No. 87-566
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
IN RE THE MARRIAGE OF
LYNNE CALLAHAN,
Petitioner and Appellant,
and
EDWARD CALLAHAN,
Respondent and Respondent.
APPEAL FROM: District Court of the Second Judicial District,
In and. for the County of Silver BOW,
The Honorable Arnold Olsen, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Nye & Meyer, Billings, Montana
For Respondent:
Brad Belke, Butte, Montana
Submitted on Briefs: July 21, 1988
Decided: September 1, 1988
Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Appellant, Lynne Callahan, appeals the findings of
fact, conclusions of law, and order of the Honorable Arnold
Olsen, Second Judicial District, Silver Bow County. Respon-
dent moved for modification of child support and visitation
rights and obligations of the dissolution decree of December
10, 1984. The District Court found that the amount of child
support per month was too high; that although the father had
not made any support payments, this was mitigated by extenu-
ating circumstances; and that the mother was secreting the
children from respondent. Judge Olsen entered his findings
on November 6, 1987.
The following issues are brought on appeal:
1. Whether the District Court rulings on abandonment
and ability to pay child support were within its subject
matter jurisdiction.
2. Whether the District Court abused its discretion in
modifying the child support agreement.
3. Whether the District Court erred in adopting re-
spondent's alleged mitiga-ting circumstances for unpaid child
support.
4. Whether the District Court abused its discretion in
finding that the mother secreted the children from
respondent.
5. Whether the District Court erred in finding that
the respondent owed no more than $9,300.00 in arrears for
child support.
6. Whether the District Court abused its discretion in
accepting the respondent's findings of fact wholesale.
We reverse.
Appellant and respondent were divorced on December 10,
1984. In the dissolution decree it was agreed that the
mother would have custody of the three children from the
marriage and the father would receive visitation during
holidays, weekends, and summers. Respondent was ordered to
pay $100.00 per month per child in child support. Respondent
failed to pay any support in the three years between the
decree and the July 6, 1987, hearing. Respondent only visit-
ed the children twice shortly after the divorce proceedings.
When he took the children back to appellant's residence after
the first visit in Stevensville, he allegedly swore at the
appellant, threw the children's luggage out of the car, and
pointed a gun at the appellant.
Thereafter, the appellant did not tell the respondent
her new address when she moved. She testified that she did
not tell the respondent because she feared for her life and
the lives of her children. She did, however, leave a for-
warding address with the postal service and held a valid
driver's license with the most current address. Respondent
claimed that he went to extensive means to find the appellant
and the children but was unsuccessful for two years.
Appellant served respondent a petition for adoption of
the children by Ed Wright, appellant's new husband. Respon-
dent moved for a post-dissolution hearing which would clarify
his visitation rights, where he claimed mitigating circum-
stances for not paying child support, and requested that
appellant be held in contempt of court for secreting the
children from him. It is from the District Court's findings
in this action that appellant appeals.
The first issue in this case is whether the District
Court had proper subject matter jurisdiction over the matters
of abandonment and the father's ability to pay child support.
The post-dissolution hearing from which this case arises
centered around the issues of unpaid child support and re-
spondent's visitation rights. Three years after the
dissolution decree, this hearing was held shortly after the
respondent was served with an adoption proceeding notice.
Appellant's husband, Ed Wright, is petitioning for the adop-
tion of the Callahan children. Lynne Callahan and Wright
claim that because respondent has not made payments and has
not visited the children for over a year, he abandoned the
children, pursuant to 5 4 - 8 - a (iii), MCA, and 5 41-3-
102 (3)(d), MCA. Respondent moved to have child support
payments modified, visitation rights clarified, and a finding
against abandonment. In the order of November 6, 1987, Judge
Olsen found that Ed Callahan had not abandoned his children
and desired a continuous relationship with them.
The question of abandonment was outside the scope of
the Second Judicial District's subject matter jurisdiction.
Pursuant to Rule 12 (h)(3) , M.R.Civ.P. , "whenever it appears
by suggestion of the parties or otherwise that the court
lacks jurisdiction of the subject matter, the court shall
dismiss the action." It is clear in this case that the court
holds jurisdiction over the issues which were included in the
original dissolution decree. Those issues are: dissolution
of the marriage, child support, property distribution, and
visitation rights. This list does not include abandonment.
The question of abandonment is one which is to be decided by
the court which hears the adoption proceeding. In a case for
modification of rights and obligations in a dissolution of
marriage, lack of subject matter jurisdiction may be raised
at any time and a court may not acquire the jurisdiction even
with the consent of both parties. Corban v. Corban (1972),
161 Mont. 93, 504 P.2d 985; Marriage of Cox (Mont. 1987), 736
P.2d 97, 44 St.Rep. 567.
Ability to pay, on the other hand, is an issue which is
within the purview of the District Court's jurisdiction. The
ability of the father to pay is an important feature of child
support. The lower court has subject matter jurisdiction
over matters relating to support payments.
The second issue is whether the District Court abused
its discretion in modifying the child support. Under
S 40-4-208 (2)(b)(i), MCA, when a decree for modification
contains provisions relating to support, modification may be
made by the court only "upon a showing of changed circum-
stances so substantial and continuing as to make the terms
unconscionable." The burden of showing the necessary change
for modification is on the movant, in this case, the respon-
dent. State of Or. ex rel. Worden v. Drinkwalter (Mont.
1985), 700 P.2d 150, 42 St.Rep. 599. Respondent has failed
to do so here.
In the original dissolution decree of December 10,
1984, the District Court ruled that Edward Callahan was to
pay $100.00 per month per child in support. It made this
ruling knowing that respondent was a substitute teacher, had
a limited salary, and that he had a spinal injury limiting
some of the work that he could do. The District Court made
modifications apparently without considering the fact that in
the three years since the decree, respondent's income and
health have remained nearly the same. There have been no
substantial changes which call for modification of the de-
cree. Nor has respondent passed the burden of proof to show
that a change is necessary. In fact, respondent has not
shown anything to this Court which would cause us to affirm
the modified decree. He has never made a support payment and
he received $20,000.00 in settlement for his spinal injury,
none of which was used for child support.
It is within the District Court's discretion to decide
whether the noncustodial parent has the ability to pay child
support when considering modification of child support. Tn
Katter of Adoption of K.L.J.K. (Mont. 1986), 730 P.2d 1135,
1139, 43 St.Rep. 2297, 2301, we instructed trial judges to
consider certain elements when determining whether a parent
is able to contribute to the support of a minor child,
including:
(1) The parent's ability to earn an income;
(2) The parent's willingness to earn an income and
support his child;
(3) The availability of jobs;
(4) The parent's use of his funds to provide himself
only with the bare necessities of life prior to providing
support for his child.
In taking these factors into consideration when decid-
ing whether the noncustodial parent is able to pay, it it is
easier to also decide if there has been a substantial change
in circumstances. The trial court abused its discretion in
modifying the support payments without a proper examination
of the requirements.
The trial court also erred in modifying the amount of
child support to $50.00 per month. While the guidelines
suggest that no support can be for less than $50.00, to
clarify, that amount should be $50.00 per month per child.
This will assure that the custodial parent can properly care
for the children.
When determining the proper amount of support to be
paid by respondent, we would suggest that the District Court
use the Uniform Child Support Guidelines (Mont. 1987), 44
St.Rep. 828, and the requirements cited here before modifying
the original decree.
Respondent claimed that there were mitigating circum-
stances which prevented him from making payments, namely: the
lack of income, a spinal injury suffered in 1979, and his
lack of knowledge of the whereabouts of the children in order
to make payments. The District Court ruled that the
circumstances did call for mitigation. The District Court
abused its discretion in adopting mitigating circumstances.
The respondent claims lack of income as a mitigating
excuse. The District Court ruled that Edward Callahan was to
pay $300.00 per month support in the original decree. Al-
though he has essentially the same income now that he had in
1984, the District Court modified the original decree on the
grounds that respondent's income was insufficient to pay
child support. Respondent has not made a single payment of
child support and makes issue of the payments three years
later. Moreover, he received a settlement of $20,000.00,
paying doctor's bills and debts without making any payments
to support the children. At the hearing, the District Court
was disturbed with the fact that respondent had not used any
of the settlement for child support, but made no mention of
the settlement when he adopted the mitigating circumstances
in the order.
