Submitted on Briefs: March 13, 2013
District Court of the Nineteenth Judicial District, In and For the County of Lincoln, Cause No. DV-06-168 Honorable James B. Wheelis, Presiding Judge
For Appellant: Marybeth M. Sampsel; Measure, Sampsel, Sullivan & O'Brien, P.C.
For Appellee: S. Charles Sprinkle, Sprinkle Law Firm, PC
Beth Baker, Justice
¶1 Stanley G. Davis appeals an order entered by the Nineteenth Judicial District Court, Lincoln County, granting Terry Allen LeCount's motion for summary judgment. The District Court ordered that LeCount could foreclose on a child support lien created by the Child Support Enforcement Division (CSED) of the Department of Public Health and Human Services (DPHHS or the Department) and assigned to him by his ex-wife. The court ordered that a Sheriff's sale be conducted to satisfy the lien. We reverse.
¶2 The only issue on appeal is whether the District Court correctly ruled that LeCount could foreclose on the CSED support lien.
PROCEDURAL AND FACTUAL BACKGROUND
¶3 In April 1974, Christine and Stanley Davis were married. During the marriage, Christine gave birth to two children. In 1984, Christine and Stanley divorced and the District Court ordered Stanley to pay $175.00 per child to Christine each month for child support.
¶4 Stanley Davis (Davis) failed to make child support payments to Christine. By September 1996, Davis had accrued $44, 975.00 in past-due child support payments. Consequently, CSED placed a support lien on all of his property, pursuant to §§ 40-5-247 and -248, MCA (1995), and filed the lien with the Lincoln County Clerk and Recorder's Office on September 16, 1996. The lien specifically applied to forty-two acres of land Davis owns in Lincoln County. Although the lien itself does not mention Christine by name, it is not contested in this appeal that she had a right to the unpaid child support for which Davis was obligated.
¶5 Sometime after the Davises divorced, Christine married Terry Allen LeCount. Christine and Terry divorced in June 2006; in the final decree of dissolution, the District Court determined that the property settlement agreement drafted by Terry and Christine was conscionable and ordered the parties' assets and debts to be distributed according to its provisions. In accordance with that agreement, Christine assigned to Terry "all right, title, and interest in and to that certain Child Support Lien filed with the Lincoln County Clerk and Recorder . . . showing the obligor as Stanley G. Davis[.]" Christine's assignment was made in consideration of "certain obligations and payments" set out in her divorce proceedings with Terry. CSED was not a party to Christine and Terry's divorce.
¶6 In September 2006, Terry LeCount (LeCount) commenced a new proceeding against Davis in District Court seeking to foreclose on the CSED support lien. He also sought a writ of execution and an order that a sheriff's sale be conducted in satisfaction of the lien. LeCount filed an amended complaint, which was served on Davis in March 2007. Davis filed an answer requesting that LeCount's complaint be dismissed, in part, because in 1995 Christine ordered CSED to close her case. In June 2007, Davis filed a motion to dismiss the case on the ground that CSED had released its support lien on his property. Davis attached to the motion an exhibit demonstrating that, on May 29, 2007, CSED filed a "Release of Support Lien" with the Lincoln County Clerk and Recorder's Office releasing its support lien against the forty-two acres Davis owns in Lincoln County.
¶7 LeCount responded to Davis's motion to dismiss by arguing that the release was "invalid" because (1) it "simply relinquish[ed] any rights the State of Montana may have to that lien but does not release the underlying lien"; (2) the release "is probably void and of no force and effect"; and (3) Davis had waived the affirmative defense of release.
¶8 Two weeks later, LeCount supplemented his response by filing with the court a document in which Patrick Quinn of CSED assigned the Department's interest in the support lien to LeCount, who in turn argued that the assignment could only mean that the support lien "remains enforceable" in spite of the release that Davis previously had submitted. In the assignment document, Quinn wrote that the "State of Montana hereby assigns all right, title, and interest in and to ...