No. 80-408
I N T E SUPREME COURT O THE STATE O M N A A
H F F OTN
1981
I N RE THE MARRIAGE OF
V I R G I N I A LOUISE KNOWLTON,
P e t i t i o n e r and A p p e l l a n t ,
-vs-
OA G L K O LO ,
R AE N WT W
Respondent and Respondent.
Appeal from: D i s t r i c t C o u r t o f t h e Second J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f S i l v e r Bow, The H o n o r a b l e
J a m e s D. F r e e b o u r n , J u d g e p r e s i d i n g .
Counsel o f Record:
For Appellant:
W. D. Murray, J r . , B u t t e , Montana
F o r Respondent :
Dunlap & C a u g h l i n , B u t t e , Montana
Submitted on B r i e f s : Ffarch 2 6 , 1981
~ e c i d e d ; August 1.1, 1981
Filed: AuG 11 flW
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
Virginia Knowlton (the mother) appeals from an order of
the Silver Bow County District Court dismissing contempt
proceedings against Ora Gale Knowlton (the father) and from
an order changing custody of two of their five children from
the mother to the father.
The parties were divorced in 1978. The support agreement
merged with the decree, provided among other things, that
the father would provide the wife and children "with two
full beef cattle per year for the use of the family." The
father was also to have the beef cut, wrapped and delivered
to the mother's residence. This proceeding started because
the father failed to provide the two beef per year as required
by the decree. The mother filed an affidavit alleging the
father's failure to provide the beef together with a motion
asking that the father be held in contempt of court.
The father countered by asking for custody of two of
the children. A daughter, age 15, lived with him during the
summer of 1979, and all of the f o l l o w i ~year, with the
~
mother's acquiescence. A son, age 13, lived with the father
during the summer of 1980, and apparently desired to continue
to live with the father. Only the attorneys signed the
father's pleadings, which recite no evidentiary facts, only
bald conclusions.
The father failed to comply with section 40-4-220(1),
MCA, which requires that the party seeking modification of a
custody decree:
". . . shall submit, together with his moving
papers, an affidavit setting forth facts
supporting the requested order or modification
and shall give notice, together with a copy
of his affidavit, to other parties to the proceeding,
who may file opposing affidavits . . ."
In no uncertain terms, this same statute sets out the duty
of the District Court if the affidavit fails to establish on
its face a basis for holding a hearing:
".. . The court shall deny the motion unless
it finds that adequate cause for hearing the
motion is established by the affidavits, in
which case it shall set a date for hearing on
an order to show cause why the requested order
or modification should not be granted." Section
40-4-220 (I), MCA.
Both parties and the trial court ignored this statute
and a hearing was held on the merits. In broad, conclusory
findings, the trial court found that a basis was made to
change custody, and therefore granted custody of the 15 year
old girl and the 13 year old boy to the father. Because the
parties and the trial court failed to abide by section 40-4-
220(1), and even though this issue was not raised on appeal
by either party, we have no alternative but to set aside the
order granting modification of custody. Based on section
40-4-220(1), there was no basis set out by which the trial
court could proceed to a hearing on the merits.
The question of beef support, however, presents a
different problem. The father admits he did not furnish
the beef as provided for in the decree. He alleged, however,
that when asking for custody of two of the children, that
the beef support decree be modified to reflect the changed
circumstances if he should get custody--that is, the mother
would not need as much beef for three children as she would
for all five children. To this proposition, the mother
responded by asking that the beef support decree be modified
by converting it into a decree providing for additional
monetary support for the children. The mother also suggested
a formula for the conversion.
The trial court dismissed the contempt proceedings, and
also in effect ruled that the father did not have to make up
the past beef support arrearages. Although we do not here
address the mother's contention that the trial court should
have found the father in contempt for failure to provide the
beef supports, we do hold that the trial court had no right
to excuse the father from his accrued beef support obligations.
In Williams v. Budke (1980), Mont . , 606 P.2d 515,
37 St.Rep. 228, we held, among other things, that district
courts cannot modify a delinquent child support obligation
(606 P.2d 518-519). That obligation, therefore, is still owed.
We do not view beef support obligations different than we
view child support obligations. Therefore, the trial court
must enter an order compelling the father to comply with the
accrued beef support obligations.
The father argued he couldn't comply with the decree that
he was to provide the family with two beef per year. If
it is so, then we suggest that an appropriate action is to
require the father to provide his family with additional
money equal to the price of the beef he failed to provide.
We again refer to the child custody modification proceedings.
Time and again, we have urged counsel to observe the statutory
procedures involved. Because of the failure here, all
concerned suffer--except counsel.
Because of the fact that the father has now had custody
of the girl for two years and the boy for one year, circumstances
may justify a change in custody. If those circumstances
exist, the trial court's jurisdiction to hear a request for
modification of custody is contingent upon the filing of a
properly verified petition to modify custody, setting out
the evidentiary facts required to move the trial court's
discretion. See, section 40-4-220(1), MCA, supra. We
cannot condone the inadequate procedures used at the trial
court level when the result is to have the case dumped on
this Court in such a procedural mess that we cannot reach
the issues on the merits. The long-term effects certainly
hurt the public, but the short-term effects always hurt the
parties. That is unfair, and they should not have to suffer
because of the errors of counsel.
We suggest in this case, therefore, that in future
proceedings, counsel for both sides do not charge their
clients for the services rendered. If they do, it means
only that the parties must pay double for services rendered:
first, for the initial proceedings; and, second, for the
proceedings necessitated because of the errors of counsel.
The order is vacated and this cause is remanded for
proceedings consistent with this opinion.
We concuj:
Justices /