No. 92-256
IN THE SUPREME COURT OF THE STATE OF MONTANA
IN RE THE MARRIAGE OF
ROBERT KUKES ,
Petitioner and Respondent, . ~
and
JANET KUKES,
Respondent and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Larry W. Moran, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Lyman H. Bennett 111; Morrow, Sedivy & Bennett,
Bozeman, Montana
For Respondent:
Thomas I. Sabo, Attorney at Law, Gallatin Gateway,
Montana
Submitted on Briefs: April 1, 1993
Decided: May 18, 1993
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.
This is an appeal from an order of the Eighteenth Judicial
District Court, Gallatin County, Montana. The order modified a
decree of dissolution of marriage. We reverse.
The former husband, respondent Robert Kukes (Robert) commenced
this action in 1989 by filing a petition for modification of the
1986 decree, seeking to reduce his child support obligation, share
the child's uncovered medical expenses equally with his former
wife, and clarify his visitation rights. Thereafter the former
wife, appellant Janet Kukes (Janet) filed a combination petition
for contempt and modification or clarification of the decree.
These petitions were heard by the District Court, which filed
findings of fact and conclusions of law and entered judgment
thereon. The decision granted Robert the relief prayed for, and
more than he prayed for, including additional relief as determined
by the court. This appeal followed.
Janet and Robert were married in Billings, Montana, in
November 1981. Their only child, Brittany, was born on August 17,
1984. She has a partial hearing loss and must wear two hearing
aids. The marriage was dissolved in Bozeman, Montana, on May 5,
1986. At the time of the dissolution, Robert was enrolled as an
undergraduate in the School of Engineering at Montana State
University (M.S.U.), while Janet was a graduate student in the
School of Education at M.S.U., seeking elementary teacher
certification. Janet received certification in December 1986 and
moved to Great Falls, Montana, where she taught elementary school
and eventually became a case manager for Quality Life Concepts,
Inc. Robert received an engineering degree in June, 1990 and
moved to Las Vegas, Nevada, where he was employed as an engineer at
the time of this appeal.
The parties entered a "marital and property settlement
agreement" in April 1986. This agreement was incorporated in the
decree of dissolution. It gave Janet sole custody of Brittany,
with Robert to have liberal visitation rights. Robert was to pay
child support at the rate of $300 per month, adjusted annually
based on the Consumer Price Index. He also agreed to maintain
major medical and hospital insurance for Brittany's benefit and to
pay all of her uncovered medical, dental, and optical expenses
until she reached the age of 21; to establish a trust fund for
Brittany at the First Security Bank in Bozeman and to contribute
$50 a month to that fund initially and $75 a month after he
graduated from college, until Brittany either used the fund for
college education or reached the age of 21; and to maintain an
$80,000 life insurance policy naming Brittany as the beneficiary.
As support and maintenance, Robert agreed to pay Janet's
expenses for four quarters as a full-time student, including
tuition, books, and living expenses. The total sum, $9,800, was to
be deferred until six months after Robert had finished college, at
which time Robert was to begin making monthly payments, including
interest at the annual rate of 10 per cent.
On April 19, 1989, Robert filed a petition for modification
alleging that he was a full time student without sufficient money
to pay child support as provided in the decree, and that he had
been denied liberal visitation rights. Janetmoved to dismiss this
petition, on the grounds that Robert had not shown changed
circumstances "so substantial and continuing as to make the terms
of the decree unconscionable," as 5 40-4-208(2) (b), MCA, requires.
Robert had been a full time student in 1986 when the decree was
entered, and he was still a full time student when he filed his
petition for modification. The District Court denied Janet's
motion on June 20, 1989, noting that the motion was "sound in many
respects, particularly on the change of the amount of child
support," but concluding that it should hear Robert's allegations
regarding denial of visitation and establish his visitation rights.
A hearing was set for April 30, 1990, but it was continued
without a date after Janet requested that the child support issue
not be decided until after Robert had completed his education.
Robert graduated in June 1990 and in July 1990 he moved to Las
Vegas .
