No. 82-388
I N THE SUPREP4E COURT O T I STATE O M N A A
F EE F O T N
1983
PEGGY A. REYNOLDS,
P e t i t i o n e r and R e s p o n d e n t ,
-vs-
JAMES C . REYNOLDS,
Respondent a n d A p p e l l a n t .
Appeal from: D i s t r i c t Court o f ' t h e Nineteenth 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 L i n c o l n , The H o n o r a b l e
R o b e r t M. H o l t e r , J u d g e p r e s i d i n g .
C o u n s e l o f Record:
For Appellant:
Murphy, Robinson, H e c k a t h o r n & P h i l l i p s ; Donald
R. Murray, K a l i s p e l l , Plontana
For Respondent:
S u s a n Loehn, E u r e k a , Montana
Submitted on B r i e f s : December 9 , 1902
Decided: March 3 , 1983
Filed:
MAR 3 1983
Mr. Justice John C. Sheehy delivered the Opinion of the Court.
J m s C Reynolds appeals from a judgment of the District Court
.
of the Nineteenth Judicial District, Lincoln County, modifying his
child support payrnents and ordering him to furnish medical coverage
for his t w o minor children.
James C. Reynolds (husband) and Peggy A Reynolds (wife) were
.
married in 1961. Their marriage was dissolved on May 14, 1979. The
divorce decree included a property settlement agreement wherein
husband was required to make property settlement payments of $100
per month to the wife until August 1982. Husband was also required
to pay $100 per month child suppart for each of the couples1 four
children. 'I'wo of the children have since reached majority.
On June 18, 1982, wife petitioned the District Court for an
increase in child support of $200 per month per child. In the
petition, wife stated the amount of the current child support, $100
per month per child, was not sufficient to meet the current needs of
the two children, now ages 14 and 16. She also stated that the cost
of living had increased in the three years since the divorce, as had
the physical needs of the children.
On July 19, 1982, the District Court held a hearing to
detemcine whether wife's petition for increased child support should
be granted. The record from the hearing discloses that the
circumstances surrounding the parties have changed since the May 14,
1979 divorce decree as follows:
I CHANGES IN CIRCUPJISTANCES SURROUNDING WIFE
.
At the time of the dissolution, wife began working for the
first tire in 18 years and earned $488 a month. She is now earning
$700 a month. The house which she was awarded at the tire of the
dissolution had payments of $287 a month. She sold the house and
bought a mobile home which costs $328.65 p r month to maintain.
I n s i k C u r lee.
Wife paid autombile,+,premiums of $80 to $90 per year at the
time of the decree. As a result of the destruction of two
automobiles by the parties' children, wife now pays automobile
insurance premiums of $480 per year. In addition, wife's car
payments have increased from $54 per month to $174 per month since
the time of the decree.
Since the two children living with wife have entered high
school, their expenses and needs have increased. Wife pays $40 to
$50 per month for clothing for the children. This clothing expense
increases to $300 per mnth when wife buys school clothes for the
children. In addition, the children a.renow involved in sports, and
wife must pay $80 per month for expnses related to those sports
activities.
Finally, wife testified that although the two older children no
longer live in wife's home, her expenses for groceries and clothing
r m i n the same due to the increased cost of living since the
dissolution.
11. CHANGES IN CIRCUMSTANCES SURROUNDING HUSBAND
At the time of the dissolution, husband received a military
pension, worked part-time as a truck driver, and was a partner in a
custams brokerage firm. He now receives over $200 per mnth more
from his military pension, works fulltime as a truck driver, and has
the option of determining how much income he will take out of the
customs brokerage business.
Since the dissolution, husband has remarried. Husband's new
spouse was employed prior to the filing of the petition for
modification of child support, and earned approximately $700 per
month. She was conpelled to resign from her employment, however,
due to a medical condition. Husband testified that his financial
life is largely independent £ran that of his spouse. His grocery
bill, however, has almost tripled since his remarriage. Husband
a l s o receives no contributions from h i s spouse f o r house payments
and i m p r o v ~ t s .
Although husband's net spendable income has decreased since the
entry of the decree, he now has a t l e a s t $711.80 per month a f t e r
expenses.
