No. 54-254
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
IN RE THE MARRIAGE OF
KENNETH PAY CARLSOW I
Petitioner and Respondent,
and
VICKIE
Respondent and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF IR~~CORD:
For Appellant:
Steven J. Shapiro, Helena, Montana
For Respondent:
Wright, Tolliver & Guthals, Billings, Montana
Submitted on Briefs: Oct. 11, 1984
Decided: December 27, 1984
' [ \ t b' ,
Filed: rji- 'i .uu-t
*-
& -4
,
Clerk
I
---
Mr. LTustice John C. Sheehy delivered the Opini.on of the
Court.
Vickie Carlson Shapiro appeals from a post-judgment
order of the Thirteenth Judicial District, Yellowstone Coun-
ty, reducing the child support monies to be paid by Kenneth
Ray Carlson. The order of the District Court is reversed and
remand-ed.
Kenneth and Vickie Carlson married in 1970 and divorced
on July 5, 1979. They have three children, two
eleven-year-olds and a eight-year-old, who live with their
mother. The District Court incorporated in the marital
dissolution decree a contractual agreement between the par-
ties that the father would pay to the mother $150 per month
for each child for their support. The mother received no
maintenance under the aareement.
The father is a high school graduate with vocational
training in bookkeeping and extensive work experience in
retail store management. The mother has no job-market
skills. She currently works at home providing temporary
child care.
Both parties remarried after the dissolution. At the
time of the hearing the father was unemployed, but at the
time of the djvorce he earned $36,0@O per year as a store
manager. His annual earnings later increased to $47,000. He
voluntarily transferred. to California then quit his job as a
store manager due to job stress. He has had several jobs
since returning to Montana, but because o f hea-lth and finan-
cial reasons he has been unable to obtain regular employment.
The District Court found that it is unlikely he will earn a
salary comparable to what he earned at the time of the
decree. The mother is currently earning approximately $400
per month from her child care work.
On October 25, 1983, the father petitioned the District
Court to reduce his child support payments. Refore petition-
ing, the father permitted his children's medical insurance to
expire and did not pay child support for them during July,
August, and September of 1983. After September he did not
pay his full obligation mty
oh)
nl( and made ].ate payments.
Both parties submitted affidavits of their necessary
monthly expenses to the District Court. The husband's affi-
davit shows:
House Payment $ 500.00
Heat 65.00
Light 35.00
Phone 40.00+
Paper 7.50
Car Insurance 25.00
Car Payment/'83 Buick 289.00
Gas 104.00
Groceries 450.00
Medical 25.00
Dental 15.00
Note - Bark 35.00
Visa 96.00
Ma sterCard 70.00
Montgomery Wards 32.00
Child Support 225.00
Clothing 25.00
Tota 1 $2,036.00
The foregoing are the expenses of the father, his
present wife, and her two children. His wife receives child.
support but the District Court refused. to allow testimony as
to its amount.
The mother's a.ffidavit shows:
House Payment $ 470.00
TJtilities 100.00
Gasoline and car
maintenance 48.00
Life insurance 50.00
Car insurance 28.00
House insurance 40.00
Groceries 280.00
Clothing 40.00
Telephone 16.00
Newspaper 10.00
Household maintenance 24.00
Entertainment 16.00
Medical, dental,
optical 32.00
Total $1,154.00
The mother's figures are for hersel-f and the three
children. She excluded her present husband's expenses from
her affidavit.
The District Court stated its findings that the cost for
providing the children ' s needs have increased, not dimin-
ished, since the decree of dissolution. Nevertheless the
District Court redu-ced the child support payment that was to
be made by the father to the sum of $75 per month per child,
or a total o f $225 per month.
The wife raises five issues on appeal:
(1) The father was not entitled to equitable relief
because he came to the court with "unclean ha.ndsW in that he
had not made all of his child support payments.
(2) It was error for the District Court to conclude
that the husband's circumstances had substantially changed,
and that the sum of $450.00 per month for child support was
(3 The father's contractual obligations for child
support precluded modification by the District Court.
(4) The District Court ahused its discretion in reduc-
ing the father's child support obligation.
(5) The District Court erred in failing to award the
attorney fees and costs.
In determining whether child support should he modified
the District Court is governed by section 40-4-208(2) (b),
MCA, which states:
"(b) Whenever the decree proposed for modification
contains provisions relating to maintenance or
support, modification under subsection (1) may only
be made:
" (i) upon a showing of changed circumstances so
substantial and continuing as to make the terms
unconscionable; or
"(ii) upon written consent of the parties."
