No. 93-418
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
IN RE THE MARRIAGE OF
KAYLA COX,
Petitioner/Respondent,
and
JERRY COX,
Respondent/Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas M. McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Richard J. Carstensen, Attorney Pro Bono, Billings,
Montana
For Respondent:
R. V. Bottomly, Great Falls, Montana
Submitted on Briefs: June 16, 1994
Filed: -
AUG 5 1994 x
Decided: August 5, 1994
Justice James C. Nelson delivered the Opinion of the Court.
Jerry Cox, Appellant before this Court, and Respondent in the
District Court dissolution proceedings below (Jerry or Respondent),
appeals an order of the Eighth Judicial District Court, Cascade
County, dismissing without a hearing his motions regarding
visitation, support, and motion for a temporary restraining order.
Jerry also appeals the court's inclusion in its dismissal certain
rulings regarding child support, costs and attorney fees, and
conditions as to visitation. We reverse and remand for further
proceedings consistent with this opinion.
Jerry raises two issues on appeal:
1. Did the District Court err in denying Respondent a
hearing on his motions to modify visitation, child
support, and motion for a temporary restraining order?
2. Did the District Court err by including various
rulings in its Order of Dismissal relative to child
support, attorney fees and costs, and conditions as to
visitation when it did not hear any evidence concerning
the rulings.
This action began as a dissolution proceeding in June of 1988,
when Kayla Cox (Kayla or Petitioner), filed a Petition for
Dissolution. A Final Decree of dissolution was filed on March 8,
1989. The decree awarded Jerry visitation rights and ordered him
to pay child support for the parties1 two minor children.
In the spring of 1990 Jerry became disabled and applied for
Social Security benefits. In October of 1992, he was awarded
Social Security disability benefits, retroactive to April 1990. On
November 12, 1992, Kayla had a Writ of Execution levied upon the
Social Security Administration to secure past due child support,
medical care and attorney fees for the sum of $26,815.52. The writ
required that Jerry's obligation for past due child support be
satisfied from past-due Social Security benefits which were payable
to Jerry in a lump-sum. The writ also required the Social Security
Administration to withhold $300.00 per month from future disability
payments made to Jerry to satisfy the payment of the monthly child
support provided for in the decree.
On March 1, 1993, Jerry moved the court for a modification of
visitation and support and moved the court to issue a temporary
restraining order restraining Kayla from executing upon his Social
Security benefits until a hearing could be held concerning how the
Social Security benefits should be distributed. On May 17, 1993,
Kayla moved to dismiss Jerry's motion for modification on the
grounds that Jerry had no standing to request any relief, because
according to Kayla, he had refused to comply with any prior court
order connected to the dissolution and subsequent proceedings.
The parties appeared before the Honorable Thomas McKittrick on
May 27, 1993. Kayla was represented by counsel, and Jerry appeared
pro se. After hearing argument from Kayla's counsel supporting her
motion to dismiss, and Jerry's response to the argument, the
District Court dismissed the motion to modify without allowing
either party to present any evidence in support of their motions.
The District Court reduced to writing its ruling granting
Kayla's motion to dismiss in an order dated June 11, 1993.
Included in the Order of Dismissal were the following rulings: (1)
the lump sum Social Security benefits had been attached by the Writ
of Execution and so that issue was moot; (2) the lump sum Social
Security benefits were insufficient to fulfill Jerry's past due
child support obligation, and therefore he was still in default of
his obligation to pay child support and other liabilities imposed
under the decree in the amount of $11,197.96: (3) that the court
would not modify visitation or child support until Jerry complied
with orders of the court and until he paid in full his past child
support obligation, attorney fees and costs. The District Court
also made additional rulings as to visitation and ordered Jerry to
fulfill certain conditions, such as attend psychological testing
and undergo a home environment study, before the court would modify
visitation.
I. FAILURE TO PROVIDE A HEARING
The first issue Jerry raises on appeal concerns whether the
District Court erred in denying him a hearing on his motions to
modify. Jerry argues that before the District Court can dismiss
his motions, he is entitled to a hearing where he can present
evidence to support his motions.
The standard for this Court in reviewing discretionary trial
court rulings is whether the trial court abused its discretion.
Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 475,
803 P.2d 601, 603-04. While acknowledging the frustration of the
District Court (and of opposing counsel), as evidenced by the
record, we, nevertheless, conclude that the court's rulings at
issue here were an abuse of discretion.
A. CHILD SUPPORT
Jerry argues that the District Court erred when it denied him
the opportunity to present evidence in support of his motion to
modify child support. Child support provided for in a decree may
be modified "upon a showing of changed circumstances so substantial
and continuing as to make the terms uncon~cionable.~~
Section 40-4-
208(2) (b) (i), MCA. Accordingly, it is essential that an
evidentiary basis support any finding that it either would or would
not be unconscionable to continue the child support payments set
forth in the decree. Gall v. Gall (1980), 187 Mont. 17, 20, 608
P.2d 496, 498.
In the instant case there was no evidentiary basis for the
District Court's dismissal of Jerry's motion to modify. The
District Court summarily dismissed the motion without providing
Jerry the opportunity to present any evidence. According to the
statutory language, Jerry was entitled to make a showing of changed
circumstances. We therefore hold that the court abused its
discretion in denying Jerry this opportunity.
Kayla argues that Jerry does not come to the court with clean
hands as he did not voluntarily make his child support payments.
Therefore, according to Kayla, the District Court had the equitable
power to dismiss Jerry's motions without providing a hearing.
While we recognize the principle that one seeking equity must do
equity, and that the nonpayment of child support is inequitable,
our statutes do not require that child support obligations be
current, before a party petitions for modification. Section 40-4-
208, MCA; In re the Marriage of Carlson (1984), 214 Mont. 209, 214,
693 P.2d 496, 499.
B. VISITATION
Jerry also contends the District Court erred in dismissing his
motion for modification of visitation without providing him a
hearing on the motion. According to 5 40-4-217(3), MCA, a
visitation order may be modified Itwhenevermodification would serve
the best interest of the child." This Court has previously held
that this section contemplates the trial court hold a visitation
hearing and issue findings that modification would be in the
child's best interest. Strong v. Weaver (1984), 211 Mont. 320,
In the instant case the District Court did not hold a
visitation hearing. In addition, the District Court made the
following finding in support of its order dismissing Jerry's motion
to modify visitation:
The Court sees no reason to make any changes respecting
visitation or to modify child support obligations. The
Respondent is not in any position to request such
assistants [sic] from the Court until such time as the
Respondent gets into compliance with the Orders of the
Court and establishes a course of action that would
demonstrate an interest in visiting his children and
seeing to it that the past due child support obligation
is paid in full and to pay attorneys fees and costs
required to bring him into compliance with the Court's
Order.
It is apparent from court's order that the court conditioned
modification ofthe visitation arrangements set forth in the decree
upon Jerry's compliance with his child support payments. This
ruling was in error. See, In re the Marriage of Harper (1988), 235
Mont. 41, 46-47, 764 P.2d 1283, 1286; and State ex rel. Dewyer v.
Knapp (l984), 208 Mont. 19, 22, 674 P.2d 1104, 1106, affirmed in
Matter of Adoption of K.L.J.K. (1986), 224 Mont. 418, 421, 730
P.2d. 1135, 1137. Section 40-4-109, MCA, provides that visitation
and support are independent of each other. See also, 5 40-5-124,
MCA (1991), in effect at the time of the court's rulings.
Therefore we hold that the District Court erred in dismissing
Jerry's motion to modify visitation without holding an evidentiary
hearing.
11. INCLUSION OF ADDITIONAL RULINGS
The second issue Jerry raises on appeal concerns whether the
District Court erred by including various rulings in its Order of
Dismissal relative to child support, conditions as to visitation,
and attorney fees and costs, when it did not hear any evidence
concerning the rulings.
A. CHILD SUPPORT
Jerry contends that it was error for the District Court to
make a finding that he owed past due child support and other
liabilities imposed under the original decree in the amount of
$11,197.96, when no evidence supporting that determination was
presented to the court. It appears from the record that the
District Court simply adopted the arrearage figure set forth in
Kayla's brief and included that figure in its Order of Dismissal,
when it found Jerry was liable for $11,197.96 in unpaid child
support and other liabilities imposed under the original decree.
This Court has previously held that a trial court cannot base
child support upon speculation. Duffey v. Duffey (1981), 193 Mont.
241, 244, 631 P.2d 697, 699. (Citation omitted.) In the instant
case the District Court did not hear evidence from either party as
to the amount of child support arrearage. Because no evidence was
presented supporting its determination of the amount of child
support arrearage, we hold that the District Court's conclusion
that a portion of the $11,197.96 was due for past due child
support, was speculative and should not have been included in the
Order of Dismissal. Similarly, no evidence was presented
demonstrating the amount of other obligations Jerry is allegedly
responsible for according to the terms of the original decree.
B. VISITATION
In its Order of Dismissal, the District Court ruled that it
would not modify Jerry's visitation rights until he had fulfilled
the following conditions: (1) have a home environment study
conducted at his expense; (2) undergo psychological testing; (3)
communicate his visitation requests directly to Kayla, and not the
children; and (4) give sufficient advance notice of an agreeable
time and place of visitation before it could take place. Jerry
alleges it was error for the District Court to include conditions
as to visitation in its order when he was not given the opportunity
to testify or present evidence on the visitation issue. We agree.
