No. 86-10
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
IN RE THE MARRIAGE OF
SHIRLEY REA JENSEN, now
SHIRLEY REA WANBERG,
Petitioner and Appellant,
and
GORDON STEVEN JENSEN,
Respondent and Respondent.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable James B. Wheelis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Rex Palmer, Missoula, Montana
For Respondent:
Connell & Beers; Thomas J. Beers, Missoula, Montana
Submitted on Briefs: August 7, 1986
Decided: October 20, 1986
Filed:
*# J
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This is an appeal from an order of the District Court
of the Fourth Judicial District in and for Missoula County,
Montana. The District Court found respondent husband
responsible for child support that was not paid prior to June
1, 1981. The court modified the amount of child support,
made a supplemental decree regarding visitation part of the
final decree, refused to hold the respondent in contempt, and
made each party responsible for his own costs and attorney's
fees. The petitioner wife appeals. We affirm.
The parties in this action have been before this Court-
before. In Re the Marriage of Jensen (Mont. 1981), 629 P.2d
765, 38 St.Rep. 927. The facts prior to that decision are
the same. In that action husband appealed the District
Court's award of back child support based on a percentage
increase in his hourly wage rate, future support payments of
$275 per child per month, and the order to pay his wife's
attorney's fees. A stay of judgment was granted pending
appeal. We upheld the District Court. Predictably the
decision did not relieve the friction between the parties.
Husband (Steve) began making $550 monthly support
payments after our 1981 decision. Because he did not pay the
increased support until the appeal was final, he owed
considerable arrearage and interest. Steve and appellant,
Shirley, orally agreed that when he took the children for an
extended visit his payment would be reduced proportionately
with the number of days he had the children. Additionally,
in January, 1982, Shirley, knowing Steve would be working
fewer hours because of layoffs and strikes, orally agreed to
a reduction of child support on a monthly basis during time
of layoff and strike. Consequently, Steve has paid less than
the total amount ordered by the District Court; however, he
has lived up to the oral agreement with Shirley.
Realizing he was about to be transferred from Bozeman
to Missoula in the spring of 1 9 8 4 , with a concomitant loss of
about $5,000 in subsistence pay, Steve discussed with Shirley
the possibility of a modification of child support. Shirley
indicated she preferred the present oral arrangement to an
actual modification --that is, a reduction when Steve was on
strike, laid off, or had the children. Nevertheless, Steve
petitioned the court for reduction, claiming a change in
circumstances so substantial and continuing as to make the
terms of the 1 9 8 0 decree unconscionable. Shirley's income
had continued to rise since the 1 9 8 0 modification, while
Steve's remained more or less the same, with the reduction
when he moved to Missoula. Shirley appeals the order issued
from that hearing.
The Court will consider the following issues:
(1) Whether a child support decree can be modified
orally to reduce the support, and if so, whether there was
substantial evidence to find the oral modification binding;
(2) whether there was substantial evidence to support
the court's conclusion there had been a change in
circumstances requiring a change in child support;
(3) whether it was error to modify the visitation
provisions of the existing decree; and
(4) whether the court erred in denying attorney's
fees.
In reviewing orders of the District Court we presume
the judgment of the District Court is correct. Reynolds v.
Reynolds (Mont. 1 9 8 3 ) , 660 P.2d 9 0 , 93, 40 St.Rep. 3 2 1 , 324,
and will reverse the District Court only when there is a
clear abuse of discretion. Rule 52(a), M.R.Civ.P.
The test of abuse of discretion is
whether the trial court acted arbitrarily
without employment of conscientious
judgment or exceeded the bounds of reason
resulting in substantial injustice.
[Citing cases.]
In Re the Marriage of Perry (Mont. 1985), 704 P.2d 41, 43, 42
Shirley argues the court's findings of an oral modifi-
cation of the child support provision is directly contrary to
S 40-4-208, MCA. The statute reads in pertinent part:
(1) Except as otherwise provided in
40-4-201(6), a decree may be modified by
a court as to maintenance or support only
as to installments accruing subsequent to
the motion for modification.
(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 ...
We have recognized that parties to a child support
decree may orally modify the amount of support. See In Re
the Marriage of Good (Mont. 1984), 691 P.2d 1337, 1339, 41
St.Rep. 2109, 2111; Haaby v. Haa.by (1974), 165 Mont. 475,
478, 529 P.2d 1387, 1388. The statute allows a court to
modify a decree of support on two different theories. Under
subsection (2)(b)(i), the court may order modification upon a
showing of changed circumstances so substantial and
continuing as to make the terms unconscionable. This
statutory statement is similar in nature to a statement that
a modification may be made only upon substantial
circumstances rendering enforcement inequitable. In
addition, under (2) (b)(ii), the court may make its order as
to subsequently accruing installments based upon the written
consent of the parties. The question then becomes whether an
oral modification of the support or maintenance provisions of
a decree is enforceable in Montana, and the extent of any
such enforcement.
In the recent case of State of Washington ex rel.
Blakeslee v. Horton (Mont. 1986), 722 P.2d 1148, 43 St.Rep.
1321, the uncontradicted findings of the District Court
established an oral agreement which had been carried out for
fourteen years by both the former husband and wife. The
District Court concluded that when parties mutually agree to
support amounts different than those set forth in the decree,
equity cannot allow a party t.o nullify such agreement and
later to claim the benefit simply on the basis that there is
a meter running totaling a dollar loss in child support. We
affirmed the District Court and held that equity demanded the
claim of the mother should fail.