Respondent also claims that the spinal injury limits
the work he can do. A friend of the respondent, though,
deposed that Edward Callahan turned down full time jobs
because they were outside of Butte. Respondent also stays
active by riding horses two or three times a week and doing
minor excavation in the basement of his home.
The third of the mitigating circumstances was that
respondent did not know the location of his children in order
to send the support money. However, the respondent knew
where the family was living from the time of the dissolution
decree, December 1984, through the fall of 1985, and still
made no payments to the appellant. Moreover, the appellant
left forwarding addresses with the United States Postal
Service and respondent had only to send the checks to her
Stevensville address and they would have arrived at the Boyd
address. The District Court erred in adopting the mitigating
circumstances.
The fourth issue is whether the District Court abused
its discretion in finding that the mother secreted herself
and the children from the respondent.
The District Court held appellant in contempt for not
keeping the respondent apprised of the location of her and
her children. After the divorce appellant moved with the
children to Stevensville a.nd was there until the fall of 1985
when she moved to Boyd. She did not contact respondent to
tell him that they had moved but did leave a forwarding
address with the post office. Section 40-4-222, MCA, on
joint custody, states:
The legislature of the state of Montana
finds and declares that it is the public
policy of this state to assure minor
children frequent and continuing contact
with both parents after the parents have
separated or dissolved their marriage
and to encourage parents to share the
rights and responsibilities of child
rearing in order to effect this policy.
...
Although both parents are to carry the rights and responsi-
bilities, the custodial parent does not have an affirmative
duty to tell the noncustodial parent of every move within the
state. It is, however, our suggestion that each parent keep
the other parent apprised of each other's whereabouts. In
the case on appeal, it was sufficient that the mother left
forwarding addresses with the postal service and held a valid
Montana driver's license with her most current address. The
father could have, with little difficulty, located the mother
and children.
The fifth issue is whether the District Court erred in
finding respondent in arrears t.he sum of $9,300.00. This was
the amount due for child support up to the time of the
post-dissolution hearing in July 1987. However, the court
erred in not adding the accrued support due from July to
December 1987 in its order of November 6, 1987. Moreover,
appellant is entitled to interest accruing on the past pay-
ments still due. Torma v. Torma (1982), 198 Mont. 161, 645
P.2d 395.
The last issue is whether the District Court erred in
accepting wholesale the findings of fact of the respondent.
We hold here that it did so err. Error occurs when the court
accepts one party ' s proposed findings of fact without proper
consideration of the facts and where there is lack of inde-
pendent judgment by the court. In Re Marriage of Alt (Mont.
1985), 708 P.2d 258, 42 St.Rep. 1621; In Re Marriage of
Goodmundson (1982), 201 Mont. 535, 655 P.2d 509; In Re Mar-
riage of Hunter (1982), 196 Mont. 235, 639 P.2d 489.
In accepting the respondent's proposed findings, the
court failed to address the $20,000.00 settlement when con-
sidering respondent's ability to pay and whether that amount
should have been used to pay support. The court also accept-
ed respondent's excuse that the payments were mitigated. By
doing this, the court disregarded the fact that the respon-
dent's financial status and physical abilities were the same
as they had been when the original dissolution decree was
decided. Respondent claims that he could not pay support
because he did not know where his children were living; but,
in accepting this, the court did not consider that the re-
spondent knew where the appellant was for one and one-half
years during which time no child support payments were made.
On these grounds we reverse and remand for new proceed-
ings. On remand, the District Court will carefully consider
these issues and find accordingly. The case on appeal is one
where neither of the parties has fulfil-led the obligations of
the dissolution decree. The mother avoided visitation at-
tempts by the father, although they were few. The father did
not make child support payments or try very diligently to
locate his children to make those payments.
Reversed.
Chief Justice
We concur:
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