court (Vol. 6, page 61, Criminal Judgment Docket, U.S. District court for the District of Montana, Great Falls Division).

Gary W. Gilbert had been admitted to practice law in the State of Montana on June 11,1973, and since that time had practiced principally in the Havre and Great Falls areas. After his indictment in the Federal District Court, his counsel forwarded to the Commission on Practice Gilbert’s attorney’s license, which he offered to surrender. When the fact of the surrender of Gilbert’s license was reported to this Court, we requested his counsel to keep us advised as to the progress of the criminal charges against Gilbert. Upon his subsequent conviction, his counsel notified this Court of his conviction on April 29, 1985.

Under Rule 16(B) of the Rules Governing the Commission on Practice, when this Court is advised that a lawyer subject to disciplinary jurisdiction has been convicted of a crime, we may, either with or without the recommendation of the Commission, determine whether the crime is a “serious” crime. On December 3, 1985, we remanded this matter to the Commission on Practice, and directed the Commission to take such steps as would lead to its written recommendation as to whether the crime of which Gary W. Gilbert was convicted was a “serious” crime within our rules of discipline and if so, what proper discipline should be administered in this cause.

Thereafter, the Commission filed and served a complaint upon Gilbert, to which Gilbert responded, denying that the crime was “serious” and praying for a hearing. Following a hearing where Gilbert was represented by counsel, the Commission made and adopted the following conclusions:

“1. That Gilbert was guilty of making a false statement, a felony, as specified in Title 18, U.S.C., Section 1001.
“2. That the crime for which he stands convicted is a ‘serious’ crime.
“3. That the respondent received substantial sums from the United States Department of Health and Human Services knowing that he did not qualify to receive the same and making false statements to receive and retain funds which he knew he was not entitled to receive.
“4. That he was given a five year sentence, imposition of which was suspended [and reciting the conditions of probation].”

Following receipt of the report from the Commission on Practice, and the service of the copy of the report upon the respondent, we received on December 29, 1986, an answer from the respondent. He expresses his remorse and sorrow for his transgression. He asked that he not be disbarred but that he be suspended from practice for a period of five years commencing on January 1, 1984, after which he would request a review of his behavior for that five years to determine if he were then worthy to become a member once again of the Bar of this state.

No appeal or other proceedings have been initiated in the Federal District Court from the judgment of conviction and the same has become final.

The determination of the Commission on Practice that the crime of which Gilbert was convicted is a “serious” crime within the intent and purpose of Rule 16, Rules Governing the Commission on Practice, is well-founded, and the conclusion is by this Court adopted. The record before us bears out that for a considerable period of time Gilbert accepted Social Security Administration benefits for himself and his family as a totally disabled wage earner. Our record is uncertain as to the actual amount of restitution that he is required to make to the government, but Gilbert testified before the Commission that the latest figure was approximately $52,000.

We must admit that the possibility of Gilbert making income enough to support his family and to make restitution to the Government is bleak. His physical condition, which brought about his eligibility for Social Security benefits in the first place is that he has a degenerative eye condition which has taken away his peripheral vision, leaving him with a weakened tunnel vision which probably will worsen. He is admittedly, legally blind. Before he attended law school, he had been a teacher, but he had allowed his teachers certificate to lapse after he began practicing law. He has applied for a renewed teachers certificate and taken additional educational courses, therefore, but his certificate has not been renewed, and he assumes that it is because of the felony conviction on his record. He has had no success in the interim between his conviction and the proceedings before the Commission on Practice in finding a job or occupation that would pay more than $450 to $500 per month. He is accruing child support payments which are his obligation and on which he is accruing a deficit, although the court recently reduced the required amounts of his payments.

It is clear, therefore, that if we were to order suspension of his license rather than disbarment, it would make little difference in his ability to earn. In addition, his conviction for a felony constituting a serious crime is an overweighing factor requiring his disbarment. We determine that the Commission on Practice acted properly in recommending his disbarment.

ACCORDINGLY, IT IS ORDERED:

1. Gary W. Gilbert be and he is hereby disbarred from the practice of law in any courts in the State of Montana wherein a license to practice is required.

2. Respondent Gary W. Gilbert shall proceed forthwith to comply with the provision of Rules 21 and 22 of the Rules Governing the Commission on Practice.

3. The Clerk of this court shall give notice of the discipline imposed hereunder in accordance with Rule 14.

4. The Clerk of this Court shall mail copies of this order to respondent, to counsel of record, to the prosecutor of the Commission on Practice, and to the secretary of the Commission on Practice.

DATED this 1st day of April, 1987.

s/J.A. Turnage, Chief Justice

s/John Conway Harrison, Justice

s/Fred J. Weber, Justice

s/L.C. Gulbrandson, Justice

s/John C. Sheehy, Justice

s/William E. Hunt, Sr., Justice


author: MR. JUSTICE SHEEHY MR. JUSTICE WEBER

text:
    STATE OF MONTANA, DEPARTMENT OF REVENUE, Plaintiff and Appellant, v. KENNETH JOHN FRANK, Defendant and Respondent.
    No. 86-423.
    Submitted on Briefs Dec. 18, 1986.
    Decided April 2, 1987.
    735 P.2d 290.

      John D. Koch, Child Enforcement Program, Great Falls, for plaintiff and appellant.
    Randall O. Skorheim, Great Falls, for defendant and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

In this case we uphold the determination of the District Court, Eighth Judicial District, Cascade County, that there was an accord and satisfaction of the claim of the Department of Revenue against Kenneth Frank for recoupment of monies paid by the State as Aid to Families of Dependent Children (AFDC).

We also pass upon the propriety of the procedures used by the Department in attempting recoupment where there exists a District Court order for child support arising out of a marital dissolution proceeding.

The marriage of Judith and Kenneth Frank was dissolved in 1979. The District Court decree awarded custody of the three minor children to Judith, and Kenneth was ordered to pay child support in the amount of $100 per month per child until the children reached majority. The children are not of the age of majority at the time of this appeal.

Three months after the dissolution, in November, 1979, Judith became a recipient of AFDC funds, and assigned her right of child support from Kenneth to the Department of Revenue.

On February 27,1980, the Department issued a “Notice of Support Debt” for $374. The notice, however, was not served on Kenneth until six weeks later, on April 8, 1980. Kenneth did not request a hearing on the support debt pursuant to the notice. On June 12, 1980, the Department filed in the District Court of Cascade County, its warrant of distraint for a debt of $1,340 and requested a writ of execution directed to the sheriff of Cascade County to attach any accounts in which Kenneth might possess an interest. The writ of execution was requested by the Department on April 21, 1981, and was returned without any funds being collected.