The standard for this Court in reviewing the District
Court's determination is to give deference to the lower
court's discretion. "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."
Hughes v. Hughes (Mont. 1983), 666 P.2d 739, 741, 4 0 St-Rep.
1102, 11.05. A presumption exists in favor of the District
Court iudgment. To bring about a reversal of the District
Court the appell-ant must demonstrate that there was a clear
abuse of discretion or an error in the District Court's
findings. Reynolds v. Reynolds (Mont. 19831, 660 P.2d 90,
ISSUE NO. 1
-- Did the father's "unclean hands" preclude
the District Court from reducing the child support to be paid
by him?
This Court has held that when child support comes due
under a, decree it becomes a judgment debt simi1ia.r to any
other judgment for money and cannot be retroactively modi-
fied.. Wil.l.i.ams v. Budke (19801, 186 Mont. 71, 7 7 , 606 P.2d.
515, 518. We recognize that one seeking equity must do
equity and that the nonpayment of child support is
inequitable, and in some cases reprehensible. However,
holding that a petitioner cannot seek modification until all-
past due child support is paid would be an unworkable solu-
tion, deny access to the courts, and ignore a long series of
cases that have allowed modification of future support pay-.
ments. Williams v. Budke, supra; Knowlton v. Knowlton (~ont.
1981), 632 P.2d 336, 38 St.Rep. 1304. The law, as stated in
or$c -
section 40-4-208 ( I ) , continues to be that anme+-mn for modi-
fication may only alter support payments accruing subsequent
rtydrcr\
to the r
& for modification.
ISSUE - -
NO. 2 Had the father's circumstances changed so
substantially and continuingly as to make the payment of $450
per month for child support unconscionable?
The record substantiates that the father is currently
~343
unemployed .ithere is no evidence supporting a conclusion that
this substantial change in the father's circumstances is
continuing. In Hughes v. Hughes (Mont. 1.983), 666 ~ . 2 d739,
741, 40 St.Rep. 1102, 1105, the District Court findings were
held to be clearly erroneous because no evidence was
presented to prove that the husband's change in circumstances
was continuous. The District Court correctly identified the
question involved: "Can he go to work?" The father's evi-
dence failed to show that his unemployment was permanent or
that earning capacity had been substantially reduced.
The amount to which the child support payments was
reduced is an amount less than welfare would allow the mother
to receive under Aid to Dependent Children. The effect of
the District Court's decision is to transfer to the wife, who
has a far lesser earning capacity, more than half of the cost
of supporting the children.
It appears to us that the effect of an inadequate child
support award is that the adverse economic impact of divorce
is absorbed by the custodial parent and the children. In
fact the children become the unwitting victims of inadequate
child support. The difficult task facing District Courts in
properly awarding child support payments to the custodial
parent is a matter of concern for all.
We offer, as a guideline for consideration in determin-
ing child support, the formula set out in an article "How to
Calculate Child Support" by Maurice Franks, appearing in Case
and Comment, January-February, 1981. The theory of the
formula is that the financial needs of the child should be
paid by both parents in proportion to their earning capacity.
"N" equals the total needs of the child and should include
adequate daycare costs if needed. " N u will vary according to
the parents hut should never be lower then AFDC payments.
"C" equals the earning capacity of the custodial parent. "V"
equals the earning capacity of the visitation parent. The
total needs of the child, N, is met by both parents in pro-
portion to their ability to contribute. Expressed
and
As an example, if a child has monthly needs for food,
clothing, shelter, recreation and daycare amounting to $400, /
I
then N = $400. If the visitation parent earns $30,000 and
th.e custodial parent earns $10,000, the child support award
is:
The visitational parent will contribute $300; the custodial
parent will contribute $100 in kind.
Of course, C and V must realistically reflect what the
parents are capable of earning using their actual earnings
as a guideline. Use of the formula rejects romantic notions
of women being supported by their ex-husbands, or fathers
refusing employment they do not like. Married parents have
no such luxury, and it should not be a luxury afforded
divorced parents.
In the present ca.se, the District Court found that the
children's needs have increased, but ignored the testimony
regarding the mother's earning capacity and the fact that if
she works the children need day care. The court apparently
assumed that the father's unemployment is permanent. Ry
reducing the child support to $75 per month per child, the
District Court shifted the greater financial hurden of sup-
porting the children to the mother. In real-ity, the effect
of the District Court decree is to shift some of the hurden
of supporting the chil-dren to the mother ' s current husband..
