No. 14556
IN THE SUPRE-ME COURT OF THE STATE OF MONTANA
1980
JANICE LYNN GALL,
Plaintiff and Appellant,
VS.
STEPHEN THOMAS GALL, -
Defendant and Respondent.
Appeal from: District Court of the Fifth Judicial District,
Honorable Frank E.Blair, Judge presiding.
Counsel of Record:
For Appellant:
Daniel R. Sweeney argued, Butte, Montana
For Respondent :
Berg, Angel, Andriolo and Morgan, Bozeman, Montana
Gig Tollefsen argued, Bozeman, Montana
Submitted: January 18, 1980
AFR 2-I$;@
- - Decided:
Filed:
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
The wife appeals from an order of the Beaverhead
County District Court modifying the visitation provisions
and child support provisions of the original dissolution
decree.
The wife contends that the court had no jurisdiction
to change visitation rights because the husband failed to
file affidavits in support of his petition. Furthermore,
she contends that the trial court abused its discretion
in reducing child support payments from $150 to $100 per
month. We conclude that the trial court properly modified
the child visitation rights. On the other hand, we deter-
mine that the trial court did not enter appropriate findings
on the issue of child support and also that it failed to
comply with the standard set forth in section 40-4-208,
MCA. We therefore must remand the child support issue to
the District Court.
On May 15, 1978, the husband filed a petition to
modify the original dissolution decree. He sought a change
in visitation privileges, and also a reduction of monthly
child support payments from $150 to $75. On June 6, 1978
the wife filed a motion to dismiss contending that the
husband had failed to file supporting affidavits and had
improperly served the petition to modify in the form of
a summons. On August 22, 1978, a hearing was held and the
trial court denied the wife's motion to dismiss but entered
no order. On September 5, 1978, the trial court simply
filed a memorandum denying the request, and filed no order.
The wife appealed from this memorandum and we dismissed
without prejudice for the reason that no final order had
been entered. Later, the trial court entered findings of
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fact and conclusions of law and adopted the memorandum
by reference. On July 17, 1979, the trial court entered
an order which incorporated those findings and conclusions.
By its order the trial court modified the original
dissolution decree by reducing the child support payments
from $150 to $100 per month and requiring the husband to
pay an additional $25 each month until all of the delinquent
child support payments were paid in full. The trial court
also restricted the husband's visitation privileges by allow-
ing the husband to take the child to his parents' ranch
once every two months. This appeal followed.
The wife contends now that in the absence of supporting
affidavits, the trial court had no jurisdiction to enter-
tain a motion to modify the child custody provisions.
Furthermore, she contends that the trial court should not
have reduced the child support payments.
It is clear, however, that the trial court had juris-
diction to modify visitation. Section 40-4-220, MCA, upon
which the wife relies, requires that appropriate supporting
affidavits be filed when a change of custody is sought.
See Olson v. Olson (1978), 175 Mont. 444, 574 P.2d 1004.
Thus the wife's reliance on Olson is misplaced. Here, the
husband sought a change of visitation rights and section
40-4-217, MCA, is controlling. This statute does not
require supporting affidavits. See Lee v. Gebhardt (19771,
173 Mont. 305, 567 P.2d 466; Solie v. Solie (1977), 172
Mont. 132, 561 P.2d 443. Under section 40-4-217(3), MCA,
the trial court may modify visitation rights whenever mod-
ification would serve the best interest of the child.
Accordingly, it was not error for the trial court to
modify the visitation rights of the husband.
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Neither the wife, in contending that the child
support payments should not have been reduced, nor the
husband in contending that they were properly reduced, have
cited the controlling statute to this Court, section 40-4-
208, MCA. Under this statute, the trial court may modify
child support payments only upon a showing of changed
circumstances so substantial and continuing as to make the
terms unconscionable, or upon written consent of the parties.
See Gianotti v. McCracken (1977), 174 Mont. 209, 569 P.2d
929. Since the parties did not consent to the child support
modification, the essential requirement is that there be
an evidentiary basis to determine that it would be uncon-
scionable to continue the child support payments presently
in effect.
Here, there are virtually no findings at all on this
issue, let alone a determination that enforcement of the
present child support payments would be unconscionable.
The only findings are to the effect that the circumstances
changed by reason of the wife's remarriage to another person.
Even though the record is replete with evidence as to the
financial condition of each party, the trial court made no
specific findings as to the wife's increased ability to
support the child or the husband's decreased ability to pay
the $150 per month for child support. In the absence of
findings we cannot review the propriety of the trial court's
decision.
It appears that the trial court's decision turned on
the conclusion that the wife had since remarried and that
although she was having difficulties in her new marriage,
nonetheless the new husband had an obligation to provide
her with a home. The trial court simply assumed that the
wife's marital problems would be resolved. But the conditions
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and circumstances of the parties must be examined and
determined at the time o f t h e modification hearing, and
may not be based upon mere speculative future conditions
or possible conditions. See Scott v. Scott (1979), 121
Ariz. 492, 591 P.2d 980; In Re Marriage of Cobb (1977),
68 Cal.App.3d 855, 137 Cal.Rptr. 670. Here the trial
court's findings as to the wife's marital status and
relationship with her second husband are improperly based
upon assumptions and speculation. Furthermore, they fail
to satisfy the standard contained in section 40-4-208, MCA,
that the changed circumstances must be so substantial and
continuing as to make the terms of the original decree
unconscionable.
The order changing the visitation rights is upheld.
But without the required findings on the issue of modi-
fication of child support, we decline to rule on this
issue. Because circumstances may have changed since this
appeal was undertaken, this cause is remanded for another
evidentiary hearing and the trial court is further instructed
to enter the required findings of fact and conclusions of
law in support of whatever judgment it reaches.
This cause is remanded to the District Court.
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&
Justice
We Concur: