An Air Force serviceman and his
girlfriend had a child. He provided support while active duty voluntarily. His
support was enforced through a CSED order in 2004. In 2008, while he was still
active military and serving in Iraq, mom applied to CSED for a child support
increase. 5 months later when he was stateside on leave, he consented to the
increase. CSED made the award retroactive and provided the retroactive portion
be paid over a 24 month period as provided in Section 40-5-309 M.C.A.
CSED sent him notice that they
would report his arrearage as a bad debt and delinquent, then did so. The
labels “bad debt” and “delinquent” on his credit report barred him employment
with government entities including the Department of Homeland Security and the
Seattle Police Department. He sued in State District Court. The Montana Supreme
Court found that a child support arrearage is not a delinquency and is not
a bad debt. But the serviceman had failed to exhaust administrative remedies to
challenge CSED’s characterization of the retroactive portion of the award, so
the Court upheld the dismissal of his lawsuit on procedural grounds.
While upholding the dismissal,
the Court was very critical of CSED for not helping the serviceman understand
his possible remedies – even though they were not required under the law to do
so.
Ҧ 35 While being bound by statutory and procedural bars to
reach the conclusions we do, we recognize the resulting injustice. A
servicemember who has both an exemplary record in the military and an exemplary
record in his payment of child support has been branded a “delinquent” obligor
in the eyes of potential employers. Consequently, he has lost significant
career opportunities—opportunities that would have benefited his child as well
as himself. It appears that CSED had opportunities to help Kenck understand and
protect his rights but did not do so. For example, CSED could have implemented §
40–5–262(3), MCA, allowing it to consider Kenck’s payment record, the
availability of other remedies and other matters relevant to determining
whether to release the administrative arrearage information to the credit reporting
agencies. There is no evidence that it considered this discretionary
opportunity.
¶ 36 Moreover, Kenck visited the Billings CSED
office within days of being discharged from the USAF, contesting the
characterization of his child support account as delinquent and the reporting
of his arrearage to the consumer reporting companies in the first place. It
does not appear that CSED assisted Kenck in understanding what steps he could
take to challenge the inaccurate report, nor did it advise him that such
actions must be taken within 90 days of his discharge.”
The Court took the extraordinary action of directing the
district court to order CSED to give notice of the opinion to the credit
reporting agencies and monitor CSED’s compliance.
