No. 90-050
IN THE SUPREME COURT OF THE STATE OF MONTANA
IN RE THE MARRIAGE OF
JODI RAE HALL,
Petitioner and Appellant,
and
ROBERT WALKER HALL,
Respondent and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Carbon,
The Honorable G. Todd Baugh, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Gary R. Thomas, Thomas Law Office, Red Lodge,
Montana
For Respondent:
Kent E. Young, Red Lodge, Montana
Submitted on Briefs: August 9, 1990
O Decided: September 11, 1990
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court
Jodi Rae Hall (now Jodi Rae Bangart) appeals the decision made
by the Thirteenth Judicial Court, Carbon County, which denied her
Petition for Income Deduction, denied a retroactive child support
increase for 1987, modified her requests for retroactive child
support increases for 1988 and 1989, and modified her award of
attorney fees. We affirm in part, and reverse and remand in part.
Appellant raises the following issues:
1. Did the District Court err in denying appellant's Petition
for Income Deduction?
2. Did the District Court err in determining that retroactive
child support increases should be effective January 1, 1988, rather
than January 1, 1987?
3. Did the District Court err in determining 1988 child
support to be $235.00 per month and 1989 child support to be
$255.00 per month?
4. Did the District Court err in awarding the appellant's
attorney fees of $1,125.00?
Jodi Rae Hall and Robert Walker Hall were divorced on August
3, 1981, following a five-year marriage. One child, Shawn David
Hall, was born during the marriage on August 7, 1976.
The partiess Custody, Support and Property Settlement
Agreement (hereinafter Agreement), which was incorporated into the
Final Decree, granted Jodi sole custody of Shawn and granted Robert
reasonable visitation rights to Shawn. Additionally, the Agreement
called for Robert to pay Jodi monthly child support payments of
$175.00, and specified that if either party initiated court
proceedings concerning this Agreement, the unsuccessful party would
pay the prevailing party's attorney fees.
In 1986, when Robert was seriously in arrears with his child
support payments, Jodi moved the District Court for a show cause
hearing, requesting the court to hold Robert in contempt for
failing to pay child support as specified in the Agreement. Robert
and Jodi, in a Stipulation approved by an Order filed on January
7, 1987, agreed, among other things, to the following: 1) Robert
owed Jodi $3,357.20 in delinquent child support payments, 2) Robert
owed Jodi $290.74 for Jodi's attorney fees and costs, 3) Robert
would increase his monthly child support payment from $175.00 to
$200.00 effective November 1, 1986, 4) Robert would pay Jodi $35.00
monthly toward the delinquent child support arrearage until paid,
5) Robert would pay Jodi's attorney $35.00 monthly toward the above
mentioned attorney fees and costs until paid, 6) Jodi would be
responsible for Shawn's health insurance, 7) if Robert's income
increased, the above payments would be renegotiated, 8) Robert must
provide Jodi with an annual sworn statement, beginning every
January lst, hereafter, as to his total monthly income, and 9) if
Robert or Jodi were to initiate a court action with regard to this
agreement, the unsuccessful party would pay the prevailing party's
attorney fees .
In June, 1987, Robert and Jodi orally modified the Stipulation
and Order. Robert and Jodi, however, disagree as to the terms of
the oral modification. In any event, Robert decreased his monthly
child support payment beginning in June, 1987, from $200.00 to
$180.00, which resulted in total payments to Jodi of $215.00,
$180.00 for child support payment and $35.00 toward the delinquent
child support payment.
Beginning January 1, 1987, to the present, Robert failed to
provide Jodi with annual sworn statements of his monthly income,
which Robert agreed to provide by the terms of the Stipulation and
Order. Through this same time period, however, Robert consistently
paid Jodi $215.00 a month, $180.00 for child support and $35.00
toward the pre-1987 child support delinquency. Two years later,
on June 15, 1989, Jodi filed a Petition for Income Deduction, a
Motion to Increase Support, a Motion for Order to Show Cause, and
on November 3, 1989, a Motion for Attorney's Fees.
On December 11, 1989, the District Court: 1) denied Jodi's
Petition for Income Deduction because Jodi failed to prove by a
preponderance of the evidence that Robert was three months in
arrears in child support payments as specified in 3 40-5-304, MCA,
and the 1989 amendments to 3 40-5-204, MCA, which provide for an
exception to the three-month delinquency requirement for income
deduction, was not applicable here because the statute's effective
date was January 1, 1990, 2) granted in part and denied in part
Jodi Is Motion to Increase Child Support, with the court taking into
consideration Robert's children from a subsequent marriage, and 3)
granted in part and denied in part Jodi's motion for attorney fees
based upon her partial success of this court action. From these
decisions, Jodi appeals.
1 Did the District Court err in denying appellant's Petition
.
for Income Deduction?
In her Petition for Income Deduction, Jodi requested that
Robert be subject to withholding of his income regarding his child
support payments, based upon his still outstanding pre-1987
delinquent child support obligation and the disputed child support
payments following the June, 1987 oral agreement, under § 40-5-
301, et. seq., MCA. Income deduction, however, is allowed only
when payments are considered delinquent. Section 40-5-304, MCA,
provides :
Nonpayment of child support required by any
order of a district court or by a similar
order of a court of another jurisdiction
becomes delinquent under this part when the
amount owed is equal to 3 months of child
support payments.
The District Court found that Jodi did not prove that Robert was
delinquent in an amount equal to three months of child support
payments because of the intervening January 7, 1987 Stipulation
and Order, which dealt with the pre-1987 delinquency and altered
the 1981 Agreement. Additionally, because the terms of the 1987
oral agreement are disputed and the agreed upon amount of Robert's
child support payment is unclear, the District Court held that Jodi
did not prove by a preponderance of the evidence that Robert was
delinquent in an amount equal to three months of child support with
regard to any child support payments due after June, 1987.
Jodi, however, argues that it does not matter whether Robert
was delinquent in an amount equal to three months of child support
under the January 7, 1987 Stipulation and Order, and the 1987 oral
agreement; it matters only that Robert was over three months
delinquent under the 1981 Agreement. We disagree and hold that
Robert is not delinquent in an amount equal to three months in his
child support obligation because of the intervening January 7, 1987
Stipulation and Order, as well as the 1987 oral agreement, both of
which altered the terms of the 1981 Agreement. To hold otherwise
would result in repeated litigation with regard to modification of
agreements, stipulated and approved by court order, and executed
oral agreements.
Jodi further argues that even if Robert is not determined to
be three months delinquent in child support payments, Robert is
still subject to income deduction because of the 1989 amendments
to 5 40-4-204, MCA, which provide for automatic withholding of
child support payments with regard to modifications of existing
child support agreements. See 5 40-4-204(5), MCA.
The District Court held that these 1989 amendments to 5 40-
4-204, MCA, were inapplicable to the facts of this case because
the amendmentst effective date was January 1, 1990, nearly one
month after the final decision in this matter. Jodi, however,
argues that the 1989 amendments are applicable because their
effective date was October 1, 1989.
The District Court relied on opinion letters issued by the
Department of Social and Rehabilitation Services and the Montana
Legislative Council when it found that the effective date was
January 1, 1990. These letters, which have no legal effect, state
that the drafters of the 1989 amendments intended the effective
date to be January 1, 1990, in order to allow the Child Support
Enforcement Division time to plan and prepare the collection
process. The opinion letters cite 5 40-5-411 ( 1(a), MCA, to
support their position, which provides that January 1, 1990, is the
effective date with regard to the 1989 amendments.
However, 9 40-5-411 (1)(a) specifically excepts 5 40-4-204,
MCA, from this effective date of January 1, 1990. Additionally,
the enabling legislation of the 1989 amendments, Laws of Montana,
Ch. 702, 5 32 (1989) provides:
Applicability. [This act] applies to child
support orders and modifications of child
support orders issued after September 30,
1989.
Therefore, we hold that the effective date for the 1989 amendments
of 5 40-4-204, MCA, was October 1, 1989. Here, because the
District Court's Memorandum and Order on Income Deduction, Child
Support and Attorney's Fees was dated December 7, 1989 and filed
December 11, 1989, the 1989 amendments of 5 40-4-204 are ap-
plicable, and Robert is subject to automatic income withholding.
Robert further argues that if the 1989 amendment applies, he
falls within the exception provided in 5 40-4-204(5)(b)(i), MCA:
(b) Income is not subject to automatic with-
holding if:
(i) the obligee or obligor demonstrates and
the court finds that there is good cause not
to require automatic income withholding
. . . a
Robert asserts that since the 1987 oral agreement, he has consis-
tently paid $180.00 monthly child support payments to Jodi, and
this constitutes good cause not to require automatic withholding.
We disagree. Because the amount agreed upon in the 1987 oral
agreement is disputed by the parties and the District Court did not
determine the amount, Robert's consistent monthly payment of
$180.00 does not constitute good cause not to require automatic
income withholding. We therefore reverse the District Court's
Order Denying Income Deduction, and remand this case for proceed-
ings consistent with this opinion.
2. Did the District Court err in determining that retroactive
child support increases should be effective January 1, 1988, rather
than January 1, 1987?
In her Motion to Increase Child Support, Jodi's request
included a retroactive increase in child support for 1987, based
upon the Guidelines for Determining Child Support and Robert's
increased income for those years. The District Court denied the
retroactive increase in child support for 1987, finding that the
first modification in child support should be considered as of
January 1, 1988, because of the January 7, 1987 Stipulation and
Order. In the January 7, 1987 Stipulation and Order, Robert agreed
to increase his child support and included Robert's then current
income based on his December, 1986 earnings. The District Court
held that it was not a material breach of the January 7, 1987
Stipulation and Order for Robert to fail to report his monthly
earnings on January 1, 1987, because he had just reported his
earnings the previous month and had just renegotiated his child
support payment based on those earnings.
