Johnson v. Johnson

30. 82-418

I N THE SUPREME COURT O THE STATE O F ?lONTkNA
F

1983

IZd RC TI-IE MARRIAGE OF
CARL LYNN JOHNSON,

P e t i t i o n e r and A p p e l l a n t ,

TRUDY LYNN JOHNSON,

Respondent and R e s p o n d e n t .

Appeal from: D i s t r i c t Court of 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
J o e l G. Roth, Judge p r e s i d i n g .

C o u n s e l o f Record:

For Appellant:

Ralph T . Randono, G r e a t F a l l s , Flontana

For Respondent:

B a r t e l i u s & Assoc.; Cameron F e r g u s o n , G r e a t F a l l s ,
Flontana

S u b m i t t e d on B r i e f s : May 2 6 , 1983

Decided: August 4 , 1983

Filed:
AUG 4 4983

Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Carl Lynn Johnson, husband, appeals from an order issued
by the District Court of the Eighth Judicial District,
Cascade County, granting Trudy Lynn Johnson, wife, an
increase in child support payments. We affirm.
The parties were divorced on February 23, 1977. The
dissolution decree incorporated a settlement agreement which

provides that wife receive custody of the parties' then
three-year-old son, and that husband pay $125 per month for
child support.
On May 27, 1982, wife filed a motion in the District
Court requesting that husband be required to pay all
delinquent child support payments and also requesting an
increase in child support payments from $125 per month to
$200 per month.
A hearing was held on July 7, 1982. Wife testified that
at the time of the divorce, she was working three days a week
at approximately $3 per hour. She now works full time as a
restaurant hostess and earns approximately $440 per month.
Wife compared her income, excluding child support, to her
monthly expenses, which amounted to over $700. She also
testified that the expenses for raising Steven, the parties'
eight-year-old son, have substantially increased as Steven
has grown older and entered school. In addition, inflation
since the parties' divorce has increased the cost of food,
clothing, and other items for Steven.
Husband testified that his net income was $924.61 per
month and that his expenses, including child support, amount
to $825 per month. Since the parties' divorce in 1977,
husband also has received annual cost of living salary
increa-ses in his employment with the Great Falls Fire
Department and is therefore, earning more now than at the
time of the divorce.
After the hearing, the District Court issued its
findings of fact, conclusions of law, and order increasing
child support payments to $200 per month. The District Court
adopted most of wife's proposed findings, refusing only to
grant attorney fees and costs. Husband appeals from the
District Court's order, and presents the following issues for
our review:
1. Whether there is sufficient evidence to support the
increase in child support payments?
2. Whether the District Court erred by adopting most of
wife's proposed findings of fact and conclusions of law?
Wife also raised the following issue in her brief:
1. Whether the District Court erred by refusing to

grant attorney fees and costs?
We affirm the District Court on all issues.
Husband first contends that the District Court erred in
increasing his child support obligation. When determining
whether the child support obligation in this case should be
modified, the District Court is governed by section
40-4-208 (2)(b)(i), MCA, which states:
"Whenever the decree proposed for modification
contains provision relating to. . support,
modification. ..
may only be made
"(i) upon a showing of changed circumstances so
substantial and continuing as to make the terms
unconscionable."

This Court will reverse the District Court on this issue
only if the District Court's findings are clearly erroneous
in light of the evidence in the record. Rule 52(a),
M.R.Civ.P.; Reynolds v. Reynolds (1983), Mont . -- 660
P.2d 90, 40 St.Rep. 321.
Although this is a close case in relation to the

evidence presented to prove that an increase in child support
is necessary, we do not find that the District Court's
findings are clearly erroneous, and must therefore uphold
the decision of the District Court. In its findings, the
District Court relied upon the increased age and needs of the
parties' son and the effect that inflation had upon wife's
ability to buy food, clothing, and other items necessary for
raising the child. These factors have been relied upon by
this Court in several other cases wherein we upheld an
increase in child support. See Reynolds v. ~eynolds (1983),

- Mont . , 660 P.2d 90, 40 St.Rep. 321, and Baer v.
Baer, (19821, Mont . , 647 P.2d 835, 39 St.Rep. 1178.
In this case, the above-mentioned factors coupled with the
fact that wife's expenses exceed her income, demonstrate that
the changed circumstances of the parties are so substantial
and continuing as to make the terms of the original decree
unconscionable. The District Court's findings, therefore,
are not clearly erroneous.
Husband next argues that the District Court erred in
adopting most of wife's proposed findings of fact and
conclusions of law. This issue has been discussed by this
Court on numerous occasions. See Parenteau v. Parenteau

(1983) Mont . -I - P.2d , 40 St.Rep. 815; Baer
v. Raer (19821, Mont. , 647 P.2d 835, 39 St.Rep.
1178; In re Marriage of Jensen (1981), Mont . , 631
P.2d 700, 38 St.Rep. 1109. Although this Court disapproves
of wholesale adoption of proposed findings of fact and
conclusions of law, we will uphold the District Court's
findings if they are not clearly erroneous.
I1
.
findings and conclusions which are
sufficiently comprehensive and pertinent to the
issues to provide a basis for decision, and which
are supported by the evidence. . .
will not be
overturned simply because the trial court relied
upon proposed findings and conclusions submitted by
counsel.'' Parenteau,40 St.Rep. at 819.

Since the District Court's findings are not clearly
erroneous and the conclusions of law properly reflect the
laws of Montana, we uphold the order of the District Court.
Finally, wife contends that the District Court erred in
refusing to grant attorney fees and costs. We cannot review
this issue, however, because wife failed to file a
cross-appeal.
"Although Rule 14 (M.R.App.Civ.P.) provides for
review of matters by cross-assignment of error,
this does not eliminate the necessity for
cross-appeal by a respondent who seeks review of
rulings on matters separate and distinct from those
sought to be reviewed by the appellant." Johnson
v . Tindall (1981), 195 Mont. 165, 169, 635 P.2d
266, 268.

The order of the District Court is affirmed.

&dY,
* Justice

a&
We Concur:

?A&$,Chief Justice

s Justices