On May 31, 1983, the Department requested a further writ of execution, which, issued on June 9, 1983, was returned “no accounts”. On June 8, 1983, the Department filed an “Amended Warrant for Distraint” against Kenneth for a claimed debt of $7,040. On June 27, 1984, the Department filed with the Clerk of the District Court its “Second Amended Warrant of Distraint” against Kenneth, claiming $14,240 of debt due.

Aside from the original communication to Kenneth from the Department specifying a $374 debt, no further “Notice of Support Debt” was served upon Kenneth with respect to the accruing support payments, and the Department further failed (with respect to each filing of distraint warrant) to give any notice to Kenneth of a right to a hearing on each warrant.

Other events occurred which affected Kenneth’s ability to make child support payments. He was a painter and suffered an industrial accident in August, 1980, which left him totally disabled. He was unable to return to work until January, 1985. Until February, 1984, his only income was $219 per week from Workers’ Compensation benefits. He entered into a lump sum settlement with the State Insurance Fund on his compensation claim. When Kenneth submitted his petition for lump sum settlement, he submitted an affidavit in which he indicated he believed $8,500 would be required to make up his child support arrearages. At the time, the Department had calculated his arrearages to be $7,040.

Another important event related to Judith. She remarried three times while a recipient of AFDC funds without notifying the agency of her marriages. Her failure to notify the Department is an apparent violation of Section 53-4-237, MCA, which provides:

“. . . in the administration of this part the department may consider the income and resources of stepparents and other individuals who reside in the home as resources and income available to the household.”

Moreover, Judith did not steadily receive AFDC funds. She was an AFDC recipient in November and December, 1979, and during the years 1980 and 1981. She did not receive any AFDC funds during 1982 and most of 1983. She received a $425 grant in December, 1983, and a $425 grant in January, 1984. Over the entire period, the Department retained its assigned interest in the support payments, and Kenneth’s debt to the Department was calculated as accruing in periods when Judith was not receiving any AFDC funds.

A third important event was that in April, 1984, Kenneth petitioned for and was granted custody of the minor children. Because Judith moved to another state to prevent enforcement of the change of custody, Kenneth spent approximately $3,000 to have the children returned to his care.

In the fall of 1983, a Department investigator wrote Kenneth’s attorney informing him that the arrearage had grown to $7,040 and indicated an interest in negotiating a settlement. In February, 1984, another Department investigator wrote Kenneth’s attorney informing him that the debt had grown to $7,640. According to the Department’s testimony, this letter indicated that there was a possibility that the debt amount might be discounted to encourage settlement. A month later, on March 24, 1984, Kenneth’s attorney sent to the Department a check for $1,000 accompanied by a letter stating that the check was offered as a full and final compromise payment. The Department cashed the check and did not communicate further with Kenneth until it began garnishing his wages in January, 1985. The Department never informed Kenneth, either formally or informally, that his letter offer of March 26, 1984 had been rejected.

Kenneth reentered the work force in January, 1985, as a painting supervisor. He had remarried and had custody of the three minor children of his previous marriage. He was earning $336 per week.

The Department, through its regional supervisor in Great Falls, served upon Kenneth’s employer a notice of levy which commanded the employer to withhold from Kenneth’s paycheck 50% of the net proceeds then and in the future.

On February 8, 1985, Kenneth, through his attorney, moved the District Court for relief from the warrants of distraint and for stay of enforcement. The District Court granted a temporary stay and set the matter down for hearing. The Department filed its motion to dissolve the temporary restraining order and further moved that Kenneth be required to furnish a bond. The motion to dissolve the temporary restraining order and to require a bond were denied. At a hearing held before the District Court on March 28, 1985, the motion for permanent injunction was taken under advisement and on July 30, 1986, the District Court issued its findings of fact, conclusions and the order which is the subject of this appeal.

The Department of Revenue urges five issues on appeal:

1. The District Court lost jurisdiction of the cause under Rule 60(c), M.R.Civ.P. when it issued its findings of fact, conclusions of law and order more than 45 days after the motion filed on February 8, 1985.

2. The District Court’s determination that Kenneth should not receive due process was incorrect.

3. Neither the fraud of Judith nor the mistake of the Department eliminates Kenneth’s obligation to make child support payments.

4. The court erred in determining that there had been an accord and satisfaction.

5. The court erred in determining that Kenneth was entitled to attorneys fees and costs.

JURISDICTION

The first issue relates to whether the District Court had jurisdiction under the time restraints of Rule 60(c), M.R.Civ.P. to set aside the judgment effect of the filing of a warrant distraint. Rule 60(c), M.R.Civ.P. provides:

“Time for determining motions. Motions provided by subdivision (b) of this rule shall be determined within the times provided by Rule 59 in the case of motions for new trials and amendment of judgment and if the court shall fail to rule on the motion within the 45 day period, the motion shall be deemed denied.”

The Department argues that the time elapsing between the date of the father’s motion for relief from judgment, February 8, 1985, and the hearing on the motion, March 28, 1985 was 48 days, and the order itself did not come down until July 30, 1986, and that thereby the District Court lost jurisdiction of the cause.

In cases for collections for delinquent taxes, or the recoupment of AFDC payments as here, where the collection is based upon warrants of distraint, a judgment as such is not actually entered by a District Court. Instead, the Department of Revenue files a warrant of distraint with the Clerk of the District Court, whose duty is then to file the warrant in the judgment docket with the name of the taxpayer or parent listed as the judgment debtor. Section 15-1-704, MCA. Upon the filing thereof, there is a lien against all real and personal property of the delinquent taxpayer or nonpaying parent in the county where the warrant is filed. Section 15-1-701(2), MCA. Thus, the filing of the warrant by the Department with the District Court has the same lien effect as a properly docketed judgment and the Department may collect delinquent taxes and enforce the tax lien or recoup AFDC funds in the same manner as a judgment is enforced. Section 15-1-701(2), MCA; Section 40-5-241, MCA.

In this case, the effect of the motion of Kenneth for relief from judgment and a stay of enforcement is the same as the situation of a person seeking relief from a judgment of the District Court under Rule 60(b), M.R.Civ.P. It is, however, provided in Rule 60(b) that the rule

“. . . does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as may be required by law . . .”

The time limitations provided in rule 60(c) must be read in light of the principle set out in Rule 60(b), which provides for such an independent action. The residual power of the District Court therein preserved is a complete reservation of the District Court’s independent power. Its purpose is to protect equity by “not enforcing a judgment obtained against the public conscience.” Thomas v. Savage (1973), 161 Mont. 192, 505 P.2d 118, 120; Elliston Lime Company v. Prentice Lumber (1971), 157 Mont. 64, 483 P.2d 264. The residual power portion of Rule 60(b) was enacted particularly to prevent an injustice. For that reason, we hold that Kenneth’s motion to set aside enforcement of an unserved warrant of distraint was an independent action, and thus is not subject to the 45 day time limitation of Rule 60(c), M.R.Civ.P.