On August 3 , 1982, the D i s t r i c t Court entered its findings of
f a c t , conclusions of law, and judgment. The court found wife's
present income t o be $950 per month, and her monthly expenses t o be
$1,230.74. The court estimated husband's annual income a t $24,000.
The court also found husband's spouse's annual income t o be
approximately $10,000, and reasonable expenses of husband and h i s
spouse t o be $1,400 per month.
In its findings, the D i s t r i c t Court a l s o took judicial notice
of i n f l a t i o n and its e f f e c t upon the economy. ". . . amunts which
in 1979 m y have represented a f a i r contribution t o child support
have been eroded drastically." The court a l s o noted t h a t a minimum
established. by the Welfare Department f o r a i d t o dependent children
in Lincoln County in July 1982 was $187 per month. From these
findings, the court concluded "that conditions of child support have
changed since 1979 in t h i s cause, t h a t [wife] has a need of $200 per
month per child of support and [husband] has the a b i l i t y t o pay the
same. " The court thereafter granted wife's petition for
modification of child support, and increased child support t o $200
per month per child.
Husband presents the following issues f o r our review:
1. Was there s u f f i c i e n t evidence of changed circumstances so
substantial and continuing a s t o make the terms of the support award
contained i n the decree of dissolution unconscionable?
2. Did the D i s t r i c t Court err i n relying upon the income of
husband's present wife t o find husband had the a b i l i t y t o pay
increased support?
3. Did the D i s t r i c t Court e r r in relying on i n f l a t i o n t o find
a need f o r increased support with no evidence of t h e r a t e of
i n f l a t i o n o r its e f f e c t s on t h e wife?
4. Are the findings of f a c t and conclusions of law made by t h e
D i s t r i c t Court f a t a l l y defective?
W e affirm the D i s t r i c t Court on a l l issues.
For this Court t o reverse the D i s t r i c t Court, husband must
d m n s t r a t e t h a t there was a c l e a r abuse of d i s c r e t i o n by t h e
D i s t r i c t Court, t h a t there is a c l e a r e r r o r i n t h e D i . s t r i c t Court's
findings, and he must overcane the presmption t h a t the judgment of
the D i s t r i c t Court is correct. Grenfell v. Grenfell (1982), -
,
Mont. - 652 P.2d 1170, 1171, 39 St.Rep. 1891, 1893; Jensen v.
Jensen (1979), 182 Mont. 472, 474, 597 P.2d 733, 734. Husband must
show t h a t i n l i g h t of the evidence i n the record, the findings of
the D i s t r i c t Court a r e c l e a r l y erroneous. Rule 52 ( a ) , M.R.Civ.P. ;
B a e r v. Baer (1982), Mont . -, 647 P.2d 835, 838, 39 St.Rep.
1178, 1181.
A s t o t h e f i r s t issue, husband contends there is no evidence in
the record t o support t h e D i s t r i c t Court's judgment t h a t c h i l d
support be increased t o $200 per month per child. W e disagree.
Section 40-4-208 ( 2 ) (b) , MCA, provides, "Whenever t h e decree
proposed for modification contains provisions relating to
maintenance o r support, d i f i c a t i o n . . . may only be made: (i)
upon a showing of changed circumstances so substantial and
continuing a s t o make the terms unconscionable . . ."
The D i s t r i c t Court, in i t s findings of f a c t , s t a t e d t h a t the
circumstances of the p a r t i e s had changed in t h e following manner:
Wife's income a s of Sept-r 1, 1.982, was $950, while she incurred
mnthl-y expenses of $1,230.74; Husband's annual income is
approximately $24,000, and h i s expenses m n t o $15,800 per year;
ut
t h e D i s t r i c t Court c i t e d i n f l a t i o n a s a f a c t o r which supported a
need for an increase in child support; and the District Court noted
that the Welfare Department paid $187 per month for aid to dependent
children, a figure well above the amount which husband paid for
child support under the original decree.
These findings are well supported by substantial evidence in
the record. Wife's testimony indicated that her expenses had
increased since the two children entered high school. The costs of
food, clothing, high school activities, and maintenance of the
automobile and the h m - have caused expenses for the wife that
exceed her income. In contrast, since the emancipation of the
parties' two older children, husband is paying less in child
support. His incme has increased due to the effect that cost of
living increases have had on his pension. Although his expenses
have also increased, he maintains at least $711.80 per month as net
spendable incaw. Based on this record, we hold that the changed
circumstances of the parties are so substantial and continuing as to
r a e the terms of the original decree unconscionable. The District
rk
Court's findings, therefore, are not clearly erroneous.