Section 40-4-217(3), MCA, provides that a court may modify a
an order granting or denying visitation rights whenever it finds
modification would serve the best interests of the child. See also,
In re the Marriage of Firman (1980), 187 Mont. 465, 468, 610 P.2d
178, 180.
While in order to intelligently and fairly rule on a parent's
motion to modify visitation, the court may need to develop the
evidentiary record with the sort of information contemplated by (1)
and (2) of the court's order, and while, on the basis of the
evidentiary record before the court, it may ultimately be
appropriate for the court to condition visitation with the sorts of
requirements contemplated by (3) and ( 4 ) , it is equally clear that
such requirements and conditions can be imposed in connection with
a parent's motion to modify visitation only on the basis of
evidence developed in conjunction with a visitation hearing or
hearings of which the parties have appropriate notice and
opportunity to testify. Moreover, such conditions and requirements
may be imposed only if doing so would serve the children's best
interests. Stronu v. Weaver, 683 P.2d at 1331; In re the Marriaue
of Firman, 610 P.2d at 180.
We hold that the District Court erred by imposing the
referenced conditions and requirements without affording Jerry the
opportunity for a hearing on his motion and without determining
that such conditions and requirements would serve the best
interests of the children.
C. ATTORNEY FEES AND COSTS
The District Court awarded Kayla attorney fees and costs in
conjunction with her attempt to secure child support payments.
Jerry alleges it was error to include the award of attorney fees in
the Order of Dismissal when he was not given the opportunity to
present evidence to refute the claim. Again, we agree.
It is clear that a court may in its discretion, after
considering the financial resources of both parties, award attorney
fees incurred by a party in maintaining or defending a proceeding
to secure child support payments. See, 5 40-4-110, MCA. Moreover,
this Court will not disturb the award of attorney fees if it is
supported by substantial evidence. In re the Marriage of Barnard
(1990), 241 Mont. 147, 154, 785 P.2d 1387, 1391-92. The evidence
presented must demonstrate that the attorney fees and costs are
reasonable. In re the Marriage of Aanenson (1979), 183 Mont. 229,
236, 598 P.2d 1120, 1124. To make the showing, a hearing must be
held allowing for oral testimony, introduction of exhibits, and an
opportunity to cross-examine in which the reasonableness of the
attorney fees claimed is demonstrated. In re the Marriaqe of
Aanenson, 598 P.2d at 1124.
In the instant case the District Court did not hear any
evidence concerning attorney fees. In fact, the issue was never
raised at the May 27th hearing. We hold that the District Court
erred in awarding attorney fees and costs to Kayla when it did not
hear any evidence concerningthe necessity for or reasonableness of
the award.
In summary, while the sorts of rulings which the court made in
this case may be proper if supported by a record developed on the
basis of an evidentiary hearing and on due consideration of
applicable statutory criteria, it was error for the court to make
such rulings without an evidentiary hearing and without providing
the parties adequate opportunity to testify and present evidence.
Underlying the court's rulings in this case is its apparent
frustration with Respondent's failure to comply with prior court
orders. On that basis, Kayla argues in her brief that the District
Courtf rulings were proper under Rule 41(b), M.R. Civ.P. That rule
s
provides for involuntary dismissal of an action for, among other
things, "... failure of the plaintiff ...to comply with ...any order
of [the] court." Aside from the fact that Kaylafs motion to
dismiss Jerryfs motion to modify did not refer to Rule 41(b), and
is, thus, argued for the first time on appeal, we have held that
"... dismissal under Rule 41(b), M.R.Civ.P. is a harsh remedy.
Because the result is severe, courts should refrain from dismissing
an action or claim unless there is no other adequate remedy
available and where the facts sufficiently call for such a result."
Chisholm v. First Nat. Bank of Glasgow (1988), 235 Mont. 219, 220,
766 P.2d 868, 869. In this case there is another adequate remedy
available to the court in the event that Respondent wrongfully
fails or refuses to abide by the court's orders -- namely contempt.
Section 40-4-201(5), MCA; see, In re the Marriage of Robbins
(1985), 219 Mont. 130, 711 P.2d 1347.
REVERSED AND REMANDED FOR F
THIS OPINION.
We Concur:
&ief Justice
August 5, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
Richard J. Carstensen
Attorney Pro Bono
P. 0 . Box 2093
Billings, MT 59103-2093
R. V. Bottomly
Attorney at Law
P.O. Box 1788
Great Falls, MT 59403
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA