NO. 50-386
I N THE SUPREME COURT O THE STATE OF M N A A
F OTN
1981
R N L F. DUFFEY,
O AD
P l a i n t i f f and Appellant,
-vs-
HARRIET DUFFEY,
Defendant and Respondent.
Appeal from: District Court of t h e F i f t h J u d i c i a l D i s t r i c t ,
I n a n d f o r t h e County o f J e f f e r s o n .
The H o n o r a b l e F r a n k E . B l a i r , J u d g e p r e s i d i n g .
Counsel o f Record:
For Appellant:
H u l l a n d S h e r l o c k , H e l e n a , blontana
For Respondent:
R. Thomas G a r r i s o n , V i r g i n i a C i t y , Montana
Submitted on B r i e f s : March 4 , 1981
Decided : -&L 16 1981
Filed: JM16 1988
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
Ronald Duffey (the father) appeals from the judgment of
the Jefferson County District Court denying his petition for
modification of custody and granting the counterclaim of his
ex-wife, Harriet Duffey (the mother) for increased child
support, attorney's fees, and modification of the visitation
rights.
The father claims that the trial court erred in increasing
the amount of child support payments because it relied on
the income of his present wife in increasing the award, and
because the trial court speculated that the father's Social
Security benefits would be increased in the future (the
father is disabled and receives disability benefits including
benefits for his children). He also claims that the trial
court erred in granting the wife's attorney's fees and to
reimburse the wife for her court costs. The father also
claims that the court erred by modifying the visitation
order to let him take the children one weekend a month
rather than at least two Saturdays each month.
After the father had filed his petition to modify
custody, at least five months went by before the matter was
set for hearing. The mother did not file her response and
counterclaim until the day of the hearing, in fact, she did
so while the hearing was taking place. At the conclusion of
the hearing, the court gave each party 15 days to submit
proposed findings and conclusions. The father submitted his
on time, but the mother obtained an ex parte extension from
the court and filed hers at a later time. The father claims
that the court should have granted his motion to strike the
mother's response and counterclaim, and that the court erred
in giving her an extension to file her proposed findings and
conclusions.
The parties were divorced in 1972 and both have remarried.
They have previously litigated questions of child custody
and child support. The father filed his last petition in
November 1979, to obtain custody of the three children, and
that petition was heard in May. At no time during the
time the petition was filed and the hearing did the father
take any action to compel the mother to file her response.
We must remand this cause for another hearing because
it is clear that the trial court based its order for increased
child support on improper considerations. First, in a
memorandum accompanying the findings and conclusions, the
trial court clearly implies that it considered the income of
the father's present wife in its determination of the father's
ability to pay increased child support. The implication is
that since the wife was bound to support her disabled husband,
that more of his income was therefore freed to support his
children by a previous marriage. But section 40-6-217, MCA,
states that "[A] married person is not bound to support his
spouse's children by a former marriage . . ." and section
40-2-208, MCA, provides that "the property of a married
person is not liable for the debts of the person's spouse
contracted before the marriage." The clear effect of the
court order is to make the father's present spouse's property
or income indirectly available to pay child support for her
husband's children by a previous marriage. Under these
statutes, this cannot be done.
Second, the court premised the husband's ability to pay
increased child support on the fact that he had his present
wife deposit $1,200 in a Keogh Retirement Plan over a two
year period, and that as of July 1, 1980, there had been a
14 percent increase in Social Security disability benefits,
and that such benefits were sure to increase in the future.
The trial court cannot base child support upon speculative
conditions. Gall v. Gall (1980), - Mont . -, 608 P.2d
496, 37 St.Rep. 639.
Third, there is no evidence in the record concerning
the children's financial needs, and resources, nor the
financial needs and resources of the mother and father. The
law requires this evidence to be before the trial court.
See, Olson v. Olson (1978), 175 Mont. 444, 574 P.2d 1004, 35
$1
St.Rep. 175. Section 40-4-20 (b), MCA, states that unless
the parties agree in writing to a new arrangement for child
support, child support can only be modified upon a showing
so substantial and continuous as to make the original child
support payments unconscionable. See, Firman v. Firman
(19801, - Mont . -, 610 P.2d 178, 37 St.Rep. 888, 890.
The record contains no such showing and the trial court made
no such finding.
We cannot affirm the trial court's award of attorney
fees, small as it was--$200. We have repeatedly held that
written findings are required to establish both the need and
reasonableness of an award of attorney's fees. See, e.g.,
In Re Marriage of Gohner (1980), - Mont. - 609 P.2d
,
288, 37 St.Rep. 613, 615; Knudson v. Knudson (1980),
Mont . , 606 P.2d 130, 37 St.Rep. 147; In Re Marriage of
,
Aanenson (1979), - Mont. - 598 P.2d 1120, 36 St.Rep.
1525, 1529; Downs v. Downs (1979) - Mont . -, 592 P.2d
938, 940, 36 St.Rep. 577, 581. These cases are based on
section 40-4-110, MCA. The trial court failed to make
either of these essential findings, and for that reason
alone the award of attorney fees must be vacated.
O t h e q u e s t i o n of m o d i f i c a t i o n of v i s i t a t i o n , we
n
a f f i r m t h e t r i a l c o u r t , b u t a l s o hold t h a t i n l i g h t of o u r
remand, t h e t r i a l c o u r t can t h e n determine whether o r n o t it
wants t o r e c o n s i d e r t h i s p a r t of i t s o r d e r . Before t h e
h e a r i n g , t h e f a t h e r was e n t i t l e d t o v i s i t a t i o n on a t l e a s t
two Saturdays p e r month. He and t h e mother l i v e a l o n g
distance apart. The f a t h e r , mother, and c h i l d r e n , t e s t i f i e d
t h a t i t was exceedingly hard having t o t r a v e l t o t h e f a t h e r ' s
home and back t o t h e m o t h e r ' s home on t h e same day, i n
o r d e r t o meet t h e Saturday v i s i t a t i o n schedule. The f a t h e r
t e s t i f i e d t h a t Saturday v i s i t a t i o n involved a t l e a s t t h r e e
and a h a l f t o f o u r hours t r a v e l i n g time on a normal day, and
up t o s i x hours i n t h e w i n t e r . He admitted t h a t Saturday
v i s i t a t i o n i s " n o t o n l y expensive b u t i t ' s hard on t h e k i d s
and h a r d on everyone concerned." The t r i a l c o u r t simply
modified t h e v i s i t a t i o n ( s e e , s e c t i o n 40-4-217(3), MCA) s o
t h a t i t would s e r v e t h e b e s t i n t e r e s t of t h e c h i l d r e n .
W b r i e f l y discuss t h e procedural questions r a i s e d .
e In
e f f e c t , t h e f a t h e r would have us g r a n t him custody of t h e
c h i l d r e n by d e f a u l t ; t h a t i s , because t h e mother f a i l e d t o
f i l e h e r response w i t h i n t h e time provided by t h e r u l e s .
W have c o n s i s t e n t l y h e l d , however, t h a t any doubt i n t h e
e
l a t e f i l i n g of an answer should be r e s o l v e d by t r i a l on t h e
m e r i t s (Cure v. Southwick ( 1 9 6 0 ) , 137 Mont. 1, 349 P.2d 575;
B r o t h e r s v. B r o t h e r s ( 1 9 2 4 ) , 71 Mont. 378, 2 3 0 P . 6 0 ) ,
and custody c a s e s p r e s e n t a compelling reason f o r a h e a r i n g
on t h e m e r i t s . Further, t h e f a t h e r i s not without procedural
f a u l t here. A f t e r he f i l e d h i s p e t i t i o n f o r c u s t o d y , a t
l e a s t s i x months e l a p s e d b e f o r e t h e h e a r i n g , and d u r i n g t h e
i n t e r i m , he could have rnoved t h e c o u r t t o compel t h e mother
t o f i l e an answer o r t o have h e r h e l d i n contempt of c o u r t
i f s h e f a i l e d t o do so. The f a t h e r d i d n o t h i n g .
W e do n o t see e r r o r i n t h e t r i a l c o u r t g r a n t i n g a n e x
p a r t e r e q u e s t o f t h e mother t o have a d d i t i o n a l t i m e t o f i l e
h e r proposed f i n d i n g s and c o n c l u s i o n s . Rule 6 (b) (1),
M.R.Civ.P. g i v e s t h i s r i g h t t o t h e c o u r t , and t h e f a t h e r h a s
n o t shown t h a t t h e e x t e n s i o n w a s g i v e n a f t e r t h e e x p i r a t i o n
of t h e t i m e due f o r submission o f t h e proposed f i n d i n g s and
c o n c l u s i o n s . F u r t h e r , t h e f a t h e r h a s f a i l e d t o show how h i s
s u b s t a n t i a l r i g h t s w e r e p r e j u d i c e d by t h e c o u r t ' s g r a n t i n g
t h i s extension.
The o r d e r i s v a c a t e d and t h i s c a u s e i s remanded t o t h e
D i s t r i c t Court f o r f u r t h e r proceedings c o n s i s t e n t w i t h t h i s
opinion.
W e concur:
A Chief J u s t i c e \