DUE PROCESS

The District court concluded that because the defendant had never been personally served with the amended warrants of distraint or afforded an opportunity for a hearing before their entry that his right to due process under both federal and state constitutions was violated.

The Department argues that there is no post-judgment right to notice of hearing before levy of execution, relying on Endicott-Johnson Corporation v. Encyclopedia Press (1924), 266 U.S. 285, 45 S.Ct. 61, 69 L.Ed.2d 288. It argues that under Mathews v. Eldridge (1976), 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18, which concerns administrative procedures, there must be a balance of governmental and private interests to determine whether they are constitutionally sufficient for due process. The Department contends that because it made AFDC payments, it was automatically subrogated to the wife’s right to press for collection of her dissolution decree judgment under Section 40-5-222, MCA. It further contends that the notice served on Kenneth on April 8, 1980, is a sufficient notice of the assignment and all accruing support payments thereafter due under the District Court order in the dissolution proceedings. The Department also points to the case of Duranceau v. Wallace (9th Cir. 1984), 743 F.2d 709, holding that the State of Washington’s administrative procedures for collecting past due child support did not violate the due process clause of the United State Constitution.

Montana participates in the use of federal grants and other sources to make AFDC payments. The program in our statutes for the recoupment of AFDC funds from parents who in dissolution proceedings or other custody matters have been ordered to make child support payments grows out of the necessity to comply with the federal programs. Thus, under federal law, an applicant for AFDC funds must assign all rights to accrued support at the time of payment to the state agency. 42 U.S.C. Section 602(26)(A). The assignment by the recipient to the state allows the state to make collections which are on behalf of the state and the federal government. 42 Section U.S.C. 654(5). The amounts collected thereby are distributed to the state and federal agencies until the AFDC funds and other costs are recovered, the balance to be distributed under certain rules to the family. 42 U.S.C. Section 657(b).

The state has two avenues under its state statutes, to gain recoupment of AFDC payments. If there has been no District Court order, the Department can proceed under Section 40-5-223, MCA, to serve a notice of liability and undertake subsequent recoupment proceedings. If there is a district court order, as in this case, the Department proceeds under Section 40-5-222, MCA. Under that statute, the Department is empowered to send out a “notice of debt” which includes a statement of the support debt accrued or accruing, and which informs the delinquent parent that he is entitled to a fair hearing. In this case such a notice of debt was sent out and Kenneth did not request any further hearing. When 31 days have elapsed after service of the notice of debt, the Department may issue a warrant for distraint based on the amount of the support debt. Section 40-5-241, MCA. Such a warrant, however, is subject to the provisions of Sections 15-1-701, 15-1-704, 15-1-708, and 15-1-709, MCA. Section 40-5-241, supra.

The sections which appear in Title 15, referred to in Section 40-5-241, relate to the collection of delinquent tax payments, which is also a function of the Department of Revenue. It is Section 15-1-701 which provides that a distraint warrant, upon filing with the County Clerk and Recorder, becomes a lien against real and personal property of the delinquent parent. It appears strange that Section 40-5-241, MCA, in incorporating for delinquent support payments the procedures used to collect delinquent taxes, did not include Section 15-1-705, MCA. That section provides that the judgment debtor after the filing of a distraint warrant is entitled to a hearing. It states:

“The Department must provide notice of the right to hearing to the taxpayer. A request for hearing must be made in writing within 30 days of the date of the notice. This notice may be given prior to the notice referred to in 15-1-702 . . .”

In recoupment cases, the judgment that is obtained by the Department through the filing of a distraint warrant with the Clerk of the District Court is to be distinguished from a judgment that is lodged and entered through an order of the District Court. In the case of a judgment issued by a district court, there is provision made for notice of entry of judgment, although it is true that execution may occur before the notice of entry of judgment has been served. However, a judgment entered by a district court occurs presumably after a full opportunity (unless the judgment debtor has defaulted) for notice and hearing on the claim which results in the judgment. In the case of a warrant of distraint for recoupment, no such opportunity is afforded the alleged delinquent parent. This case illustrates the necessity of notice of hearing upon the filing of the distraint warrant to the parent who thereby becomes a judgment debtor. If Section 15-1-705, MCA, had also been made part of the procedure for recoupment under 40-5-241, Kenneth would have been notified with the filing of each distraint warrant and given an opportunity to present the arguments that are now presented as to why he should not be held liable for those payments. Because Kenneth was never given notice of the filing of the distraint warrants against him in the office of the Clerk of the District Court, and was not given any further notice of accruing debt after the first notice had been served upon him, we hold that Kenneth was deprived of notice and opportunity for hearing which would have accorded him due process. We uphold the District Court in its conclusion.

ACCORD AND SATISFACTION

We skip to the next issue of accord and satisfaction, because it is determinative in this case. The Department contends that the District Court was in error in finding that the debt owing to the State for AFDC payments was fully and finally satisfied by accord and satisfaction. The Department argues that the debt was liquidated and accordingly satisfaction was impossible without the Department’s written acceptance. Section 28-1-1403, MCA. Because of its claim that the indebtedness owed by Kenneth is liquidated, the Department relies on Sawyer v. Sommers Lumber Co. (1929), 86 Mont. 169, 282 P. 852. The statement in Sawyer is, of course, illuminating:

“An accord and satisfaction is founded upon contract, and a consideration therefor is necessary. By the great weight of authority, if the indebtedness is unliquidated or in dispute, payment by the debtor of an amount less than claimed by the creditor, and the receipt by the latter of such amount under such circumstances that he is bound to know that the intention was to make the payment in full settlement of the claim, will discharge the whole claim, and the creditor may not thereafter maintain an action to collect additional sums. Under these circumstances there is an agreement to compromise the differences between the parties, and, there being a dispute, a consideration for the agreement exists. (Citing authority).
“If plaintiff’s claim was unliquidated, his acceptance of the check under the circumstances disclosed by the record constituted an accord and satisfaction. If the claim was liquidated, it could be discharged only by payment in full or by payment of a lesser amount and acceptance thereof in writing. (Citing authority). There was not an acceptance in writing. The indorsement (sic) of the check by plaintiff for the purpose of cashing it is not such a writing as is contemplated by [quoting a statute] and it follows that the only question for determination is: Was the claim liquidated or unliquidated?
“A claim is liquidated when the amount due is fixed by law or has been ascertained and agreed upon by the parties. (Citing authority.)

86 Mont, at 177, 282 P. at 854.

The letter of March 26, 1984, sent by Kenneth’s attorney to the Department clearly indicated that the $1,000 was offered as full settlement. It pointed out that the lump sum settlement which Kenneth had received for his compensation claim was not attachable, and the letter was notice given separately from the check itself that negotiation of the check would represent consent to a full compromise of the Department’s claim against Kenneth. There was more here to the cashing of the check than the mere endorsement by the Department. The separate letter was notice that negotiation and acceptance of the check constituted an accord and satisfaction. Further, although Kenneth’s support payments were set by a decree of the District Court, and in effect were thereby made certain, the question of the right to recoupment in this case is not certain. Kenneth would surely not be liable to the Department if Judith had obtained payments through fraud and it is very uncertain that Judith could have enforced the support judgment. A subrogee, if the Department is a subrogee, stands in the shoes of the subrogor.

We determine and agree with the District Court that the Department’s claim against Kenneth was a disputed and unliquidated claim and acceptance by the Department of the check, which was accompanied by the letter of March 26, 1984, does in fact create an accord and satisfaction.

ATTORNEY FEES

The District Court has ordered that Kenneth receive his attorney fees and costs, although the amount of attorney fees has not yet been decided by the District Court. The Department appeals from the award of attorney fees, contending that no statute authorizes awarding attorney fees to the prevailing party in a Rule 60(b) motion, that no contract exists between the parties under which the reciprocal payment of attorney fees would be allowed, and because no statutory or contractual authority exists, the award of attorney fees should be reversed. State ex rel. Foss v. District Court (Mont. 1985), [216 Mont. 327,] 701 P.2d 342, 42 St.Rep. 845; In Re Marriage of Cannon (Mont. 1985), [215 Mont. 272,] 697 P.2d 901, 42 St.Rep. 348.

Under Section 25-10-711, MCA, an award of costs, including attorney fees, may be granted against a governmental entity if the person prevails against the governmental entity and the court finds the claim or defense of the governmental entity frivolous or pursued in bad faith. The court order stated:

“4. That, because of the foregoing accord and satisfaction, the defendant is awarded costs and attorney fees . . .”

The award of the attorney fees by the District Court implies that the court found that the state acted in bad faith in this matter. After receiving the check and cashing the same in an accord and satisfaction, the Department, about one year later, levied execution upon the wages of Kenneth from his newly-found job. Moreover, although under the restraining order of the court, the Department was to hold in abeyance any attempts at collection or enforcement of the distraint warrant, the Department received, from the Internal Revenue Service as a result of action taken by the Department prior to the entry of the stay order, $1,593.38 representing Kenneth’s 1985 income tax refund. Moreover, the Department received his state income tax refund of $401.50. The Department moved the District Court for an order to pay the monies into court, which was granted. As of the date of the Department’s brief, a total of $4,598.31 has been paid into court under the Department’s motion to prevent the funds from falling into Kenneth’s hands.

In State ex rel. Florence Carlton Consolidated Schools District v. District Court (Mont. 1981), 632 P.2d 318, 38 St.Rep. 1204, we stated that if under all the circumstances of a case, justice would require the imposition of costs, equity can further provide in extreme cases, to allow attorney fees as an element of those costs. We have here a case where the Department has lodged judgments against Kenneth, which constitute liens on his real and personal property. They have garnished his wages and intercepted his federal and state income tax refunds. The levy of execution applied not only to his accrued wages, at the time of the levy, but to any future wages he might receive (a point not raised by Kenneth but open to question; ordinarily an execution cannot reach future credits, but only accrued credits). He has further been forced to this appeal and the delay thereby engendered. In all the circumstances, it appears that the District Court was correct and that equity demands that Kenneth be awarded attorney fees both for the proceedings in District Court and for this appeal. Such an award is within the sound discretion of the trial court. Joseph Russell Realty Co. v. Kenneally (1980), 185 Mont. 496, 605 P.2d 1107; Foy v. Anderson (1978), 176 Mont. 507, 580 P.2d 114.

We need not consider the further issue raised by the Department relating to whether Judith acted fraudulently or the Department made a mistake. That issue has no bearing on the outcome of this appeal.

Accordingly, we affirm the District Court and remand this cause for the determination of costs and attorney fees in accordance with this Opinion. See Rule 33, M.R.App.Civ.P., for the collection of costs on appeal.

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

MR. JUSTICE WEBER

specially concurring:

I agree with the conclusion of the majority opinion that the issue of accord and satisfaction is determinative in this case. I further agree with the determination of the majority opinion that the claim was a disputed and unliquidated claim and that acceptance by the department of the check created an accord and satisfaction. In addition I concur with the affirmation by the majority of the attorney’s fee determination by the District Court. As a result, I concur in the majority opinion.

I do not join in the majority conclusion that the motion to set aside enforcement was an independent action and not subject to the limitations of Rule 60(c) M.R.Civ.P. In particular, I do not agree with the majority conclusion that the absence of personal service of the amended warrants of distraint constituted a violation of the defendant’s rights to due process.

MR. JUSTICE GULBRANDSON concurs in the foregoing special concurrence.

        FOOTNOTES

      1. YOU ARE HEREBY notified that the Department of Revenue finds that you are in arrears $374.00 in the child support which you were ordered to pay in Cause No. BDR-79-653, entered into the EIGHTH DISTRICT Court, CASCADE County, State of MONTANA. This Decree ordered you to pay $300.00 per week/month/year for the support of your minor children Bobby, Jimmy and Lori Frank.
      You are required to pay the Department of Revenue this $374.00 arrearage debt within 20 days. You are also required to make current support payments each week/ month to the Department of Revenue in the amount of $300.00. Section 40-5-222, MCA. The Department of Revenue is subrogated to or assigned the right to collect the child support payments which you are obligated to pay.

        You are further given notice that should you fail to respond to this order for payment within 20 days from the date you are served with this Notice, the State of Montana may subject your property to distraint, seizure, and sale. Any net proceeds will be applied to the satisfaction of your support debt.
      THEREFORE, be advised that should you fail to pay your support debt within 20 days of receipt of this Notice or refusal of Notice, that distraint, seizure, and sale of your property will be lawful without further Notice.
      DATED this 27th day of February, 1980.
      Signed: /S/ Clarice Milligan
      Title: Investigator

      .
      Lori Hoard Posey Investigator
      Department of Revenue Legal Division/ Child Support Enforcement
      503 First Avenue North, Suite 407 Great Falls, Montana 59401
      Dear Ms. Posey:
      Re: Kenneth J. Frank — Back Child Support
      Enclosed please find a check made out to your office in the sum of $1,000 as full and final compromise payment of the above referenced debt. Negotiation of this check will represent your consent to this matter being fully compromised for this amount and for Mr. Frank’s no longer owing you anything.
      Be advised that, as you well know, Workers’ Compensation benefits or the proceeds thereof, are not attachable. Mr. Frank hasn’t worked for three and a half years and is still unemployed because of his injuries. This is why we feel that the $1,000 payment is the best that Mr. Frank can do and even that amount will work a hardship on him and his family.
      If you have any questions, please feel free to contact me at your convenience. Again, negotiation of this check represents full and final compromise settlement of any claims you may have against Mr. Frank as of the date of this check.
      Yours truly,
      OVERFELT LAW FIRM


author: PER CURIAM.

text:
    In re the MATTER OF GERALD P. LaFOUNTAIN, An Attorney at Law, Respondent.
    No. 86-153.
    Decided March 12, 1987.
    738 P.2d 472.
   ORDER

PER CURIAM.

This is the time fixed for imposition of discipline upon Gerald P. LaFountain.

The Court has received and considered the report to the Commission on Practice of the State of Montana, Transcript of Proceedings in the Matter of Respondent before the Commission, Findings of Fact, Conclusions and Recommendations of the Commission, brief of Special Counsel for the Commission and brief of counsel for respondent.

The Commission on Practice has recommended that discipline be imposed upon Gerald P. LaFountain, an attorney and counselor at law, respondent herein, as follows:

“1. That the respondent be publicly censured and that such censure by administered by the Supreme Court of the State of Montana;
“2. That the respondent be ordered suspended from the practice of law in the State of Montana, for a period of six months;
“3. That the respondent be assessed and required to pay the cost of these proceedings.”

The Court agrees with and accepts the Findings of Fact, Conclusions and Recommendations of the Commission on Practice dated October 1, 1986, and filed with the Court October 22, 1986.

These proceedings find their origin on September 14, 1983, with a civil complaint filed by respondent on behalf of Ronald and Barbara LaFontaine against State Farm Mutual, and respondent’s attempted service of process upon State Farm Mutual. The incredible series of events that followed, for which sole responsibility rests upon the shoulders of respondent, has placed him in the unfortunate situation in which he finds himself today.

This order may appear to be unduly lengthy; however, for this matter to be understood we find it necessary to set forth a major portion of the factual findings and conclusions of the Commission on Practice:

“FINDINGS OF FACT
“1. The respondent, Gerald P. LaFountain, is an attorney authorized to practice law in the State of Montana.
“2. On September 14, 1983, in behalf of his clients, Ronald and Barbara LaFontaine, respondent' fiíed a Complaint against State Farm Mutual, alleging bad faith in settling a claim arising from an automobile accident between the plaintiffs and State Farm’s insured. Respondent purported to serve the Summons and Complaint against State Farm at its Billings claim office, contrary to the provisions of Section 33-1-602, MCA, which requires that service upon a foreign insurer be made on the Commissioner of Insurance. State Farm did not answer the improperly-serve Complaint, and on October 6, 1983, respondent filed a default with the Clerk of Court for Yellowstone County. Personnel in the Clerk of Court’s office recognized that the Return of Service was faulty on its fact, and presented the matter to the Honorable Robert H. Wilson, who caused the words “improper service” to be written on the default, and the document was then stapled to the reverse flap of the court file, and not filed with the other documents. Subsequently, State Farm learned of the attempted default, and on November 9, 1983, through their counsel, William Mather, filed a Motion to Dismiss the Complaint for lack of personal jurisdiction, or in the alternative, to quash return of service. Hearing was held on such motion on December 2, 1983, and on that date, Judge Wilson issued the following Order:
“ ‘The Defendant, having moved to dismiss, or in the alternative, to quash return of service, and the Court considering written briefs and oral arguments;
“ ‘NOW, THEREFOR, IT IS ORDERED that said Motion be, and thereby is Granted, and that said return of service be, and hereby is quashed.’
“3. On December 30, 1983, respondent filed a Notice of Appeal to the Montana Supreme Court, from the December 2, Order. On April 10, 1984, in Cause No. 84-75, the Supreme Court dismissed the appeal and issued its Per Curiam Order as follows:
“ ‘Defendant and respondent has filed herein a motion to dismiss this appeal, together with a memorandum of law in support thereof. Plaintiffs and appellants have filed objections to said motion with a memorandum of law and documentary exhibits attached. All have been examined and considered by the Court.
“ ‘IT IS ORDERED:
“ T. The appeal is dismissed without prejudice on the grounds that the order appealed from is not an appealable order and the cause is remanded to the District Court.
“ ‘2. The Clerk is directed to mail a true copy hereof to counsel of record for the respective parties.
“ ‘DATED this 10th day of April, 1984.’
“ ‘4. On the morning of May 4, 1984, respondent presented himself to Hardin E. Todd and Harry M. Reed, Clerk and Deputy Clerk of Court of Yellowstone County, and represented to Todd and Reed that he had won the appeal before the Montana Supreme Court and was entitled to a default judgment against State Farm for $150,000 in punitive damages, plus $385.00 in costs. The local rule of practice in the Thirteenth Judicial District required that all default judgments be entered by the District Judge, and accordingly, Reed asked respondent to present his proposed Judgment by Default document to the Honorable W. Holmstrom, who by that time had replaced the retired Judge Wilson. After waiting in Judge Holmstrom’s courtroom for approximately one-half hour, respondent returned to the Clerk’s office and advised Mr. Reed that the Judge was occupied with law and motion matters. Respondent then requested the clerk to enter the Default Judgment upon the representation that the plaintiff had won the Supreme Court appeal, and was entitled to judgment in the amount of $150,000. Reed signed a Judgment by Default in favor of plaintiffs, and against State Farm in the amount of $150,000, plus $385.00 in costs. Notice of Entry of Judgment of [sic] served by Reed on the same day. Later on the same day, Reed reviewed the Supreme Court Order of April 10, and determined that plaintiffs may not have been entitled to default judgment. Reed then presented the matter of Judge Holmstrom, and upon review of the file, the Judge flagged the file with a note not to enter execution thereon until further order of the Court.
“ ‘5. Respondent gave no notice, written or oral, to State Farm or State Farm’s counsel, of his intention to obtain default judgment. State Farm’s counsel first learned of the purported default judgment upon receipt of the Notice of Entry of Judgment, mailed by the Clerk. On May 9, 1984, counsel for State Farm moved to set aside and vacate the Judgment by Default and to recover sanctions against respondent.
“ ‘6. Hearing on State Farm’s Motion was held before the Honorable Nat Allen, commencing June 1, 1984, and continuing on June 6, 7 and 8. On June 11, 1984, Judge Allen issued his Findings of Fact, Conclusions of Law, and Order, therein determining that the purported Default Judgment was void and should be set aside, and further determining that in obtaining the Default Judgment, respondent was guilty of deceiving the court and State Farm, in violation of Section 37-61-406, MCA. By said order, the Court ordered respondent to pay as sanctions to State Farm, treble the amount of reasonable attorney’s fees to be determined at a later hearing. Following the second hearing, Judge Allen, on July 31, 1984, ordered respondent to pay $4,031.50 to State Farm as sanctions.
“ ‘7. Respondent appealed Judge Allen’s order and judgment, and on April 9, 1985, Cause No. 84-526, the Montana Supreme Court, issued its opinion, affirming the lower court’s judgment which set aside the default and granted sanctions against respondent.
“ ‘8. The respondent, in his testimony before the Commission, gave an elaborate and extended explanation for not following Section 33-1-602, MCA, in service of process upon State Farm. That explanation involved respondent’s argument that Section 33-1-602 is an “antedated statute” which “had been intentionally repealed” by the 1962 enactment of the rules of Civil Procedure (Transcript pp. 19-21; and 39-48). The respondent’s testimony indicates that he was aware of the requirements -of 33-1-602, having extensively researched the matter, including inquiry into the Legislative history, but deliberately did not serve the Insurance Commissioner, upon the belief that the statute was not the law in Montana.
“ ‘9. Respondent stated that he interpreted Judge Wilson’s December 2, 1983, order to mean that not only was the return of service quashed, but the action itself was dismissed. In his words:
“ ‘1 took the position that the Motion to Dismiss was an improper hearing because the law in the State of Montana is that once default has been entered against a party, the relief of that party laboring under the default is a motion to set aside under Rule 56 [later corrected to rule 55], and not a motion to dismiss after the period of time for setting aside a default had run.‘ ’ ”
“It was upon that misinterpretation that he attempted to appeal the December 2 Order.
“10. Respondent stated that his immediate conclusion, upon receipt of the Supreme Court’s Order of April 10, dismissing the appeal, was that he would have to restart the lawsuit, but then he rationalized the order to mean something entirely different. From the fact that the appeal was dismissed ‘without prejudice,’ and remanded to the district court, respondent somehow interpreted that to mean that the Supreme Court thought he should obtain his default judgment so as to make the Supreme Court Order final (Transcript pp. 13-18).
“ ‘11. During the June 1984 hearing before Judge Allen on State Farm’s Motion to Set Aside the Default Judgment and grant sanctions against respondent, State Farm’s counsel, on two occasions, offered on the record to dismiss the motion to impose sanctions if respondent would stipulate to the default judgment being set aside. Respondent rejected these offers and chose to appeal Judge Allen’s Order and Judgment (Finding No. 19 of July 11, 1984, Order — Exhibit No. 3 to Transcript).
“ ‘12. Even after the final decision on this matter by the Supreme Court of April 9, 1985, respondent stated that he would not pay the sanction money ‘until all the possibilities of correcting this are exhausted within the law,’ indicating his intention to further litigate the matter in Federal District Court, because of an alleged violation of civil rights and on the ground that Section 33-1-602, MCA, violated the federal constitution (Transcript pp. 38-41).
“ T3. Prior to the hearing before the Commission, respondent reached an agreement with State Farm, whereby the sanctions were forgiven, and his clients’ underlying bad faith claim was settled (Transcript p. 66).
“ ‘From the foregoing, the Commission concludes as follows:
“ ‘CONCLUSIONS
“ T. Judge Wilson’s Order quashing Summons and the Supreme Court Order, dismissing the appeal, are both clear upon their face as to the intended meaning and effect. Respondent’s strained and illogical misinterpretations are difficult to justify. This is compounded by respondent’s persistent refusal — even to the time of the hearing before the Commission — to accept the obvious meaning of these orders.
“ ‘2. If respondent had not known or understood the import of Section 33-1-601, MCA, that a foreign insurer must be served through the Insurance Commission, it should have been apparent to him when the issue was raised by State Farm’s Motion to Quash, and certainly upon Judge Wilson’s December 2, 1983, ruling. At that point a reasonable and ethical practitioner would have taken the simple step of merely re-serving the the Summons and Complaint through the office of the Insurance Commissioner. Instead he chose to appeal. Respondent had several other opportunities to exercise reason. It should have occurred to him after his initial appeal was dismissed by the Supreme Court. Further, during the hearing on the Motion to Set Aside Default Judgment and for sanctions, State Farm’s counsel, on two occasions, offered to withdraw the request for sanctions if respondent would merely stipulate to set aside the ill-gotten and void Default Judgment. Again, when Judge Allen ruled on July 11, 1984, that his service of process was improper, and the Default Judgment was therefore, ‘null and void, and of no force and effect.’ respondent should have accepted the ruling (at least as to the process and Default Judgment issues) and gotten on with the merits of the lawsuit. Despite these repeated opportunities to act in a manner that the Commission feels a reasonable, competent and ethical lawyer should have acted, the respondent chose in each instance to pursue his senseless litigation.
“ ‘3. Respondent’s actions cannot be excused on the basis of zealous representation of his clients. Summons was served on State Farm’s local office on September 15, 1983. As of the time of respondent’s Answer to the Special Prosecutor’s Complaint, March 17, 1986, the sanctions were unpaid and proper service on the Insurance commissioner and stubbornly not been made (Pars. 23 and 26(c) of Complaint and Respondent’s Answer thereto). Respondent did not confront the merits of his clients’ lawsuit until a time after his Answer was filed in these proceedings, i.e., after May 1986, which was a delay of in excess of two and one-half years. Such a delay obviously was detrimental to the interests of respondent’s clients.
“ ‘4. There is clear and convincing evidence in this matter that respondent’s actions violated Canons of Professional Ethics, Canon I, Disciplinary Rule 1-102(A)(4), as alleged in Count I of the Complaint, which rule provides:
“ "A lawyer shall not . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.’
“(Paralleling Rule 8.4(c) of Rules of Professional Conduct, adopted effective July 1, 1985)
“ ‘5. There is clear and convincing evidence in this matter that respondent’s actions violated Canons of Professional Ethics, Canon I, Disciplinary Rule 7-102 (A) (2), as alleged in Count II of the Complaint, which rule provides:
“ "In his representation of a client, a lawyer shall not . . . knowingly advance a claim or defense that is unwarranted under existing law, except that he may advance such claim or defense if it can be supported by a good faith argument for an extension, modification or reversal of existing law.’
“ ‘(Paralleling Rule 3.1 of Rules of Professional Conduct)
“ ‘6. There is clear and convincing evidence in this matter that respondent’s actions violated Canons of Professional Ethics, Canon 7, Disciplinary Rule 7-102(A)(5), as alleged in Count III of the Complaint, which rule provides:
“ "In his representation of a client, a lawyer shall not . . . knowingly make a false statement of law or fact.’
“ ‘7. In regard to Count IV, it appears that respondent has voluntarily settled and satisfied the sanctions awarded to State Farm, and accordingly, the allegations of Count IV are deemed moot.
“ ‘8. The Commission considers that the remaining Counts of the Complaint, are dealt with in the Conclusions heretofore set forth.’ ”

We affirm the findings of fact of the Commission on Practice.

The following discipline is hereby imposed upon you, Gerald P. La-Fountain for your violation of the Canons of Professional Ethics and the Disciplinary rules adopted under those Canons as specifically hereinbefore set forth:

1. You are publicly censured by the Supreme Court of the State of Montana.

2. You are from the date of this order suspended from the practice of law in the State of Montana for a period of six months.

3. You are assessed and required to pay the costs of the proceedings before the Commission on Practice and this Court relating to this matter. Such costs shall be determined by the Commission on Practice, and the Secretary of the Commission shall furnish to this court and to Mr. LaFountain an appropriate statement of Commission costs. The costs thereupon shall become immediately payable by Mr. LaFountain.

We trust that the discipline imposed upon you will be sufficient to guide you in your future as a lawyer.


author: MR. JUSTICE SHEEHY

text:
    In re the MARRIAGE OF BONNIE JOY REVIOUS, Petitioner and Respondent, and ARLEY WAYNE REVIOUS, Respondent and Appellant.
    No. 86-199.
    Submitted on Briefs Feb. 13, 1987.
    Decided April 6, 1987.
    735 P.2d 301.

      Robert T. Cummins, Helena, for respondent and appellant.
    Peter Michael Meloy, Helena, for petitioner and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Arley Revious appeals from a February 19, 1986 order of the First Judicial District Court, Lewis and Clark County, that he. pay $150 per month in child support for each of four children and $400 per month until January 1987 in maintenance. Arley also appeals from the District Court’s order giving Bonnie authority to set reasonable visitation periods. We affirm.

The Reviouses were married on January 11, 1969. The marriage was dissolved by the First Judicial District Court by decree on July 31, 1984. At the hearing for dissolution the court reserved judgment on the issues of property distribution, custody, child support and maintenance. The court’s findings and conclusions on these matters were issued on September 30, 1985. Because Arley filed objection to the findings, final judgment was not entered until February 27, 1986.

The Reviouses have four children, three boys and one girl, born in the years between 1970 and 1977. The dissolution decree of July 31, 1984 ordered that the children live with their mother, until a hearing on custody (and the other reserved issues) could be had. Arley was granted visitation every Friday night and Saturday as well as “at any and all times and places and not less than one evening a week.”

The decree also ordered that Arley pay temporary child support of $100 per month per child. No temporary maintenance was awarded.

The final judgment of February 27, 1986 awarded joint custody to both parents, but gave Bonnie primary residential custody. The children were permitted to live with the father “at such times and places as the parties may agree,” but the decree provided that in the absence of agreement the mother was given discretion to determine visitation “on the basis of the best interests and reasonable desires of the children.” The court ruled that a specific visitation schedule was unnecessary.

The District Court used the formula in Carlson v. Carlson (Mont. 1984), [214 Mont. 209,] 693 P.2d 496, 41 St.Rep. 2419 to determine the amount of child support owed and concluded that $329 per child per month could be required. However, the court recognized that, in light of the actual state of Arley’s finances, $329 per month per child was unreasonable, and ordered the $150 per month per child be paid until January 1, 1987, with an increase to $200 per month per child after January 1, 1987.

The January 1 date is key because Arley was ordered to pay Bonnie $400 per month maintenance retroactive to August 1, 1984. These payments were to end January 1, 1987, when Bonnie was to have completed academic training as a paralegal.

At the time of the final hearing, Bonnie was earning approximately $3,500 per year as a bus driver and Arley was earning $37,000 a year as a Montana National Guard officer. The District Court found that Bonnie and the four children’s cost of living was about $1,800 per month. She received $127 each month in food stamps and had borrowed $2,300 from her parents to pay off bills incurred while married. Her job as a school bus driver (taken while attending school and raising the children) netted about $380 per month. She also was receiving temporary support from Arley of $400, making her total monthly income about $780. Arley’s cost of living was found to be $1,200 per month, excluding the $1,000 house payment and $400 per month paid as child support.

There is essentially no marital estate in real or personal property, and it is clear that the Revious’ liabilities equal or exceed their assets.

Issues

Arley raises three contentions on appeal. First, he argues that the District Court erred by not ordering a specific visitation schedule. Second, he believes the District Court erred in setting the amounts to be paid for child support and maintenance. Finally, he contends that the District Court erred when it made the increase in child support and maintenance retroactive to the date of dissolution.

Visitation

The original action in this matter, the petition for dissolution granted July 26, 1984, gave Bonnie temporary custody of the children and granted Arley “reasonable” visitation privileges. The order was not specific in establishing visitation other than to provide visitation for Arley at least one evening every other week and on Friday nights and Saturdays. Arley objected to this system of visitation, so the District Court, by order on August 31,1984 granted Arley visitation “at any and all times and places and not less than one evening during the week” and on Friday nights and Saturday every week. The August order also contained a warning to each party that they not denigrate each other in front of the children. Arley had accused Bonnie of turning the children against him.

On September 13,1984, after Bonnie and the children moved from Helena to Great Falls, the parties stipulated that Arley would have visitation every other weekend.

On September 30, 1985, the District Court issued its findings of fact and conclusions of law. The court affirmed its order of joint custody but gave primary residential custody to Bonnie:

“It should therefore be ordered that the residency of the children will be primarily with the mother, that the children shall be permitted to reside with the father at such times and places as the parties may agree, but that in the absence of agreement the mother may determine on the basis of the best interests and reasonable desires of the children. The Court should treat as contempt and punish therefore any attempt by either party to alienate the children from the other party, by residential requirements or demands, or otherwise.
“B. Joint custody being indicated ... no visitation need be decreed (40-4-217(1)), and it is not in the best interests of the children that it be so decreed.”

Arley argues that it was error for the court not to order specific visitation. The court was well aware, he asserts, of his claim that visitation with the children had not been satisfactory, and that Bonnie was intimidating the children into not visiting him.

This Court has long followed the rule that unless the findings of fact are clearly erroneous, the District Court’s decision will not be overturned on appeal. The appealing party must show, by clear error, that the record does not support the judgment of the District Court. In re the Marriage of Rolfe (Mont. 1985), [216 Mont. 39,] 699 P.2d 79, 42 St. Rep. 623 and Carlson v. Carlson (Mont. 1984), [214 Mont. 209,] 693 P.2d 496, 41 St.Rep. 2419.

Arley presented no evidence that Bonnie was refusing to cooperate in arranging visitation. Although it is clear from the record that most of the children were not interested in visiting their father, nothing indicates that their mother has done anything to discourage them from visiting with him. In fact, the record indicates that Arley made only feeble attempts to stay in touch with them, visiting irregularly and phoning only once every two weeks.

Arley’s arguments fail to overcome the presumption that the District Court’s order is correct. The District Court believed that joint custody was sufficient to insure visitation, and concluded that the best interests of the children would not be met by establishing a fixed visitation schedule. Based on the evidence presented, we are not justified in substituting our discretion for that of the trial court.

Child Support and Maintenance

Arley next argues that the District Court erred in setting the amounts to be paid for child support and maintenance. The amount of child support awarded was $150 per child per month until January 1, 1987, with an automatic increase to $200 per month per child after January 1. Arley was also ordered to pay Bonnie $400 per month maintenance until January 1, 1987. The increase in child support and the award of maintenance were made retroactive to August 1, 1984. Arley claims these awards were unjust because they failed to adequately consider his personal financial crisis.

The District Court made the following findings regarding the financial status of each of the parties. First, it noted that after 15 years of marriage the Reviouses had essentially no marital estate. Second, it noted that the family had seriously overspent their means, causing the family’s liabilities to exceed their assets. Third, Bonnie’s gross income as a busdriver in 1985 was $3,500. The living expenses for her and the children were approximately $1,800 a month. Fourth, Arley was earning a gross income of $37,000 a year as a Montana National Guard Officer. His living expenses, including child support payments of $400/month and house payments of $1000/month, were $2,670. Finally, Bonnie was moving toward financial independence by planning to complete a 2 year paralegal program in Great Falls and find employment by January 1, 1987.

The District Court applied the formula we adopted in Carlson v. Carlson (Mont. 1984), [214 Mont. 209,] 693 P.2d 496, 41 St.Rep. 2419 to determine the amount of child support each parent should pay. Under the terms of the formula, the District Court determined that Arley would be required to make a monthly contribution of $1,316 to support the children. This translated to $329 per month for each child. The Court did not hold Arley responsible for the whole amount, however, reasoning that the amount was unreasonable in light of Arley’s financial bind. Hence, the court concluded that Arley should pay $150 per month per child during the period of maintenance and $200 per month per child when his maintenance obligation ended.

Arley raises two objections to the use of the formula by the District Court. First, he complains that the court should have used his net income, rather than his gross income when applying the formula. Second, he asserts that the District Court erred in not taking into consideration his expenses as part of the formula.

The logic of the Carlson formula is that the financial needs of the children are paid in proportion to the parent’s earning capacity. The purpose of the formula is to provide a guideline to apportion the amount of child support each parent must pay. In determining the amount Arley Revious should pay, the District Court used the Carlson guideline, but used gross, rather than net income as a factor in the formula. Although we did not specify net income was the factor to be applied to the Carlson formula, we later ruled in Hansen v. Jurgens (Mont. 1986), [222 Mont. 345,] 722 P.2d 1151, 43 St.Rep. 1316 that the amount used in the formula should be a net amount. Nonetheless, in the instant case we find no abuse of discretion, because even if the court had applied the net income figure, the required child support would be approximately $280 per child per month. Therefore, the $150 and $200 a month figures established by the District Court are substantially less than what the Carlson formula could oblige Arley to pay. Hence although the District Court erred in its technical application of the Carlson guidelines, the error was harmless. The District Court’s award of the support was reasonable.

Arley’s second contention, that the District Court should have considered his expenses in applying the formula, is without support. It is obvious from even a cursory review of Carlson that the parents’ monthly expenses are not part of the formula. The formula is designed to insure that the children are supported by both the parents in proportion to the parents’ earning capacity. It is a guideline. Here, the District Court followed the guidelines, and even though Arley’s debt wasn’t a factor in the formula, tempered its judgment by considering Arley’s poor financial condition, stating “in view of the actual state of the husband’s finances . . . [$329 per month per child] would be an unreasonable amount for child support.” Hence, Arley’s second claim is meritless, as the court recognizes his debts and expenses, even though the guidelines of Carlson did not contain such a requirement.

Arley’s complaint about maintenance is on a parallel track with his complaints on child support. He believes the District Court did not adequately consider his ability to pay. We disagree.

The District Court made the following findings of fact in concluding that Bonnie should be awarded maintenance:

“5. At the time the petition in this action was filed, the husband was thirty-six years old and the wife was thirty-seven. Both were twenty-one when they were married in 1969 and both were high school graduates. During the first year of the marriage the wife worked as a key punch operator and during the last year of the marriage she worked in her father’s real estate office. Except for these two years she worked in the home as a full time housewife and parent throughout the course of the marriage and acquired no saleable occupational skills. Commencing in August of 1984, the wife entered para-legal training at College of Great Falls, scheduled to be completed in the summer of 1986, and she expects to be fully employed as a para-legal within six months thereafter. The husband entered full-time active duty with the National Guard in the second year of the marriage and served as such for the remainder of the marriage. For the first seven years of his active duty he was a recruiter and was “on the road” at least half the time. He is a captain with 14 years of service and is in good standing. The wife has received no assets from the marital estate which could be converted to cash or generate income. In addition to support for the children, the wife will require a minimum of $400 per month to support herself and her education program until such time as she becomes fully employed.”

The trial court is authorized under Section 40-4-203, MCA, to grant maintenance if it finds that spouse seeking maintenance:

“(l)(a) lacks sufficient property to provide for his reasonable needs; and
“(b) is unable to support himself through appropriate employment or is the custodian of the child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.”

Among the criteria for awarding maintenance, the trial court shall consider:

“(2)(a) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
“(b) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment:
“(c) the standard of living established during marriage;
“(d) the duration of the marriage;
“(e) the age and physical and emotional status 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.”

Section 40-4-203, MCA.

It is clear from the finding of fact set out above that the District Court examined each of the statutory elements before deciding to award maintenance. Arley presents no evidence indicating the trial court acted arbitrarily, without employment of conscientious judgment, or exceeded the bounds of reason resulting in substantial injustice. In re Marriage of Laster (Mont. 1982), [197 Mont. 470,] 643 P.2d 597, [39 St.Rep. 737]. The record clearly supports the order of the District Court.

As his final issue, Arley complains that the final order awarding child support and maintenance should not have been made retroactive to the date of dissolution. Arley asserts that Bonnie and the children “physically and economically lived” on the court ordered temporary child support of $400 a month. “Without any apparent adverse effect or imperative need.” This claim, as well as Arley’s assertion that he should be given custody if Bonnie couldn’t raise four children on $400 a month, shows that Arley is not cognizant of the financial realities of child-rearing. Arley’s inadequacies as manager of his own finances evidence this. He claims he’s going bankrupt on a salary of $37,000 a year, yet at the same time expects Bonnie to raise the four children on an annual income of $8,600 ($3,800 salary and $400 per month child support.)

After moving to Great Falls with the children, Bonnie attended school full time and worked as a bus driver. To make ends meet she became a food stamp recipient and borrowed from her parents. Arley’s assertion that Bonnie’s existence on social programs and parental charity evidenced no “imperative need” shatters the credibility of his claims that he is suffering financial hardship.

It was clearly within the District Court’s authority to make the maintenance and child support awards retroactive. The temporary order of child support issued in July of 1984 did not prejudice the rights of the parties or the children adjudicated at the later hearings. Section 40-4-121(7)(a), MCA. It was well within the District Court’s power, after hearing on the matter of child support and maintenance, to make the order retroactive. We see no abuse of discretion.

Affirmed.

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