The next issue is whether the District Court erred by
considering the income of husband's present spouse. Husband
correctly states that Duffey v. Duffey (1981), - Mont. -, 631
P.2d 697, 38 St.Rep. 1105, precludes the consideration of the income
of husband's present spouse in determining husband's increased
ability to pay child support. In Duffey, however, the District
Court's decision to increase child support was based solely on the
income of the husband's spouse. Neither the financial needs and
resources of the children nor the ex-wife were mentioned in the
District Court's findings of fact i Duffey.
n
In the present case, however, the income of husband's present
spouse was only one factor considered by the District Court. Other
factors considered included wife's income and expenses, the
increased financial needs of the children, husband's income and
expenses, and the e f f e c t of inflation on the amount of child support
awarded t o wife i n the original decree. The consideration of these
additional factors by themselves demonstrate t h a t the D i s t r i c t Court
did not e r r by increasing the child support. In this case,
mentioning the incame of husband's present spouse in the D i s t r i c t
Court's findings of f a c t simply indicated h i s remarriage was not
materially affecting h i s a b i l i t y t o pay increased child support.
Husband next argues t h a t the District Court erred i n relying on
inflation t o find a need for increased support w i t h no evid~mceof
the r a t e of inflation o r its effects on husband. W find no mrit
e
in t h i s a r w n t . Today inflation i s not open t o reasonable
dispute. Rule 201(b), M.R.Evid.
The finding of the District Court i n the present case is
similar t o that of the D i s t r i c t Court i n Baer v. Baer (1982),
Mont . , 647 P.2d 835, 39 St.F&p. 1178, wherein t h i s Court
upheld the District Court's finding t h a t , due t o the increased age
of the child and the increased cost of living, the costs of
supporting the child increased by approximately 50 percent since the
divorce. I n Baer, as in the present case, the finding of the
D i s t r i c t Court w s supported by the wife's t e s t h n y t h a t 1) the
a
monthly food budget was affected dramatically by inflation; i n the
present case, wife t e s t i f i e d t h a t her monthly food b i l l had remined
about the same since 1979, even though two children were no longer
living with her; 2) costs of clothing for the children increased
since the divorce; and 3) costs associated with raising children,
including health care, hobbies, and the costs of providing a hcune
for the children increased i n both cases since the divorce. This
evidence provides sufficient support for the District Court's
finding t h a t inflation adversely affected wife's a b i l i t y t o provide
for the children w i t h the amount of child support she w s receiving.
a
Husband cannot complain that no evidence ws
a presented
regarding the e f f e c t of i n f l a t i o n on h i s standard of living.
Husband was present with counsel a t the hearing when wife t e s t i f i e d
how the c o s t of l i v i n g had affected her financial status. Wife's
testimony was not rebutted, nor did husband present any testimony
regarding haw inflation affected him, although he had ample
opportunity t o do so.
Finally, husband contends the findings of f a c t and conclusions
of law are f a t a l l y defective because the D i s t r i c t Court found no
substantial and continuing change i n circumstances and reached no
conclusion that the original award was thereby rendered
unconscionable. I t is c l e a r from our discussion of the f i r s t issue
in t h i s opinion t h a t the D i s t r i c t Court did. indeed find substantial
and continuing changes in t h e p a r t i e s ' circumstances, although the
D i s t r i c t Court did. not so state in those exact words. However, a s
s t a t e d i n Baer, "The f a c t t h a t t h e exact words of the s t a t u t e
(section 40-2-208 ( 2 ) (b)) do not appear i n the D i s t r i c t Court's
findings and conclusions is of no consequence. " 647 P. 2d a t 838.
W e affirm the judgment of the D i s t r i c t Court.
'\.
\\ L L b/lJ!AL,,
&
'1 Justice 4
W e Concur:
Mr. J u s t i c e D a n i e l J . Shea d i s s e n t s and w i l l f i l e a w r i t t e n
dissent later.