No. 81-21
I N THE SUPREME COURT O TBE STATE O MONTANA
F F
1981
GLEN M. NICOLAI,
P e t i t i o n e r and A p p e l l a n t ,
-VS-
WENDY S . NICOLAI,
Respondent and Respondent.
Appeal from: D i s t r i c t Court o f t h e Eighth 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 C a s c a d e , The H o n o r a b l e
Joel G. R o t h , J u d g e p r e s i d i n g .
Counsel o f Record:
For Appellant:
Murphy & C u r t i s , C h o t e a u , Montana
For Respondent:
P e d e r s e n , Herndon, H a r p e r & Munro, B i l l i n g s , P~Iontana
Submitted on B r i e f s : May 1, 1 9 8 1
Decided: July 1 6 , 1981
Filed;
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
This is an appeal by the husband, Glen Nicolai, from an
order of the District Court, Eighth District, Cascade County,
awarding the former wife, Wendy S. Nicolai, an increase in
child support payments for each of two minor children from
the $125 originally decreed, to $175 per month.
The parties were married on September 12, 1964,in Great
Falls, Montana. Two children were born as issue of the
marriage, namely, Paul J., now 14 years old and Christine
M e I now 12 years old. A decree of divorce was granted the
husband on October 25, 1973. The decree incorporated a
property settlement agreement which included among its
provisions child support for each minor child at the rate of
$100 per month until February 1, 1974, and thereafter the
sum of $125 per month. The custody of the children was
given to Wendy.
Wendy retained the legal and physical custody of the
two minor children from the divorce until March 1, 1975,and
Glen paid the child support payments during that time. On
March 1, 1975, by an agreement never made formal by a modification
of the divorce decree, Glen got physical custody of the
minor children. On June 7, 1980, the two children returned
to Billings to live with Wendy. The change of physical
custody was originally intended to be a summer visit by the
children with their mother. Glen first learned that the
children intended to remain permanently with Wendy when she
filed her motion to increase the child support on August 8,
1980. Between March 1, 1973 and June 7, 1980, Glen provided
all the support for the two children.
Glen does not dispute the physical custody of the
children now with Wendy so the District Court made no
modification of the original decree. It simply maintained
its original decree that physical custody be with the mother.
The sole issue for determination on this appeal is the
propriety of the increased amounts of child support ordered
by the District Court in modifying the original divorce
decree.
The issues raised by Glen on appeal are that the District
Court should have granted his motion to dismiss the proceedings
to modify the decree at the close of Wendy's case; and, that
it was an abuse of discretion of the District Court to
increase the child support payments because of a lack of
substantial evidence supporting such modification.
Wendy was the only witness called in her case in chief.
At the close of her testimony, her counsel rested. Glen's
counsel made a motion under Rule 41(b), M.R.Civ.P., for
dismissal upon the ground that Wendy had failed to make a
showing of changed circumstances so substantial and continuing
as to make the terms of the child support previously granted
unconscionable. Section 40-4-208 (2)(b)(i), MCA. After an
extended discussion between the court and counsel as to the
merits of the motion, the court denied Glen's motion for
dismissal. On appeal, Glen contends that his motion should
have been granted by the District Court.
The duty of the District Court, when faced with a
motion for dismissal on grounds that upon the facts proved,
Wendy had shown no right to relief, appears to be permissive.
(". . . The court as trier of the facts may then determine
them and render judgment against the plaintiff or may decline
to render any judgment until the close of all the evidence
. . ." Rule 41 (b), M.R.Civ.P.) In any event, the denial by
a district judge of a motion under Rule 41(b) at the close
of the first party's evidence is not reviewable on appeal if,
instead of relying on his motion, the movant goes on to
present evidence. In Wealden Corporation v. Schwey (5th
Cir. 1973), 482 F.2d 550, 552, the Court stated:
"If defendants wished to challenge this decision,
their avenue for doing so was to refuse to
offer their evidence, accept a judgment for
plaintiffs, and appeal it on the ground that
plaintiffs' evidence was insufficient. Instead
they chose to proceed to their case and offer
evidence, waiving the right to appeal any error
in the trial court's overruling of their 41(b)
motion. "
In this case, Glen, after denial of his Rule 41(b) motion,
proceeded to offer evidence in his case in chief. He thereby
waived any right of appeal as to the denial of his motion to
dismiss.
The remaining issue is whether there exists substantial
evidence in the record to support the increased child support
payments ordered by the District Court. Glen's argument on
this issue is four-fold: 1) the evidence did not develop
the "baseline" of circumstances of the parties at the time
of the original decree in full; 2) errors and speculation
exist in the court's calculation of the current circumstances
the parties; specific needs of the children for
increased support are found; and, 4) the court's findings
with respect to Glen's financial condition are at variance
with the court's finding of an increased ability on the part
of Glen to pay. On those four factors, Glen claims an abuse
of discretion.
The record, viewed in a light most favorable to Wendy,
shows these facts:
Wendy is presently unmarried and resides in a Billings
rental unit. She has been employed as a manager of Lomas
and Nettleton since January 2, 1979. From 1975 (there is no
evidence of her earnings in 1974) until 1980, her earnings
increased, somewhat arithmetically, from $4,171.61 to a
gross earning of $10,788.10 in 1979 and an anticipated
$11,200 in 1980. She has had custody of the children since
June 7, 1980, and from that time until the time of the
trial, her exhibits showed monthly expenses of $828 and
total monthly payments on long-term debts and charge accounts
of $278. Her total monthly expenditures, therefore, were
approximately $1,106 and her take home monthly salary at
that time was $752, leaving a monthly deficit of approximately
$354.
Glen did not pay any child support to Wendy during the
time she had custody of the children prior to the trial.
Wendy received cash gifts from her parents to support herself
and her children of between $700 and $800, and a loan of
$1,500 from her brother to acquire furniture, clothes, and
other items. Her rental payment for the duplex in which she
lives is $295 per month.
Glen is a certified public accountant residing in
Great Falls who remarried shortly after the divorce decree
was granted. His present wife has two children from a prior
marriage. Glen is self-employed, and has one employee, plus
his wife, who works fulltime for him as a secretary without
pay. At the time of the divorce in 1973, Glen was earning
approximately $800 per month net. No evidence was presented
either by Glen or by Wendy as to his earnings from 1974
through 1978. His 1979 income was approximately $1,333 per month
net and his estimated 1980 income was $1,500 net per month.
He has an equity in his Great Falls family residence of
$14,000 and has applied for a Small Business Administration
- 5-
loan of $29,000 with which he will consolidate debts and
expand his business.
During the time that Glen had custody of the children,
Wendy suffered from alcoholism, for which she was treated in
Billings in 1977. Since that time, she has had nothing to
drink. One of the factors in allowing Glen to have custody
of the children in 1975, without a formal modification of
the divorce decree, was the fact that Glen had remarried and
could better provide for them at the time.
It is substantially upon this record that the court
concluded that the expenses of providing for the needs of
the two children have increased substantially since the time
of the divorce in October 1973, and that expenses will
continue to increase. The court also found that the income
of the husband had increased substantially since the parties'
divorce in 1973. The District Court made no mention of the
apparent increase in Wendy's income, but found as a matter
of fact that her income was completely eaten up by her
expenses in reassuming custody of the children and that she
was running at a deficit of $354 per month. The court found
that the terms of the original decree relating to the amount
of child support were unconscionable under the circumstances
and granted the increase of $50 per month for each of the
children, entitling the mother to receive $175 for each
child until they reach majority age. See, Green v. Green
(1978), 176 Mont. 532, 539, 579 P.2d 1235, 1239.
The facts are close, but when so, there are appellate
rules which bind us. Findings of a District Court may not
be set aside unless they are clearly erroneous. Rule 52(a),
M.R.Civ.P. We said in Cameron v. Cameron (1978), Mont.
,
- 587 P.2d 939, 945, 35 St.Rep. 1723, 1729:
"We will not substitute our judgment for
that of the trier of fact, but rather will
only consider whether substantial credible
evidence supports the findings and conclusions.
Those findings will not be overturned by
this Court unless there is a clear preponderance
of the evidence against them. We will view
the evidence in a light most favorable to the
prevailing party, recognizing that substantial
evidence may be weak or conflicting with other
evidence, yet still support the findings."
Because substantial credible evidence, though perhaps
conflicting, exists here, and because we do not find that
the District Court was clearly erroneous in awarding the
increased child support payments, we affirm the judgment.
Justice
We Concur:
Ghief Justice