Isaacs v. Isaacs

No. 8 6 - 3 2 9
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986

IN RE THE MATTER OF CHILD SUPPORT,
MARY ANN ISAACS, n/k/a KURTZ,
Petitioner and Respondent,

MURR ISAACS,
Respondent and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Charles Luedke, Judge presiding.

COIJNSEL OF RECORD:

For Appellant:
D. Michael Eakin and Russell LaVigne, Montana Legal
Services, Helena, Montana

For Respondent:
J. Dennis Corbin, Miles City, Montana

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Submitted on Briefs: Sept. 25, 1 9 8 6
Decided: December 9 , 1986

Filed:
DEC 9 - 1986

Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.

This is an appeal from an order of the District Court
for Yellowstone County, granting $ 1 5 0 per month in child
support to the father. We remand to the District Court for
clarification.
The issues are:
1. Did the District Court abuse its discretion by
granting an amount of child support which is less than the
amount determined under the Carlson formula and less than the
boys would be entitled to under Aid to Families with Depen-
dent Children (AFDC)?
2. Did the District Court err by failing to make ade-
quate findings as to how the amount of child support was
determined?
The parents marriage was dissolved in 1 9 7 6 . The mother
was awarded sole custody of the younger son, Charles, and the
father was given sole custody of the older son, William.
Both parties were to provide support for the child in their
custody. The father was also ordered to pay the mother $ 7 5
per month for the support of Charles.
In December 1 9 8 5 Charles was found to be a youth in need
of care and was removed from his mother's custody and placed
in his father's custody. That court order stated that "any
determination as to what, if any, support should be paid by
the boy's natural mother to the boy's natural father for his
care, should be determined in the Court of original jurisdic-
tion in Yellowstone County." Shortly thereafter, the father
filed his petition for child support, and in March 1 9 8 6 he
moved for temporary child support. He asked for $180 per

month for each boy.
 At the hearing, the mother's monthly income was estab-
lished as between $800 and slightly over $900. The father
testified that he had been laid off from his job at which he
had earned $1,298.90 per month and was presently receiving
$644 per month in unemployment benefits. The District Court
ordered the mother to pay $150 per month in child support
until Charles reaches the age of majority. The father
appeals.

Did the District Court abuse its discretion by granting
an amount of child support which is less than the amount
determined under the Carlson formula and less than the boys
would be entitled to under Aid to Families with Dependent
Children (AFDC)?
The parents agree that child support must be determined
in accordance with § 40-4-204(1), MCA:

In a proceeding for dissolution of marriage, legal
separation, maintenance, or child support, the
court may order either or both parents owing a duty
of support to a child to pay an amount reasonable
or necessary for his support, without regard to
marital misconduct, after considering all relevant
factors including:
(a) the financial resources of the child;
(b) the financial resources of the custodial
parent;
(c) the standard of living the child would
have enjoyed had the marriage not been dissolved;
(d) the physical and emotional condition of
the child and his educational needs;
(e) the financial resources and needs of the
noncustodial parent; and
(f) for the purposes of determining a minimum
amount for support, the amount received by children
under the AFDC program, as defined in 53-2-702.
Modification of child support must comply with § 40-4-208(b),
MCA :
Whenever the decree proposed for modification
contains provisions relating to maintenance or
support, modifi.cationunder 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 court's findings and conclusions do not specify the
statutes employed in rendering its decision. After making
findings concerning the custody of the children and the
income of both parents, the District Court made this finding:

7. The present circumstances of petitioner,
in the way she is supporting her present family,
has the effect, to at least some degree, of placing
support of her current husband ahead of supporting
her children. Some realignment of priorities in
that regard appears appropriate.
The court concluded:

1. That the respondent is the legal custodian
of the two minor children of the parties.
2. That the petitioner is financially able to
contribute to the support of said minor children.
3. That based upon the incomes of the parties
and the needs of the children, the petitioner, MARY
ANN KURTZ, is able to contribute the amount of
$150.00 as child support for the minor children,
commencing June lst, 1986, and on the 1st day of
each month thereafter, until the youngest of the
children shall have attained majority or otherwise
become emancipated.
The mother contends that the father failed to meet the
criteria set forth in § 40-4-208, MCA, and that therefore no
child support could be awarded for William. It is true that
the father did not allege and the District Court did not
specifically state that there was a change of circumstances
so that the original support decree is now unconscionable.
However, it is obvious that the change of custody of Charles
was a changed circumstance so substantial and continuing as
to make the original child support terms unconscionable.
The father states that the order for $150 per month in
child support does not comply with the formula set forth in
In re Marriage of Carlson (Mont. 1984), 693 P.2d 496, 41
St.Rep. 2419. That formula sets the child support amount
based on the ratios of the parents' incomes as they relate to
the total needs of the child. The father argues that under
that formula, even if his pre-layoff income rather than his
unemployment income was used, the wife would be required to
pay child support of $287 per month, to meet the needs of the
boys as determined by the amounts of AFDC, food stamps, and
Medicaid to which they would be entitled. However, the
formula in Carlson was offered as a guideline, not a require-
ment. Also, this Court has never required that children's
needs be set at the total of AFDC, food stamps, and Medicaid
amounts for that number of children. The statutory standards
control.
The father also states that the amount of child support
ordered by the court does not provide support for the chil-
dren in an amount at least equal to what they would be enti-
tled to under the AFDC program. He points out that the AFDC
amount must be considered under S 40-4-204(1) (f), MCA, and
states the monthly AFDC amount as $354. Actually, that is
the amount for two children and an adult. The amount for two
children is $104 per month. Section 46.10.403 (4)(b), A.R.M.
The court's support amount exceeds that.
We conclude that the District Court did not err on
either of these grounds.
I1

Did the District Court err by failing to make adequate
findings as to how the amount of child support was
determined?
The father cites Hansen v. Jurgens (Mont. 1986), 722
P.2d 1151, 43 St.Rep. 1316, in which we remanded findings and
conclusions for clarification of the origin of the amount set
for child support:

Because the [child support] figure appears incon-
sistent with other relevant findings supported in
the record and its origin is not clear from the
record on appeal, this Court remands the original
District Court order to the .. .
judge for clari-
fication on this point.
Hansen, 722 P.2d at 1155.
Here, the District Court stated that it based its order
on the incomes of the parties and the needs of the children.
The court received into evidence tables of U.S. Department of
Agriculture estimates of the costs of raising a child. It
made specific findings as to the income of the parents, but
nowhere in the findings and conclusions does the court set
forth any statement of the needs of the children. As was
true in the Hansen case, the origin of the child support
figure is not clear from the record. A child support amount
cannot be set or reviewed without a determination of the
needs of the children. Accordingly, we remand to the Dis-
trict Court for clarification of the findings, conclusions
and order.

We Concur: