NO. 93-647
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
IN RE THE MARRIAGE OF
DIANE STROOP GINGERICH,
Petitioner and Respondent,
and
HUGH D . STROOP,
Respondent and Appellant
APPEAL FROM: District Court of the ~ i g h t hJudicial District,
In and for the County of Cascade,
The Honorable Joel G. Roth, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Tonja D . Schaff, Attorney at Law; Richard Dzivi,
P.C., Great Falls, Montana
For Respondent:
Daniel L. Falcon, Attorney at Law; Matteucci, Falcon
Squires & Lester, Great Falls, Montana
Submitted on Briefs: December 1, 1994
Decided: December 20, 1994
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.
Hugh D. Stroop (Husband) appeals the September 24, 1993 order
of the District Court of the Eighth Judicial District, Cascade
County, modifying his and Diane Stroop Gingerich's (Wife) 1982
decree of dissolution. We affirm in part, reverse in part, and
remand for further consideration consistent with this opinion.
Six issues are presented:
1. Did the District Court err in modifying the 1982 Decree of
Dissolution based on its conclusion that there were changes in
circumstance so substantial and continuing as to render the Decree
unconscionable?
2. Did the District Court err in adopting verbatim Wife's
findings of fact, conclusions of law, and order modifying decree?
3. Did the District Court err in increasing the length of
time Husband must pay child support?
4. Did the District Court err in computing the proper child
support that Husband is required to pay?
5. Did the District Court err in awarding interest on back
due child support?
6. Did the District Court err in awarding Wife attorney's
fees?
A decree dissolving the marriage of Husband and Wife was
entered on May 20, 1982 with issues pertaining to custody,
property, and child support to be decided and entered later. The
parties entered into a custody, support and property settlement
agreement (Agreement) dated November 4, 1982, which provided that
child support payments were to be made the first of each month to
the Clerk of the District Court. The Agreement was approved of and
incorporated by reference in a decree of dissolution (1982 Decree)
entered on November 29, 1982.
The 1982 Decree provided Husband and Wife with joint legal
custody, with Wife to have physical custody of the couple's three
children. Husband was given visitation rights, and was ordered to
pay $133.33 per child per month in child support (totaling $400 per
month) until each child reached majority or was earlier
emancipated.
Since Husband's employment as a heavy equipment operator was
seasonal in nature, he agreed to set aside funds when he was
working to enable him to continue to meet his child support
obligation when he was not working. By the end of 1989, however,
Husband owed over $6,000 in past-due child support payments.
Husband alleges he did not dispute or attempt to avoid his child
support payment obligation, but claims he was not able to pay
because of his lack of employment. Husband has since met all his
delinquent child support obligations.
Dawn Cherie graduated from high school in May 1990, and
immediately moved away from Wife's home, resulting in her
emancipation. Stacia Noel reached majority on January 3, 1993,
approximately five months before she graduated from high school.
Husband stopped paying child support for her in January 1993.
Jamie Katherine reached majority on November 1, 1994, approximately
seven months before she graduates from high school.
Wife brought an action against Husband seeking to modify the
1982 Decree. She sought to increase the length of time and amount
of child support payments, payment of and interest on past-due
payments, and for attorney's fees. After two hearings on the
matter, the District Court adopted verbatim Wife's findings of fact
and conclusions of law. Husband moved the District Court to alter
or amend the adopted findings on the grounds that the findings were
clearly erroneous. The District Court did not act on Husband's
motion and Husband, concluding that the motion was denied pursuant
to Rule 59(g), M.R.Civ.P., appeals to this Court.
I
Did the District Court err in modifying the 1982 Decree of
Dissolution based on its conclusion that there were changes in
circumstances so substantial and continuing as to render the Decree
unconscionable?
In Gall v. Gall (1980), 187 Mont. 17, 20, 608 P.2d 496, 498,
this Court concluded that the essential requirement for modifying
child support is that it would be unconscionable to continue the
current child support payments. Wife claims that the record shows
a change of circumstances so substantial and continuing as to
render the 1982 Decree unconscionable. We disagree.
In support of the District Court's order, Wife cites In re
Marriage of Johnson (1983), 205 Mont. 259, 667 P.2d 438, for the
contention that this Court will reverse the district court only if
that court's findings are clearly erroneous in light of the
evidence in the record. In Marriaqe of Johnson, the wife, who
sought child support modification, testified about her changed
income and that inflation had increased the cost of living,
compared her monthly expenses to her monthly income, and testified
that expenses for raising their son had increased. Marriase of
Johnson, 667 P.2d at 439. Additionally, the husband had received
annual cost of living increases in his employment. Marriaqe of
Johnson, 6 6 7 P.2d at 439. The husband testified about his changing
income and compared his income to his expenses. That District
Court "relied upon the increased age and needs of the parties' son
and the effect that inflation had upon [the] wife's ability to buy
food, clothing, and other items necessary for raising the child."
