No. 8 5 - 6 1 2
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
HOLLY A. HANSEN, f/k/a HOLLY A.
JURGENS ,
Plaintiff and Appellant,
JAY C. JURGENS,
Defendant and Respondent.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Nat Allen, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Gary G. Doran, Kalispell, Montana
For Respondent:
Jeffrey D. Ellingson, Kalispell, Montana
Submitted on Briefs: April 4, 1 9 8 6
Decided: July 24, 1 9 8 6
Filed: JUL 2 4 1986
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
Jay C. Jurgens, the father, appeals from the amended
findings of fact, conclusions of law and order entered
September 30, 1985, in Flathead County District Court. He
contends that the second judge, after hearing motions to
amend and for a new trial, erred in amending the first
judge's original findings, conclusions and order. He asks
this Court to reverse the amended findings, conclusions and
order and remand with instructions to reinstate the original
order. We reverse and remand for clarification.
The parties were married in Coeur D'Alene, Idaho, in
1972. They had one child, Thomas Jason Jurgens who was 12
years old at the time of the hearing below. When the
marriage was dissolved in 1974, the decree awarded custody of
Thomas to the mother, respondent here, and required the
father to pay $50 per month in child support. This was a
result of an agreement of the parties and both judges below
found this amount to have been unconscionably low. The
father increased his payments voluntarily to $75 per month in
October 1979 and to $100 per month in May 1985.
Presently, the mother earns an average take-home salary
of $869.98 per month. She has income of $200 per month from
a trust which has a principal balance of about $8,000. She
receives $140 per month in child support for a daughter from
a subsequent marriage. The father is employed by Jurgens
Construction, Inc. He is president and holds 50% of the
shares in that corporation. The remaining shares are held by
his current spouse. He testified that the corporation
currently has a negative net worth and grosses between
$60,000 and $300,000 per year. Any net income is reinvested
in the business and he does not draw a salary. He also
receives $267.82 per month from a contract for deed. Of the
living expenses of $2,600 per month for the father, his
current spouse, and her two children, about $1,900 comes from
sources other than his income.
The mother requested modification of the child support
award in June 1985. The father responded and requested
custody of the child in July 1985. The first judge, after a
hearing, issued findings of fact, conclusions of law and
order on August 30, 1985. The second judge sat on the
mother's motions to amend and for a new trial. He issued the
amended findings of fact, conclusions of law and order on
September 30, 1985.
Both sets of findings state inflation has greatly
affected the purchasing power of a dollar since child support
had first been established. The first set states the
purchasing power to be 60% of that in 1974 and the second set
states the purchasing power to be about half. Both sets of
findings state the costs of raising a twelve year old boy to
be greater than that of a pre-school child. The first set
finds the current cost of raising the child to be $200 per
month, the father's earning capacity to be $1,330 per month,
and sets child support at $105 per month by applying the
formula in In re the Marriage of Carlson (Mont. 1984), 693
P.2d 496, 41 St.Rep. 2419. The second set does not refer to
the cost of raising the child, finds the father capable of
earning $1,600 per month, and sets child support at $250 per
month by referring to local district court guidelines and
Department of Revenue guidelines.
The original order leaves custody of the child with the
mother. It finds that the father's motion for a change in
custody was not vexatious or for purposes of harassment, and
directs each party to bear their own attorney's fees and
costs. The amended order awards the mother her attorney's
fees and costs for bringing the action and defending against
the father's motion for modification of custody. It leaves
custody with the mother. The orders differ on the extent of
visitation awarded the father. The original order extends
his visitation to the summer months except for two weeks
prior to time school begins in the fall. The amended order
continues visitation as it was prior to this action.
The father appeals from the amended order raising the
issue of whether the original order should be reinstated. We
address this issue in two parts:
(1) Whether the second judge erred by amending the
original findings of fact, conclusions of law and order.
(2) Whether the original decision is supported by
substantial credible evidence.
In the first issue, the father claims that the original
findings should not have been set aside unless they were
clearly erroneous, citing Rule 52(a), M.R.Civ.P. That
portion of Rule 52 governs action by a reviewing court in an
appeal rather than the circumstances presented here. In
State v. Carden (1976), 170 Mont. 437, 555 P.2d 738, this
Court stated:
[J]udges of coordinate jurisdictions
sitting in the same court and in the same
case may not ordinarily overrule the
decision of each other ... It is
simply a rule of practice that
articulates the sound policy that when an
issue is once judicially determined, that
should be the end of the matter ...
(Citations omitted.)
170 Mont. at 439-440, 555 P.2d at 740. This Court found no
factors present in that case which would move the discretion
of the later judge to reconsider the prior determinations of
the earlier judges. This Court followed the "law of the
case" principle in Mereness v. Frito-Lay (Mont. 1985), 700
P.2d 182, 184, 42 St.Rep. 716, 718, and could find "no
discernable reason" why the third judge had discretion to
reconsider decisions by two prior judges. Many decisions in
other jurisdictions express a similar general rule that one
district judge may overrule or review a decision of another
district judge in the same case only where there are
"exceptional circumstances," U.S. v. Wheeler (3rd Cir. 1958),
256 F.2d 745, cert. den. 358 U.S. 878, 79 S.Ct. 111, 3
L.Ed.2d 103, reh. den. 358 U.S. 913, 79 S.Ct. 229, 3 L.Ed.2d
234, or "most cogent reasons." Carnegie National Bank v.
City of Wolf Point (9th Cir. 1940), 110 F.2d 569. In
Wheeler, the reviewing court noted the first judge was
available since he had neither died nor resigned, there was
no "pressing urgency" for immediate review, and the new
evidence presented was not substantially different than that
already in the record. For these reasons, that court refused
to uphold the amended order of the second judge. 256 F.2d at
747. In Carnegie, 110 F.2d 569, the second judge dismissed a
suit for failure to prosecute a claim six years after the
first judge "lodged" findings and conclusions favorable to
the plaintiff. The reviewing court held that the second
judge abused his discretion by overruling the first judge's
decision and noted the first judge was still available. 110
F.2d at 573.
The case at bar presents no exceptional circumstances
or cogent reasons warranting the second judge's action in
amending the original decision. The first judge could have
been called back to sit on the motion to amend, as he was and
still is available to consider the motion. Neither party
indicated any pressing urgency. The new evidence presented
by the mother on her motions to amend or for a new trial only
gave additional information on the general costs of raising
children. This evidence did not differ substantially from
what had already been presented and, in fact, could have been
available for use during the hearing before the first judge.
We hold that the second judge erred when he amended the
original findings of fact, conclusions of law and order.
When asking that the original order should be
reinstated, the father argues, in the second issue, that the
original findings of fact were supported by substantial,
credible evidence. The mother argues that the findings on
attorney's fees and on the needs of the child lack support in
the evidence.
On the question of attorney's fees, the first judge
found that the parties agreed the father had no opportunity
to avoid payment of attorney's fees, that the mother made no
demand for a specific dollar amount, that the mother's
attorney filed for modification of child support without
prior notice to the father, and that neither party's motions
were malicious, vexatious or for the purpose of harassment
within the meaning of 5 40-4-219, MCA. The evidence least
supportive of these findings is found in the mother's
testimony. She admitted that the father had no opportunity
to negotiate on the amount of payments prior to her motion
for modification and that when she asked him to discuss
higher payments with his current spouse he voluntarily
increased the amount by $25 per month. In addition, she
acknowledged that he discussed changing the custody
arrangement several times prior to the current action. Even
the mother's testimony supported the findings on attorney's
fees in the original order. We hold that the original
findings on attorney's fees were supported by substantial,
credible evidence.
The original decision contains a number of findings
which bear on the amount of child support. To apply the
formula from In re Marriage of Carlson (Mont. 1984), 693 P.2d
496, 41 St. Rep. 2419, three figures are needed; the
custodial parent's net earning capacity, the visitation
parent's net earning capacity and the needs of the child.
The findings on the needs of the child in the original order
includ-esthe following: (1) $50 per month was unconscionably
low child support in 1974, (2) the purchasing power of the
dollar in 1985 is about 60% of what it was in 1974, (3) the
cost of raising a 12 year old boy is greater than the cost of
raising a pre-school child, and (4) the mother's living
expenses are $1,160 per month.
The District Court then determined the child's needs
were $200 per month with the resulting amount of support
being $105 per month from the father and $95 per month from
the mother using the Carlson formula. The origin of the $200
per month figure is not clear from the record. If the
mother's living expenses are divided three ways between her
and the two children, one share is about $386 per month. No
other evidence was presented on the cost of raising the
child. Using that figure in the Carlson formula, the
resulting amount of child support to be paid by the father is
about $200 per month when considering the other findings, the
$105 has the purchasing power of about $63 in 1974. This is
not much higher than the amount found "unconscionably low,"
set in 1974. In addition, the District Court had found the
cost of raising a 12 year old greater than that of raising a
pre-school child. Because the $200 figure appears
inconsistent 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
first judge for clarification on this point.
The amended findings of fact, conclusions of law and
order are set aside and the original findings of fact,
//I
conclusions of law and order are remanded for c5,arification.
We concur: A
Justices
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