No. 87-351
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
IN RE THE MARRIAGE OF
ROSEMARY HAGEMO ,
Petitioner and Respondent,
AND
GARY THEODORE HAGEMO,
Respondent and Appellant.
APPEAL FROM: District Court of the Third Judicial District,
In and for the County of Deer Lodge,
The Honorable Robert Boyd, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Gough, Shanahan, Johnson & Waterman; Alan L. Joscelyn,
Helena, Montana
Wendell B. Dunn, Whitefish, Montana
For Respondent:
Knight, Dahood, McLean & Everett; David M. McLean,
Anaconda, Montana
Submitted on Briefs: Dec. 31, 1987
Decided: February 9, 1988
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
The District Court of the Third Judicial District, Deer
Lodge County, Montana, entered judgment on April 2, 1987
further modifying a property settlement agreement, which the
parties already had modified on June 24, 1983. Gary Hagemo
(hereinafter husband) argues that the court's modification,
which granted Rosemary Hagemo (hereinafter wife) maintenance
of $250 per month and increased husband's child support
obligation from $300 to $500 per month for each of two
children, is improper since the couple had modified their
agreement to do away with his maintenance obligation. He
cites S 40-4-208, MCA, as requiring that wife petition for
modification within two years. He further argues that the
court abused its discretion by failing to provide appropriate
findings of fact to bolster its conclusions of law and by
accepting the wife's proposed findings and conclusions in
toto and verbatim.
We affirm the District Court.
The couple's marriage was dissolved in February, 1983.
By terms of the initial settlement agreement incorporated by
the dissolution decree wife received custody of the parties'
two children and $250 per month per child in support. She
also was to receive one-half the proceeds from the sale of
the family home plus an amount sufficient to resume her
teacher's retirement. From the month after the family home
sold until wife took a teaching job in the Anaconda school
system, which the parties assumed would be by September,
1984, she was to receive $500 per month in maintenance.
Husband is a locomotive engineer for Burlington
Northern. His gross earnings from tax year 1986 were
$53,126.80. Wife had taught in the Anaconda schools for four
years before this marriage. Her testimony was that had she
been hired as a teacher she would have earned $22,000 for the
1986-87 term. Because she has not been able to find a
teaching job she works as a receptionist and earned
$10,539.14 in 1986.
In June, 1983, the family home was sold leaving the
parties with net proceeds of $19,122.01. The parties
modified the settlement agreement so that wife was to receive
$20,000 in payment in lieu of periodic maintenance. Thus,
she received the total proceeds from the home sale, and
husband's monthly child-support obligation was raised from
$500 to $600 eight months earlier than in the original
schedule. The remaining $77.99 was to be paid as the parties
determined. Again it appears that the parties envisioned
wife would be teaching when the 1984 school year began.
On January 26, 1987, more than three years after the
parties had modified the agreement, wife petitioned the
District Court to enter another modification. She said that
changes in circumstances had occurred, namely that she had
been unable to find a teaching job despite "diligent efforts"
forcing her to take jobs paying substantially less. Her
monthly expenses exceeded her monthly income and she sought
maintenance. Meanwhile, she claimed, husband had bought lake
property, motorcycles, all terrain vehicles, automobiles, and
a share in an airplane and had taken vacations. This, she
said, meant that the level of child support was inadequate.
Husband's first argument is that the wife's petition
for modification was not timely under B 40-4-208, MCA:
(2) (a) Whenever the decree proposed for
modification does not contain provisions
relating to maintenance or support,
modification ... may only be made
within 2 years of the date of the decree.
(b) Whenever the decree proposed for
modification contains provisions relating
to maintenance or support, modification
... may only be made:
(i) upon a showing of changed
circumstances so substantial and
continuing as to make the terms
unconscionable; ...
This argument is not persuasive since both the original
agreement and the parties' modified agreement spoke to
maintenance and both explicitly provided for certain levels
of child support. Thus, they are not subject to the two-year
limitations of $ 40-4-208(2) (a), MCA, but rather are subject
to modification at any time upon a showing of substantial and
continuing change of circumstance. Section 40-4-208 (2)(b),
MCA.
Husband's argument is that as of January, 1987, he was
not making monthly maintenance payments, thus they were
forgiven, and cannot be resumed at this late date. However,
the mere fact that a party is not currently paying
maintenance does not necessarily preclude modification. See,
Fraunhofer v. Price (1979), 182 Mont. 7, 19, 594 P.2d 324,
331; In re the Marriage of Rush (Mont. 1985), 699 P.2d 65,
66-7, 42 St.Rep. 581, 583. The fact that one party has
satisfied his maintenance obligations to the other party must
be considered by the District Court when it determines
whether modification is justified since the amount and
duration of maintenance payments are frequently bargained.
Marriage of Rush, 699 P.2d at 67.
Husband relies on In re the Marriage of Cooper (Mont.