Marriase of Johnson, 667 P.2d at 440. We concluded that those
factors had properly been relied on to uphold an increase in child
support. Furthermore, the District Court considered that the
wife's expenses exceeded her income. Marriase of Johnson, 6 6 7 P.2d
at 440.
Marriase of Johnson is distinguishable from the instant case
because, here, Wife did not present specific evidence about changed
economic circumstances or her actual increased need. Wife
testified that the cost of raising the three children had increased
but she presented no substantive evidence to prove this point or
demonstrate the degree of increase. Wife presented only general
testimony regarding her increased cost claims. To demonstrate that
she adduced sufficient evidence at trial to support the District
Court's findings, Wife relies on the ~istrict Court's order
modifying the decree. We fail to find adequate support in the
record for the District Court's findings for this issue. Wife did
not present sufficient evidence of a change in circumstances. Wife
testified that there was a change but did not demonstrate the
nature or extent of that change. Unlike the court in Marriaqe of
Johnson, the record does not "demonstrate that the changed
circumstances of the parties are so substantial and continuing as
to make the terms of the original decree unconscionable. " Marriase
of Johnson, 667 P.2d at 440.
Wife's counsel further elicited at the hearing that Wife's
proposed child support modifications, which the District Court
adopted verbatim, were based on the parties' incomes. These
calculations therefore gave no indication of the increase in their
cost of living. The record does not contain sufficient substantive
evidence of an increase or even a degree of increase of cost of
living. Wife therefore failed to establish an evidentiary basis
demonstrating that it would be unconscionable to continue the child
support payments established by the 1982 Decree. The change in the
parties' incomes in this case is not a sufficient basis to warrant
modification of the Decree.
We conclude that Wife did not meet her burden of proof that
rising costs or other factors were a sufficient change of
circumstances to justify modification of child support under §
40-4-208, MCA. Wife's evidence is not sufficient to support a
conclusion that there was a change in circumstances so substantial
as to render the 1982 Decree unconscionable. Wife heavily relies
on the standard of review we apply to decree modification cases,
citing In re Marriage of Barnard (Mont. l994), 870 P.2d 91, 51
St.Rep. 173. In Marriaqe of Barnard, we confirmed the importance
of district court discretion and that we would not overturn a
district court absent an abuse of discretion. Marriaae of Barnard,
870 P.2d at 93. In this case the record clearly demonstrates that
the District Court abused its discretion by concluding that
evidence presented supported the unconscionability of the 1982
Decree. The record does not support the District Court's
conclusion.
Our holding for this issue makes it unnecessary to address
issue two.
I11
Did the District Court err in increasing the length of time
Husband must pay child support?
It is well established that "unless the parties agree in
writing or the dissolution decree expressly provides for
termination of child support at a specified age or time, a parent
is not obligated to support an 18 year old or otherwise emancipated
child." Torma v. Torma (1982), 198 Mont. 161, 164, 645 P.2d 395,
397; citing Chrestenson v. Chrestenson (1979), 180 Mont. 96, 99,
589 p.2d 148, 149-50. The 1991 Legislature modified § 40-4-208(5),
MCA, but did not alter the substantive provision that parties may
establish a specific termination date. The statute provides that
a termination date may be "extended or knowingly waived by written
agreement or by an express provision of the decree." Section 40-4-
208 (5), MCA. In the instant case, the 1982 Decree provided that
child support payments would continue for the child until said
child attained the age of eighteen years or was earlier
emancipated. The District Court modified the 1982 Decree extending
Husband's child support payments during the period Jamie is not
emancipated, is enrolled in high school, and is not yet 19 years
old. The District Court also extended child support payments for
Stacia to include the months between her attaining majority and
graduating from high school.
Section 40-4-208(5), MCA, case law, and the parties' express
agreement all support the conclusion that Husband must pay child
support only until said child reaches age eighteen or is earlier
emancipated. The District Court abused its discretion by modifying
the 1982 Decree. There may be situations where the time for child
support payments should be extended, however the facts of this case
do not sustain that conclusion. Because of our holding in this
issue, we need not consider issue four.
v
Did the District Court err in awarding interest on back due
child support?
Husband was delinquent in his child support payments between
1986 and 1993; at one point he was over $6,000 in arrears. The
District Court ordered that Husband pay interest on past due child
support, based on Wife's calculations. Husband argues that he was
unable to earn sufficient income to pay his full child support,
that he did not attempt to reduce the amount of his child support
payments, that Wife knew his work was seasonal, and that he made a
good faith effort to pay the arrearage before court intervention.
Husband concludes that it would be inequitable to award interest to
Wife. We disagree.
We have consistently held that, absent contrary provisions in
a dissolution decree, interest on child support arrearage is
automatically collectable by judgment creditor spouse. In re
Marriage of Callahan (1988), 233 Mont. 465, 471-72, 762 P.2d 205,
209; In re Marriage of Gibson (1983), 206 Mont. 460, 466, 671 P.2d
629, 632; Torma, 645 P.2d at 398; Fitzgerald v. Fitzgerald (19801,
190 Mont. 66, 71, 618 P.2d 867, 870.
Here, both the Agreement and 1982 Decree were silent on the
issue of interest owing. Applying established law to the instant
case, we hold that Husband owes interest to Wife for late child
support payments. The amount of interest due is, however, not
clear from the record. Wife's proposed calculations appear to be
in error because they were based on the date the Clerk of Court
mailed payment to Wife rather than the date Husband made payment to
the Clerk of Court. Furthermore, additional calculations were
addressed at the hearings by both parties but were not entered into
evidence. Our award of interest payments is for late payments
based on the Agreement and 1982 Decree only and not for any
modified payments, the award of which we rejected above.
Therefore, consistent with this opinion, the District Court is
instructed to recalculate the interest payments.
This holding does not mean that interest payments are
available in every situation where child support payments are late.
While interest payments are automatically collectable, the district
court must have some latitude to calculate and award payments.
While we intend that child support payments should be timely, and
interest charged when payments become late, we do not intend that
this should be an avenue for frivolous or vindictive claims.
VI
Did the District Court err in awarding attorney's fees?
Section 40-4-110, MCA, provides that after considering the
financial resources of both parties the district court may order a
party to pay reasonable attorney's fees for maintaining and
defending specified dissolution, custody, and child support
proceedings. The standard of review of an order granting or
denying attorney's fees is whether the district court abused its
discretion. Marriase of Barnard, 870 P.2d at 95. We will not
disturb a district court's findings if there is substantial
evidence supporting those findings. Marriase of Barnard, 870 P.2d
at 95. We have held that such an award "must be based on
necessity, must be reasonable, and must be based on competent
evidence." In re Marriage of Zander (1993), 262 Mont. 215, 227,
864 P.2d 1225, 1233; citing Marriaqe of Barnard, 870 P.2d at 95.
The party requesting attorney's fees has the burden of
demonstrating the necessity of the award. In re Marriage of Durbin
(1992), 251 Mont. 5 1 , 6 2 , 8 2 3 P.2d 2 4 3 , 2 5 0 .
Wife failed to show that attorney's fees are necessary or that
the proposed fees are reasonable. Both parties expounded on the
burden created by the other party's litigation but neither
suggested the necessity or reasonableness of awarding fees. The
record does not contain substantial evidence to support the
District Court's findings. The record from this case does not
support an award of attorney's fees. Thus, the District Court
abused its discretion by awarding attorney's fees.
The judgment of the District Court is affirmed in part,
reversed in part, and remanded in accordance with this opinion.
Justices
Justice James C. Nelson dissenting.
I respectfully dissent from our decision on Issue 111.
As to the court's extending the Husband's child support
obligation, § 40-4-208(5),MCA (1981), the code in effect when the
parties executed their November 4, 1982 Custody, Support and
Property Settlement Agreement and when the court entered its
November 29, 1982 Decree of Dissolution, provided for the automatic
termination of child support at emancipation. That same section of
the code in effect when the Wife filed her petition for
modification, provides for child support during the time that an 18
year old child remains in high school. Section 40-4-208(5), MCA
(1991). In my view, reconciling our decisions in In re Marriage of
McFate (1989), 239 Mont. 492, 781 P.2d 759; and In re Marriage of
Bowman (1987), 226 Mont. 99, 734 P.2d 197, with the current code
leads to the conclusion that if, as here, the party seeking
modification of child support files his/her motion before the
support obligation is discharged by the child's emancipation,
reaching majority or the obligation under the decree and/or
separation agreement being fulfilled--i.e.,if the motion is filed
while the court still has jurisdiction over support--then, and in
that event, the court retains jurisdiction to modify support. See
also § 40-4-201(6), MCA. Moreover, here, the court specifically
retained jurisdiction to modify support in the 1982 Decree.
Accordingly, I conclude that the court had the authority to and
properly did extend the Husband's support obligation during the
times that Stacia and Jamie remained enrolled in high school and
until their graduation, but in no event later than the child's 19th
birthday
As our opinion readily acknowledges, "[tlhere may be
situations where the time for child support payments should be
extended . . ." If such a situation is not presented where the
custodial parent has not had a child support increase in eleven
years despite substantially increased costs of child rearing, where
she has lost the benefit of her tax exemptions by season of a
change in the IRS code, where she is attempting to raise two teen
age daughters still in high school, and where the non-custodial
parent's support payments do not comply with the Child Support
Guidelines, then one can on
Court has in mind.
L "
-
Justice Karla M. Gray joins in the fqregoing dissenh.
December 20, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid,
to the following named:
Richard Dzivi, Esq.; Tonja D. Schaff, Esq.
Richard Dzivi, P.C.
P.O. Box 1291
Great Falls, MT 59403-1291
Daniel L. Falcon, Esq.
Matteucci, Falcon, Squires & Lester, P.C.
P.O. Box 149
Great Falls, MT 59403-0149
ED SMITH
CLERK OF THE SUPREME COURT
. .
STATE OF MONTANA