The father came into District Court asking that the
child support be equitably adjusted. As this Court said in
Barbour v. Barbour (1958), 134 Mont. 317, 326, 330 P.2d 1-033,
1098. "However, the law, the children must eat. He who
seeks equity must. do equity."
ISSUE NO. 3
-- Did the contractual obligation for child
support preclude modification by the District Court?
In all divorce matters relating to children, the best
interests of the children control. While terms of a contract
may be introduced as evidence in some instances, the custody
and support of children are never left to contract between
the parties.
The mother relies on Winters v. Winters (Mont. 1980),
610 P.2d 1165, 37 St.Rep. 840, for support of the proposition
that some areas of divorce can be governed by contractual
agreement between the parties. This remains true, but as we
stated in Winters at page 1168:
"What we hold here has no hearing on the power of
the court to modify agreements of the parties
regarding child support in later applications
(citation omitted). The question before the court
[in Winters] did not i.nvol.ve the welfare of the
children, in which event the court could modify any
agreement of the parties to achieve their protec-
.
tion (citations omitted) "
NO. 4
ISSUE - - Did the District Court abuse its discretion
in reducing the child support obligation?
The mother argues that the equities of this case are
such that the judge abused his discretion in reducing the
father's child support payments. We are remanding this cause
for error in the finding that the father's current changed
circumstances are permanent. We also determine that the
District Court abused its discretion in reducing the amount
of child support which the District Court ordered to be paid
by the father on the ground that it was improperly measured.
The affidavit of the mother shows expenses of $1,154 per
month for herself and the children. The District Court's
findings are that the children's expenses are greater than
$450 a month. ~ 1 is not the duty of ~ ~ ~ a x d I r f I r f I r f t h e
t
mother's new husband to provid-e support. As we said in
Reynolds v. Reynolds (Mont. 1983), 660 P.2d 90, 94, 40
St.Rep. 321, 325, a new spouse" income can be considered in
determining a parent's ability to pay child support, but it
cannot be determinative nor does it relieve the other parent
of the obligation to support his or her chil-dren.
There was testimony in this case that the father's new
wife received child support from her former husband. We
agree with the District Court that the new wife had no obli-
gation to support these children, but the information should
have been admitted for a different purpose. The father has
claimed expenses of $2,036 for himself, his new wife, and her
children. He i.s n o t , however, responsible for supporting
those children. By n o t d e d u c t i n g what t h e new w i f e r e c e i v e d
in child support from the f a . t h e r l s claimed expenses, the
f a t h e r ' s a f f i d a v i t o v e r s t - a t e d h i s e x p e n s e s p e r month.
A s s t a t e d . above, on r e v i e w t h i s C o u r t g i v e s d e f e r e n c e t o
t h e D i s t r i c t Court i n c h i l d support m a t t e r s . A p p e l l a n t must
d e m o n s t r a t e t h e r e i s c l e a r abuse o f d i s c r e t i o n o r e r r o n e o u s
findings t o reverse t h e D i s t r i c t Court. Reynolds v . Reynolds
(Mont. 1 9 8 3 ) , 660 P.2d 90, 93, 40 St.Rep. 321., 324. W e are
remanding this cause for error in finding that the child
support payments .,
should be reduced to the figures here
1113 @ $ " 4 ~
without s u p p o r t i n g e.asee- of the father's present earning
capacity.
ISSUE - - 5
NO. Should t h e w i f e have been awarded a t t o r n e y
fees?
The award of a t t o r n e y f e e s under s e c t i o n 4 0 - 4 - 1 1 0 , MCA,
i s n o t mandatory upon t h e D i s t r i c t C o u r t . Since t h e cause i s
being remanded for other reasons, we 1-eave open to the
D i s t r i c t C o u r t whether i n l i g h t o f t h e f u r t h e r r e c o r d i n t h i s
c a s e t h e w i f e would be e n t i t l e d t o a t t o r n e y f e e s .
Reverse and. remand f o r f u r t h e r p r o c e e d i n g s .
W Concur:
e
Chief J u s t i c e
Mr. Chief Justice Frank I. Haswell, specially concurring:
I concur in the result but I do not believe that deter-
mination of the proper amount of child support can be reduced
to an algebraic formula.