1985), 699 P.2d 1044, 42 St.Rep. 619, for his contention that
wife was barred from seeking modification after the two
years. That case does not control because there the District
Court was asked by the wife to make a determination of the
proper rate of maintenance. It held that wife was entitled
to none, thus deleting the maintenance provision entirely.
Marriage of Cooper, 699 P.2d at 1046. Here, the initial
modification was by agreement of the parties.
Whether the change in circumstances was so substantial
and continuing as to be unconscionable is primarily a
question for the District Court. This Court has not defined
the term unconscionable as it is used in 540-4-208 (2) (b)(i),
MCA; its interpretation relies on case by case scrutiny of
the underlying facts. In re the Marriage of McNeff (Mont.
1983), 673 P.2d 473, 475, 40 St.Rep. 2050, 2052. The facts
in this case are consistent with those factors set forth in
55 40-4-203 and 40-4-204, MCA. Award of maintenance is
proper if: (1) the party seeking maintenance lacks
sufficient property to provide for his or her needs, and
(2) the party is unable to support himself or herself
through appropriate employment. In re the Marriage of Watson
(Mont. 1987), 739 P.2d 951, 955, 44 St.Rep. 1167, 1171-72.
The court found that the agreements made by the parties were
based on the assumption that wife would have found a teaching
job by September, 1984 but that she had been unsuccessful in
job searches for four years straight. This, coupled with
husband's higher earnings represents the required changes of
circumstances.
The District Court adopted the wife's proposed findings
totally and completely to the exclusion of the husband's
proposed findings. The record shows two sets of proposed
findings with the notation on the wife's that it had been
"adopted by the court" and signed by the judge. Husband
claims there is insufficient evidence to justify adopting
wife's findings and that this is an abuse of discretion. It
is preferred that the District Court consider the proposed
findings of both parties and then prepare its own findings.
By doing so, the court demonstrates its conscientious concern
and exercises its independent judgment, which provides this
Court with a better basis for review. See, Tomaskie v.
Tomaskie (Mont. 1981), 625 P.2d 536, 538-39, 38 St.Rep. 416,
419; Marriage of Watson, Among the findings
of fact the court adopted from the wife were:
25. The Court notes that the husband is
driving a 1986 Audi automobile, that he
owns a 1973 boat, a 25% interest in an
airplane, he possesses a T.V. satellite
that requires a $1,000.00 annual payment;
that he rents a hangar for his airplane,
and is spending over $2,000.00 this year
for overhaul on the airplane.
26. The evidence presented at the trial
demonstrates that the wife and two
children of the marriage are attempting
to meet the necessary obligations of life
on approximately $1,210.00 per month. On
the other hand, the husband has
approximately $2,750.00 for meeting
living expenses which include luxury
items such as airplanes, boats, T.V.
satellites and paying rent on a home that
he is not living in.
27. The wife testified at the trial that
in order to meet the necessary living
expenses for herself and the children she
will require a payment of $250.00 per
month alimony and will require that the
child support for each child be raised
from $300.00 per month to $500.00 per
month ...
Among the conclusions of law adopted were:
3. There was a showing of change of
circumstances that was substantial and
continuing so as to make the terms of the
original decree of divorce and property
settlement agreements unconscionable.
4. The standard of living of the
children has been substantially reduced
below that which would have existed had
this marriage continued but that the
standard of living of the husband has not
diminished to a like degree.
We have developed a test for determining the validty of
findings adopted from one party:
[W]here, as here, findings and
conclusions are sufficiently
comprehensive and pertinent to the issues
to provide a basis for decision, and are
supported by the evidence, they will not
be overturned simply because the court
relied upon proposed findings and
conclusions submitted by counsel.
Kowis v. Kowis (1983), 202 Mont. 371, 379, 658 P.2d 1084,
1088. Error occurs when the court relies on one party's
proposed findings instead of its own consideration of the
facts and exercise of its independent judgment. In re the
Marriage of Alt (Mont. 1985), 7 0 P.2d 258, 262, 42 St.Rep.
'8
1621, 1626. The District Court heard the testimony of both
parties and examined the exhibits placed into evidence.
Because there is sufficient evidence within the record to
support the wife's findings and conclusions, the court did
not abuse its discretion in adopting them. In re the
Marriage of Hamill (Mont. 1987), 732 P.2d 403, 408, 44
St.Rep. 220, 225. Therefore, we will not reverse.
We note lastly that the husband appeals the court's
determination that he was technically in contempt of court
for defying a District Court order that purportedly requires
him not to share the premises with female companions
overnight when he has custody of the children. We cannot
review this question, however, since the record fails to
include the text of this order. Rule 9(b), M.R.App.P. We
would note, however, that providing there is such an order,
husband has not been prejudiced since the court, in its
discretion, did not punish him for this contempt, but merely
issued a warning.
Affirmed .
We concur: _'
I
ief Justibe