Document Type

Article

Publication Date

6-29-1992

1) Whether the trial Court and Court of Appeals erred in providing a modification of custody where the Respondent had not filed a Petition for Modification of custody and where there was no proof that would support a modification? The Court determined that under the Blackfeet Tribal code, all divorces, including child custody and support, must be consummated with Montana State Law and abide by those standards, unless some specific provision of the tribal code requires otherwise. However, since the sole remaining minor, in this case, was over the age of fourteen, at the time of this hearing, and had voluntarily decided to live with his mother, the Court will not overrule the Tribal Court on the child custody issue.

2) Whether the Trial Court and Court of Appeals erred in granting a change in the amount of child support where no Motion of Petition for change in the amount of support had been filed? The Court determined that child support cannot be applied retroactively except as modified to the last hearing. The Court ruled that the Trial court had insufficient evidence to base a specific increase in the husband’s child support obligation. The Court notes that the Tribe will use the Montana state standard for determining child support, located in Montana Code Annotated 40-4-204 and the Uniform Child Support Guidelines unless, by clear and convincing standard evidence, the application of these standards and guidelines are unjust or inappropriate in this particular case.

3) Whether the Trial Court and the Court of Appeals erred in retroactive modification of the child support, assuming the issue of child support was properly before the Court? The Court determined that there would be no retroactive modification of child support prior to the Oct. 30, 1990 hearing. The Court cites Montana Code Annotated 40-4-208, stating child support may be modified as to installments occurring subsequent to a party’s motion for modification. The Appropriate date for modification shall be the date of the hearing.

4) Whether the Trial Court and Court of Appeals erred in ordering the Petitioner to pay one-half of the College expenses of one of the children of the marriage, where the child is over eighteen years of age and there was no prior agreement to pay said expenses? The Court cites Montana State Law in holding that absent any express agreement, a parent in a marriage dissolution proceeding is not required to pay a child’s college expenses. No such duty can be imposed in a dissolution proceeding. Montana Code Annotated 40-4-208(5)

5) Whether the Court of Appeals erred by retaining jurisdiction over one of the minor children of the marriage after that child reaches the age of eighteen (18) years, where the child has not been made a ward of the Court or otherwise determined to be incompetent? The Court incorporates Montana Code Annotated 40-4-208(5), disallowing extended jurisdiction over children who have reached the age of majority or graduated high school (whichever happens later). The Court cannot hold a husband to any greater responsibility for a child than what is allowed by law.

6) Whether the Trial Court and Court of Appeals erred in ordering the sale and or distribution of assets of the marital estate, where the assets in question were governed by a Marital Property Settlement without having determined the Agreement to be unconscionable and without a formal Petition or Motion filed by the Respondent asking the Property Settlement Agreement to be set aside or be otherwise modified? The Court determined that the parties agreement to the distribution and sale of property be reformed to accomplish the expressed intentions of the parties, to sever the economic connections between the parties. The Court will not disturb the terms of the agreement, unless alleged to be unconscionable, except to impose time limits for the sale of the properties to facilitate economic severance. The Court laid standards to facilitate the sale at fair market value.

7) Whether the Tribal Courts have jurisdiction to order the transfer of tribal trust land to non-members of the Tribe without the approval of the Bureau of Indian Affairs or the Blackfeet Tribe? The Court rejected the husband’s argument because the Agreement stipulated that in the event the lake property was sold, the Wife shall have the right to first refusal, granting the wife such power to be transferred trust land. A party cannot properly object to the terms of their own agreement.

8) Whether the Trial Court and the Court of Appeals erred in ordering the Petitioner to pay for extraordinary expenses associated with one of the children's graduations from High School? The Court ruled that the husband should not be required to pay half the extraordinary expenses associated with the child’s High School graduation and that the Husband’s child support level was already in accordance with the uniform Child Support Guidelines. His pay is proper and adequate and he should not be required to pay for such incidentals.

9) Whether the Trial Court and Court of Appeals erred in the computation of the amount of rental income which the Petitioner allegedly owed to the Respondent? The Court distilled the husband’s argument to “the wife’s share should be reduced by any costs husband has incurred in connection with the rental of the Browning property.” The Court reasoned that if the Husband had informed the Wife from the very beginning that he was receiving financial benefit from his sister's use of the property, his argument would have merit. However, since he kept that secret for years, under equity, he lost the right to seek an adjustment. The Court upheld the lower Court’s determination.

10) Whether the Petitioner's right to due process of law was violated by Trial Court's action in reopening the entire dissolution proceeding without having first required the Respondent to file the appropriate Petitions and/or Motions for modification of the existing custody, Support and Property Settlement Agreement and without having first found grounds for the reopening of the various dissolution issues? The Court previously addressed this issue above.

The Court additionally ordered those costs associated with this proceeding be charged to the Husband because it was his appeal. The Court strongly encouraged parties to settle their disputes without Court but also encouraged the lower courts to apply any further costs of proceedings to whichever party is found to be acting unreasonably.

Cobell v. Cobell-Magee, 91-SC-01 (Blkft. Sup. Ct., June 29, 1992)

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