We agree with the District Court's reasoning and hold that the
court properly denied Jodi's request for a retroactive child
support increase for 1987. There remains, however, an unresolved
issue regarding the child support payments from June, 1987 through
December, 1987. The June, 1987 oral agreement modified the amount
of child support, but Jodi and Robert disagree as to the agreed
upon amount. The District Court failed to determine this amount.
We therefore remand this case to the District Court to determine
the modified amount of child support under the 1987 oral agreement,
which will affect the child support payments from June, 1987
through December, 1987.
3. Did the District Court err in determining 1988 child
support to be $235.00 per month and 1989 child support to be
$255.00 per month?
Jodi additionally requested retroactive increases in child
support for 1988 and 1989 in her Motion to Increase Child Support,
based on the Guidelines for Determining Child Support and Robert's
income for these years. According to Jodi's calculations, Robert
should have paid $337.84 a month in 1988, and $386.12 a month in
1989. The District Court modified Jodi's request, taking into
consideration the fact that Robert had remarried following his
divorce from Jodi and had two subsequent children to support.
Based on this consideration, the District Court modified Jodi's
request, and increased Robert's child support to $235.00 a month
for 1988 and $255.00 a month for 1989. Considering subsequent
children when determining an increase in child support contradicts
Part 13 of the Guidelines for Determining Child Support (Guide-
lines):
when this guide is being used to reevaluate a
prior child support order for modification,
the position is taken that the parent's prior
child support obligations have absolute prece-
dence over the needs of a new family.
Jodi argues that the District Court abused its discretion when it
did not apply Part 13 of the Guidelines and considered Robert's
subsequent children when determining Robert's increase in child
support.
Section 40-4-204 (3)(a) and (b), MCA, provides:
(a) Whenever a court issues or modifies an
order concerning child support, the court
shall determine the child support obligation
by applying the standards in this section and
the uniform child support guidelines adopted
by the department of social and rehabilitation
services pursuant to 40-5-209, unless the
court finds by clear and convincing evidence
that the application of the standards and
guidelines is unjust to the child or to any of
the parties or is inappropriate in that par-
ticular case.
(b) If the court does not apply these stan-
dards and guidelines to determine child sup-
port, it shall state its reasons for finding
that the application of such standards and
guidelines is unjust to the child or a party
or is inappropriate in that particular case.
Hence, a court is not bound to apply the Guidelines if the court,
by clear and convincing evidence, finds that the application of
the Guidelines would have an unjust result to the parties or
siblings. See also, In Re the Marriage of McFarland (Mont. 1989) ,
783 P.2d 409, 412, 46 St.Rep. 2060, 2064. Here, the District
Court found that wcommon sense and equityn demanded the considera-
tion of Robert Is two subsequent children whom he must also support.
Clearly the District Court did not apply the Guidelines to avoid
an unjust result. Accordingly, we hold that the District Court did
not abuse its discretion in considering Robert's subsequent
children, when it modified Jodi's request for a retroactive
increase in child support for 1987 and 1988.
4. Did the District Court err in awarding the appellant's
attorney fees of $1,125.00?
In Jodi's Motion for Attorney's Fees, Jodi requested reason-
able attorney fees in the sum of $3,953.22 with regard to this
action. This sum was later reduced to $3,620.72 due to errors in
fee calculations. Both the 1981 Agreement and the January 7, 1987
Stipulation and Order provide that if either Jodi or Robert
initiate proceedings with regard to the 1981 Agreement or Stipula-
tion and Order, the unsuccessful party will be responsible for the
attorney fees of the successful party. Additionally, 5 40-4-110,
MCA, provides that the court:
may order a party to pay a reasonable amount
for the cost to the other party of maintaining
or defending any proceeding under chapters 1
and 4 of this title and for attorney's fees
The District Court modified Jodi's request for attorney fees, based
upon Jodi Is success in this matter and 5 40-4-110, MCA, and awarded
her costs and expenses of $264.87 and attorney fees of $1,125.00.
Jodi argues that the District Court abused its discretion when it
modified her request for attorney fees.
When reviewing a district court Is award of attorney fees, this
Court determines whether substantial evidence supports the district
court's findings. In Re the Marriage of Brown (1978), 179 Mont.
417, 427, 587 P.2d 361, 367 (citations omitted). Here, we hold
that, based upon the 1981 Agreement and the 1987 Stipulation and
Order, along with 5 40-4-110, MCA, the District Court did not abuse
its discretion when it modified Jodi's award of attorney fees.
Affirmed in part, and reversed and remanded in part.
if-----'-
Chief J u s t i c e
12
We concur: