No. 87-353
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
IN RE THE MARRIAGE OF
KAYLENE DIANE FORSMAM,
Petitioner and Appellant,
and
MARTIN WILLIAM FORSMAN,
Respondent and Respondent.
APPEAL FROM: The District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable James R. Wheelis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Fred Thornson, Missoula, Montana
For Respondent:
Geiszler, Taylor, Newcomer & McClain; Kerry N.
Newcomer, Missoula, Montana
Submitted on Briefs: Oct. 16, 1987
Decided: December 18, 1987
~ i l e 15 1987 ~
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Clerk
Mr. Justice John C. Harrison delivered the Opinion of the
Court.
This is an appeal from the District Court of the Fourth
Judicial District, Missoula County, Montana, requesting a
reduction of support obligation from a decree of dissolution
granted December 6, 1982, by the Honorable Jack L. Green,
District Judge. The request for temporary order reducing
support was filed on February 27, 1987. The temporary order
came before the Honorable James B. Wheelis on April 24, 1987.
Judge Wheelis entered his findings of facts and conclusions
of law and amended the original decree on June 1, 1987,
granting a temporarv reduction. Appellant now appeals the
District Court's reduction in child support. We reverse.
Four issues are presented for our review:
(1) Did the District Court commit reversible error
when it modified child support payments temporarily for the
months of March and April, 1987?
(2) Did the District Court commit reversible error
when it modified child support for the months, May, June,
July, August and September, 1987?
(3) Did the District Court commit reversible error
when it excluded the inflation clause and modified the
medical care obligation?
(4) Did the District Court commit reversible error
when it refused to award attorney's fees and costs to the
appellant.
At the time of the dissolution in 1982, the parties had
been married for twelve years. From that marriage, two
children were born: Jillian, now age fifteen and Christian,
now age twelve. The original decree of dissolution was
issued by Judge Jack L. Green in December of 1982. According
to the decree appellant mother (mother) was to receive $250
per month per child for support of the parties' two children.
These payments included a yearly cost of living increase
which began in November of 1983. Child support was to be paid
prior to and throughout the four years of each child's
college education. ~espondent father (father) was also to
maintain medical and dental insurance on the children and a
life insurance policy on himself with the children as
beneficiaries.
Prior to the dissolution, the family owned a home
valued at approximately $56,000. For 1981, the last full
year prior to the dissolution, the father had an annual
adjusted gross income of $23,019, and for 1982 his adjusted
gross income was $25,003. At that time father was an
employee of a local department store. The mother was
employed on an occasional basis, working five hours per week,
but with the majority of her time spent in caring for the
home and the parties' two children.
Following the dissolution, father changed jobs and
started working as a travelling salesman for a major clothing
manufacturer. His sales route covers the states Montana,
northern Idaho and eastern Washington and his salary is on
commission basis. He has now remarried and currently lives
with his new wife in Missoula, Montana, in a home valued at
over $50,000.
It is father's contention that his gross income has
declined from 1985 levels by approximately forty percent,
blaming the decline on several factors that influence retail
clothing sales.
Following the dissolution, mother moved with the
children to Butte, Montana, where, in June, 1985, she
purchased a home valued at $29,000. She has obtained
employment as a medical librarian working twenty hours a week
while continuing to care for herself and the two children
with additional care required for her youngest child, who is
emotionally disturbed. Mother has sought full-time
employment, however, the economically depressed condition of
the city of Butte has affected her full-time employability.
Mother's annual adjusted gross income in 1986 was
$6,673. In accordance-with the decree, mother was entitled
in 1986, to $570 per month in child support. Mother's annual
income therefore was $13,513. The record reveals that annual
expenses for mother and the two children were approximately
$14,196. House payments and living expenses were met with
mother's income, the $570 monthly support payments, money
remaining from mother's share of the sale of the parties'
former home and interest accrued from her savings account.
This money has been depleted as mother used that money to
meet monthly expenses, especially when father paid only a
total of $100 per month in child support during the months of
February, March and April of 1987.
For the purpose of our discussion, issues (1) and ( 2 ) ,
whether the District Court erred when it modified child
support payments temporarily for the months of March and
April and modified support payments for the months of May,
June, July, August and September, 1987, will be discussed
together.
Our statute applicable to modification for child
support is B 40-4-208, MCA. Subsection (2) (b) of S 40-4-208,
MCA, controls in this case and states in part:
(2)(b) Whenever the decree proposed for
modification contains provisions relating
to maintenance or support, modification
under subsection ( I ) may only be made:
(i) upon a showing of changed
circumstances so substantial -
and
continuing as to make the terms
unconscionable, . . . (Emphasis added.)