On October 29, 1990, Janet filed a petition for contempt and
modification or clarification of the decree, alleging that she had
not received evidence of health insurance coverage for Brittany;
that Robert had not reimbursed her for medical expenses incurred on
Brittany's behalf; that Robert had borrowed $2,197.91 against his
life insurance policy and the insurance company had told her the
policy might be canceled; and that she had been unable to determine
whether Robert had been contributing to Brittany's trust fund as
provided in the decree of dissolution. The District Court heard
argument on this petition and on Robert's petition as well, on
February 11, 1991.
Janet presents seven issues referring to decisions not
supported by the evidence and constituting an abuse of discretion
by the District Court. We have restated them as follows:
1. Whether this Court's adoption of child support guidelines
constituted, in itself, a change of circumstances so substantial
and continuing as to make the terms of the decree of dissolution
unconscionable, as contemplated by 5 4 0 - 4 - 2 0 8 ( 2 ) , MCA.
2. Whether the District Court's findings of fact were
sufficient to demonstrate a change of circumstances so substantial
and continuing as to make the decree unconscionable, absent a
finding that the adoption of the guidelines satisfied the
requirement.
3. Whether the District Court erred in failing to consider
all of the relevant factors set forth in the applicable statutes
and child support guidelines.
4. Whether the District Court should have granted Robert
relief that he had not sought, when Janet had no opportunity for
contrary argument.
5. Whether the District Court erred in modifying Robert's
child support obligation retroactively.
6. Whether the District Court erred in failing to consider
Janet's prayer for attorney's fees.
7. Whether the District Court erred in failing to adhere to
the statutory requirements for income withholding and in failing to
advise the parties of the jurisdiction of the Department of Social
and Rehabilitation Services to review and modify child support in
the future.
As the first two issues both address the statutory standard
for modification of child support, we consider them together. The
question common to both is whether the District Court's
modification of child support was justified by a change of
circumstances so substantial and continuing as to make the terms of
the original decree unconscionable, as 5 40-4-208(2)(b), MCA,
requires, absent written consent of the parties.
We conclude that child support modification was not justified
in this case; therefore we do not address the remaining issues.
In its Finding of Fact No. 16 the District Court stated that
this Court's adoption of the guidelines was Itanevent constituting
substantial change of circumstances for [Robert]." This was the
court's only finding concerning changes in Robert's circumstances.
Thus, even taken in a light most favorable to Robert, the court's
findings of fact fail to show any change in Robert's circumstances
that would justify a reduction in the amount of child support below
the amount established in the original decree. Indeed, the record
suggests that Robert's circumstances improved substantially between
the time of the original decree, when he was a student, and the
time of the hearing on his petition for modification, when he was
employed as a civil engineer.
Our standard of review for an award of child support is that
a presumption exists in favor of the district court's
determination. We will reverse a district court's determination
only for an abuse of discretion. In re Marriage of Clingingsmith
(1992): 254 Mont. 399, 406, 838 P.2d 417, 421-22. With regard to
the district court's findings of fact, however, we have held that
" [elrror occurs when the court accepts one party s proposed
findings of fact without proper consideration of the facts and
where there is a lack of independent judgment by the court.1' In re
Marriage of Callahan (1988), 233 Mont. 465, 472, 762 P.2d 205, 209.
Here, the District Court clearly erred in failing to make findings
of fact that support its modification of child support.
In Gall V. Gall (1980), 187 Mont. 17, 20, 608 P.2d 496, 498
we stated that:
the essential requirement is that there be an evidentiary
basis to determine that it would be unconscionable to
continue the child support payments presently in effect.
Accord, In re Marriage of Forsman (1987), 229 Mont. 411, 747 P.2d
861: In re Marriage of Bliss (1980), 187 Mont. 331, 609 P.2d 1209.
We conclude that adoption of the guidelines was not in itself a
sufficient change of circumstances to justify modification of child
support under 5 40-4-208, MCA.
We reverse and remand for entry of an order consistent with
this opinion.
We concur:
May 18, 1993
CERTIFICATE OF SERVICE
I hereby certlfy that the following order was sent by United States mail, prepaid, to the
following named:
Lyman H. Bennett, I11
Morrow, Sedivy & Bennett
P.O. Box 1168
Bozeman, MT 59771-1168
Thomas I. Sabo
Attorney at Law
P.O. Box 396
Gallatin Gateway, MT 59730
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
BY: