No. 80-383
IN THE SUPREME COURT OF THE STATE OF MONTANA
1981
NINA R. DEMPSTER, formerly
known as NINA R. McCONNELL,
Plaintiff and Appellant,
VS .
EARL P. McCONNELL,
Respondent and Respondent.
Appeal from: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin, Montana
Honorable W. W. Lessley, Judge presiding.
Counsel of Record:
For Appellant:
Morrow, Sedivy, Olson, Scully & Eck, Bozeman, Montana
For Respondent:
Berg, Coil, Stokes and Tollefsen, Bozeman, Montana
Submitted on briefs: December 17, 1980
Decided: January 28, 1981
Filed:
-
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Petitioner Nina R. Dempster appeals from the judgment
of the Eighteenth Judicial District Court, Gallatin County,
modifying the child support provision of her decree of
divorce to respondent Earl McConnell. We do not reach the
issues presented by petitioner. We find that the judgment
entered in this case clearly conflicts with the court's
findings of fact and conclusions of law. We remand this
judgment to the District Court. See, Thomas v. Thomas
(1980), - Mont . , 617 P.2d 133, 37 St.Rep. 1710.
Petitioner and respondent have one minor child, a son
named Clinton McConnell. Pursuant to the child custody
provisions of the decree of divorce, Clinton resides with
petitioner and her family at their farm near Big Timber,
Montana. Respondent, an Oregon rancher, is required by this
decree to pay petitioner $100 monthly for Clinton's support.
Because of inflation and the financial demands for supporting
a growing boy, petitioner requested the District Court to
modify the decree by increasing respondent's support obligation
to $210 monthly. The District Court held a hearing regarding
this request and entered the following findings of fact:
"That as a result of this Court's Judgment, dated
January 13, 1975, Respondent was ordered to pay
child support to Petitioner for Clint at the rate
of $100.00 per month.
"That since January 13, 1975, the conditions of
the Petitioner's needs for support have changed,
in that the cost of living has risen, and the
cost of raising the minor child has likewise
increased, all by more than loo%, and Respondent
has the ability to pay substantially more support,
and therefore, the current requirement of
paying only $100.00 per month as child support
is unconscionable.
"That the Respondent should pay to Petitioner
the sum of $200.00 per month for the support,
care, custody and education of the minor child,
along with medical and dental expenses he incurs,
beginning on July 1, 1980, with the additional
sum of $100.00 paid into a trust fund for the
exclusive use of the boy."
The Court then used these facts to make the following
conclusions:
"Vi.
"That this Court's previous Judgment, dated January
13, 1975, should be modified by increasing the
child support payments to be made by Respondent to
Petitioner to $200.00 per month, plus medical
and dental bills of Clint, beginning July 1, 1980,
with payment of the additional $100.00 into a
trust fund."
The Court requested respondent to prepare an order based
upon these findings and conclusions. A judgment was prepared
and entered, providing the following order for child support:
"3. That plaintiff (respondent) shall pay the
sum of TWO HUNDRED DOLLARS ($200.00) per month,
plus medical and dental bills of Clinton Earl
McConnell, beginning July 1, 1980; that ONE
HUNDRED DOLLARS ($100.00) per month shall be
paid directly to the defendant (petitioner) and
that an additional ONE HUNDRED DOLLARS ($100.00)
shall be paid into a trust fund established in
the name of Clinton Earl McConnell, said trust
fund to be for the boy's exclusive use. The
plaintiff, Earl P. McConnell, shall be the
trustee charged with the care and accounting of
said trust fund."
This judgment substantially conflicts with the District
Court's findings and conclusions. The court found that the
boy's increased support needs rendered the current $100
monthly amount unconscionably low. The court then concluded
that respondent pay petitioner an extra $100 monthly to be
held in trust to provide for the support needs of the boy.
The judgment conflicts with this conclusion by providing
that respondent keep the increased support payment and hold
it in trust. As we held in Thomas, supra, we must remand
this case to the District Court to enter a judgment con-
sistent with its findings. It appears that some person
other than the former husband would be an appropriate trustee
for the trust fund.
Remanded to the District Court for entry of consistent
findings, conclusions and order in conformity with this opinion.
We Concur:
Chief Justice
This case was submitted prior to January 5, 1981.