LeCount v. Davis

LeCount v. Davis, 2013 MT 157 (June 18, 2013) (5-0) (Baker, J.)

Issue: Whether the district court correctly held that LeCount could foreclose on a child support lien created by the Child Support Enforcement Division.

Short Answer: No.



Facts: When Christine and Stanley Davis divorced in 1984, Stanley was ordered to pay $175 per child to Christine each month for child support. He did not. By 1996, he had accrued $44,975 in past-due child support payments. CSED placed a support lien on all of his property and filed the lien in Lincoln County in 1996. It specifically applied to 42 acres Davis owns in Lincoln County. Although Christine is not mentioned by name, it is undisputed that she had a right to the unpaid child support for which Davis was obligated.

Christine eventually married Terry LeCount; they divorced in 2006. In their property settlement, approved by the court, Christine assigned to Terry her interest in the CSED lien to Terry. CSED was not a party to the dissolution.

In September 2006, Terry filed suit to foreclose on the CSED lien. Davis moved to dismiss, attaching a release of the support lien filed by CSED with the Lincoln County Clerk and Recorder in May 2007.

In July 2007, Patrick Quinn of CSED assigned the department’s interest in the support lien to LeCount. The assignment cautioned that the state made no warranty or guarantee that it possessed an assignable interest, but said that if it did, it was assigned to LeCount.

Procedural Posture & Holding: The district court converted Davis’s motion to dismiss into a motion for summary judgment. LeCount filed a cross-motion, and both parties waived oral argument. The court took no action for nearly five years. LeCount filed a motion in May 2012 asking the court to grant his summary judgment motion and issue a writ of execution. By then, a new district judge had assumed office. Five days after LeCount filed his motion, the district court granted it. Davis filed a response the following day, but it was not considered by the district court. Davis appeals, and the Supreme Court reverses.

Reasoning: Support liens apply to all personal and real property owned by the obligor that can be located in Montana, and all property later acquired, up to the amount of the underlying obligation. § 40-5-248, MCA. They remain in effect until the delinquency is satisfied or the applicable statute of limitations expires. Id. The governing statutes grant exclusive authority to the Department of Public Health and Human Services to foreclose child support liens; the obligee may not foreclose the lien, even though the obligee may be entitled to the underlying obligation.