In Re Marriage of Clapsaddle, 2009 MT 91N decided March 24, 2009, concerns the limits of withholding. These two pro se parents had 2 children, one of whom was a disabled adult. The trial court granted mom’s motion to withhold child support from dad’s income. Dad had past due support. The trial court imposed a child support withholding order. The amount withheld was limited by the court relying upon 40-5-309(3). Mom argued they should have applied 40-5-416 to establish limits on withholding. The Supreme court affirmed the trial court’s reliance on 40-5-309 saying that was a statute for courts and 40-5-416 was limited to actions before the Montana Child Support Enforcement Division (CSED).
The more interesting thing about the case, however, was that the child support for 2 children included support for a child who was an adult but disabled. Neither parent raised child support for an adult as an issue.
The term “”child”" is not defined in our basic child support statute, 40-4-204 MCA. However, the term is defined in 40-5-201 (2) which reads:
(2) (a) “”Child”" means:
(i) a person under 18 years of age who is not otherwise emancipated, self-supporting, married, or a member of the armed forces of the United States;
(ii) a person under 19 years of age and still in high school;
(iii) a person who is mentally or physically incapacitated if the incapacity began prior to the person’s 18th birthday; or
(iv) in a IV-D case, a person for whom:
(A) support rights are assigned under 53-2-613;
(B) a public assistance payment has been made;
(C) the department is providing support enforcement services under 40-5-203; or
(D) the department has received a referral for IV-D services from an agency of another state or an Indian tribe under the provisions of the Uniform Interstate Family Support Act, the Revised Uniform Reciprocal Enforcement of Support Act, the Uniform Reciprocal Enforcement of Support Act, or Title IV-D of the Social Security Act.
(b) The term may not be construed to limit the ability of the department to enforce a support order according to its terms when the order provides for support to extend beyond the child’s 18th birthday. ”
Typically we think of the term of child support being limited to the 19th birthday of a child if they are still enrolled in high school, relying on the support modification provisions of 40-4-208(5). But you might consider longer term child support if you encounter a case involving a disabled child.
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