In a similar manner, in In Re the Marriage of Cook
,
(Mont. 1986), - P.2d - 43 St.Rep. 1732, we agreed with
the District Court that the mother was estopped from
enforcing the support provision of the decree from the date
she and the father had entered into an oral agreement
modifying the amount of the support provisions. We noted the
provisions of § 40-4-208, MCA, are subject to the doctrine of
equitable estoppel under the facts of the case, pointing out
that the doctrine may be applied only in those cases where
there is clear and compelling evidence of its elements.
In the present case, we again find an oral agreement
between a mother and father which has been followed for
several years. We therefore hold that in Montana a decree for
support may be modified on equitable grounds by a court where
there is clear and compelling evidence of the terms of an
oral agreement of modification. We further hold such
modification may be applied only to maintenance and support
payments to be made subsequent to the oral agreement for
modification. These conclusions are consistent with S
40-4-208, MCA, which limits modifications to installments
subsequently accruing, and which also limits the power of the
district court to modify, except upon a showing of changed
circumstances so substantial and continuing as to make the
terms unconscionable where there is no written consent of the
parties. These conclusions also are consistent with both
Blakeslee and Cook where we enforced oral agreements
pertaining to installments of support subsequently accruinq.
We further hold that where an oral agreement for the
modification of maintenance or support payments is enforced,
not only must the agreement be made in good faith, but the
mother or father may not impair the rights of any assignee of
support payments based upon public assistance paid to a
party. In the present case the child support decree can be
modified orally to reduce subsequently accruing support
payments.
The next question before the Court is whether there is
an enforceable oral agreement between Shirley and Steve. A
party to an agreement which has been performed for some
length of time is estopped to deny its validity. A letter
from Shirley to Steve provides written manifestation of the
agreement: "We have always come in agreement upon the
reduction of support during layoffs." She also testified,
"We discussed the shortage almost every time there was a.
shortage." Steve testified that he and Shirley had an
agreement whereby he would reduce child support payment.^
during strikes and layoffs or when he had the children.
There is substantial evidence to support the finding of the
District Court an enforceable oral agreement had been made.
On finding there is an enforceable oral agreement, we
must consider whether there is substantial evidence that
there has been a change in circumstances requiring a change
in child support. Not surprisingly, conflicting evidence as
to the parties' financial circumstances was offered. It is
the duty and function of the District Court to resolve such
conflict and its findings will not be disturbed on appeal
where they are based on substantial, though conflicting
evidence. In Re Support of Rockman (Mont. 1985) , 705 P.2d
590, 592, 42 St.Rep. 1323, 1325.
While Steve's wages have been reduced, Shirley's
financial situation has improved. She has remarried and her
new husband has a steady job. They are buying a piano and an
expensive car. Shirley owns two pieces of rental property.
They have no day-care expenses because of Shirley's work
schedule, and recently took a trip to Hawaii. Steve lives in
a fifth-wheel travel trailer, and has assumed the financial
obligations for his disabled girl friend and her young son.
He owns very little personal property and no income producing
property. His employment is subject to strikes and layoffs,
yet he has tried to make payments as he is able. The court
found these changed circumstances so substantial and
continuing as to make the terms of the 1980 modification
unconscionable pursuant to S 4 0 - 4 - 2 0 8 ( 2 ) fh) (i), MCA. The
court's findings are not in error.
Shirley's argument it was error for the District Court
not to grant the petition for child support income deduction
is moot. The day this appeal was filed, the parties executed
a stipulation that Steve was to pay $3,460 to Shirley, and
Shirley was to release all Steve's funds held by the Missoula
County Sheriff's Department in satisfaction of his
obligations to her pursuant to paragraph 1 of the District
Court's order of September 27, 1985.
Shirley contends it was error for the court to modify
the visitation provision of the existing decree because
neither she nor the court had been served notice of the
motion to modify. "Under 5 40-4-217(3), MCA, the trial court
may modify visitation rights when the modification would be
in the best interest of the children." Gall v. Gall (1980),
187 Mont. 17, 19, 608 P.2d 496, 498. The original decree
allowed Steve reasonable visitation rights on the then
apparent ability of the parties to agree. Testimony during
the hearing indicated conflict between Shirley, Steve and
Steve's girl friend over visitation. The court did not abuse
its discretion in concluding visitation periods needed to be
spelled out to preclude further disagreements between the
parties. There is no evidence such modification would not be
in the best interests of the children. The modification
clarifies visitation to guarantee them frequent and
substantial contact with their father. In view of the
continuing instances of controversy between the parties, such
a decision is in the best interests of the children.
Shirley is not entitled to attorney's fees. Award of
attorney's fees under the statute is not mandatory. Section
40-4-110, MCA. In Re the Marriage of Carlson (Mont. 1984),
693 P.2d 496, 501, 41 St.. Rep. 2419, 2425. Shirley argues
the separation agreement and an award of attorney's fees in
Jensen, supra, 629 P.2d 765, 38 St.Rep. 927, entitles her to
cost of suit in this action. However, in that case she
prevailed and made a showing of need. In the case at bar she
has made no showing of need and is not the prevailing party.
We will not disturb the District Court's refusal to award
attorney's fees.
The order of the District Court is approved.