Our statute provides that the District Court must
determine that circumstances since the entering of the
original decree have changed so substantially and with such
continuity that to continue with the original terms would be
unconscionable. Here there is no question that because of
the economic situation, there has been a slowdown in clothing
sales. However, that slowdown may well be only a temporary
situation and it does not suffice to substantially change
support for the two children. Additionally, the two children
are now into their teenage years. This Court has recognized
that children in the age bracket 12-17 generate greater
expenditures for the parent than children in the age bracket
0-11. Order Adopting Guidelines For Determining Child
Support (Mont. 1987), 44 St.Rep. 828, 836.
Section 40-4-208, MCA, is intended to allow
modification of the original terms only when the newly
modified terms are "substantial and continuing." The statute
by its own terms precludes modification to cure a temporary
change in circumstances. The father's circumstances have not
changed sufficiently that he cannot pay child support as
ordered by the original decree.
Mother and the children's circumstances have severely
worsened. As noted, mother has depleted all of her resources
that she had and is able to work only twenty hours per week
because of the economic condition in Butte and to enable her
to spend the necessary time with her emotionally disturbed
child. In addition, her failure to receive the full amount
of child support provided by the original decree has
endangered her ability to continue making payments on their
home. Mother purchased the home for herself and the two
children in good faith based upon the settlement of the
dissolution. Mother fears the loss of the family home would
have a devastating effect on the youngest child's stability.
Father's adjusted gross income in 1982 was $25,003; in
1985 it was $30,249; and in 1986, it was $27,000. In his
argument father contends that he has unavoidable business
expenses with his clothing sales job and these expenses
should be deducted from his gross income. Father further
contends that from his gross income minus business expenses,
his "living expenses" should be deducted. F e note that
J
several deducted business expenses have also been deducted as
living expenses. It appears that father's changed
circumstances are not substantial and continuing and the
District Court erred in granting a temporary modifi-cation
under S 40-4-208 (2)(b), MCA.
Issue three concerns whether the court erred in
modifying the terms of the child support excluding the
inflation provision and reducing father's obligation to pay
total medical insurance costs. We find clear error here for
there was no prayer for relief for the exclusion of the
inflation provision nor for a reduction of his obligation to
pay for health care. Here the mother had no opportunity to
hear arguments in favor of any modification in respect to
these matters. The court also erred in taking the father's
proposed findings of fact and conclusions of law, which
contain said provisions, over the mother's objections and
adding them to the findings of the court. See, Marriage of
Baer (1982), 199 Mont. 21, 647 P.2d 835. We find the
District Court abused its discretion when it modified both
the inflation and the health provisions of the decree without
providing ample opportunity for the mother to argue against
such modification.
Lastly we discuss the District Court's refusal to award
attorney's fees and costs to mother. See 5 40-4-110, MCA.
This Court has previously held that this statute generally
holds that a showing of necessity is a condition precedent to
the award of attorney's fees. Carr v. Carr (Mont. 1983), 667
P.2d 425, 40 St.Rep. 1263. In that case we held that due to
the husband's substantially greater salary and other factors,
that when considered with the wife's economic position, the
court did not abuse its discretion in awarding attorney's
fees to the wife.
In this case there is no question of the mother's need.
The father has a considerably higher income and mother is
charged with the care of their two children. Clearly
mother's standard of living has been lowered considerably
since the dissolution. In addition, the father is the one
that moved for the modification decree bringing the mother
into the court for litigation. The father is in a much
better economic situation than the mother, this fact is a
compelling reason to award mother attorney's fees. Jn
addition this Court has also held that when the trial court
refuses to award attorney's fees, the underlying reason must
be indicated in the findings of fact. Hammeren v. Hammeren
11982), 201 Mont. 443, 663 P.2d 1152. This order of the
District Court does not substantiate its reasoning for not
awarding costs and attorney's fees. In fact, attorney's fees
are not mentioned.
Here in the Findings of Fact, Conclusions of Law and
Order the District Court modified the payments for a period
of eight months. The court further noted that the mother or
father may schedule further review for chi16 support after
September, 1, 1987. In the event no review was scheduled by
mother, the order would remain in effect. This is an
interesting finding by the District Court because in this
action the court denied the mother attorney's fees and yet in
another finding proposes that she can apply in September,
1987, for further "review." This "review" would again call
for attorney's fees which she cannot afford in the first
place. The District Court erred by refusing to award
attorney's fees and costs to the appellant mother.
We reverse and direct the District Court to restore
full amount of child support award, $570, with regular
increases for inflation and further restore father's
obligation to pay total medical insurance costs as ordered in
the original December 6, 1982, decree of dissolution.
Furthermore, the District Court is directed to provide
reasonable attorney's fees to the
We Concur: -4
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