NO. 93-410
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
IN RE THE MARRIAGE OF
JANET H BARNARD,
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Petitioner and Appellant, @,
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TIMOTHY BARNARD,
Respondent
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:
Jennifer Bordy, Attorney at Law,
Bozeman, Montana
For Respondent:
James H Goetz and Richard J. Dolan,
Goetz, Madden & Dunn, Bozeman, Montana
Submitted on Briefs: January 20, 1994
Decided: March 10, 1994
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
Janet Barnard moved the District Court for the Eighteenth
Judicial District in Gallatin County to modify the amount of child
support provided for in its prior decree which dissolved her
marriage to Timothy Barnard. The District Court denied her motion.
She appeals from that order. We affirm the District Court.
Janet raises numerous issues on appeal. However, because of
our resolution of the first issue, it is not necessary that they
all be discussed. Therefore, we restate the dispositive issues on
appeal as follows:
1. Did the District Court abuse its discretion when it
concluded that the original award of child support was not
unconscionable?
2. Did the District Court err when it concluded that the
Montana Child Support Guidelines did not apply?
3. Did the District Court err when it refused to award
attorney fees to appellant?
FACTUAL BACKGROUND
Janet and Timothy were married on July 5, 1980. Their
daughter Shanon was born on June 9, 1981. The parties' marriage
was dissolved on May 27, 1987, by a decree which incorporated a
custody, support, and property settlement agreement. The joint
custody arrangement providedthat Shanon would reside 50 percent of
the time with each parent. The parties also agreed that Timothy
would pay child support in the amount of $400 per month from
June 1985 through June 1989; $425 per month from July 1989 through
June 1993; and $475 per month from July 1993 until Shanon reached
the age of 18. In addition, Timothy was to maintain major medical
and hospital insurance for Shanon's benefit and agreed to pay for
all dental, medical, and hospital bills not covered by insurance.
Timothy was obligated to maintain life insurance for Shanon's
benefit in the amount of $75,000, and the parties agreed to share
the costs of Shanon's extracurricular activities.
From the marital property, Timothy received the family home
valued at $250,000, along with the obligation for its mortgage.
Janet received jewelry, furniture from the home, and $55,000 in
cash. Additionally, Janet received $1,000 from Timothy to pay her
attorney fees. She received no award of maintenance.
On May 27, 1992, Janet filed a motion to modify TimotlIy8s
child support obligation. She alleged that, from the time of the
dissolution, her financial ability to provide for her daughter's
needs had decreased, while Timothy's financial situation had
greatly improved through the success of his construction company,
Barnard Construction. After two days of testimony, the District
Court issued its findings of fact, conclusions of law, and
memorandum and order on May 21, 1993, and denied Janet Is motion for
modification of child support and request for attorney's fees.
STANDARD OF REVIEW
The standard of review for findings of fact in child support
modification cases is whether the district court abused its
discretion. In re Mamage of Durbin (l992), 251 Mont. 51, 55, 823 P.2d
243, 245. We review conclusions of law to determine whether the
3
district court's interpretation of the law was correct. In Re
Mam'ageofSunis (1993), 258 Mont. 2 6 5 , 269, 852 P.2d 616, 619. When
a district court engages in canscionabilfty determinations, the
result is neither a pure finding of fact nor a pure legal
conclusion. The determination is a discretionary action, and as
such, is presumed to be correct and will not be overturned by this
Court absent an abuse of discretion. See In re Marriage of Hamilton
(1992), 254 Mont. 31, 36, 835 P.2d 702, 704-05.
ISSUE 1
Did the District Court abuse its discretion when it concluded
t h a t the o r i g i n a l award of child support was not unconscionable?
To justify modification of the original child support award,
Janet had the burden of showing changed circumstances so
substantial and continuing that the terns of the original decree
are now unconscionable. Section 40-4-208(2)(b), MCA.
The District Court found that MITimothyls] income has
increased substantially since his divorce from [Janet]." Janet
argued that her own financial circumstances had considerably
worsened. Although her financial affidavit and guideline
worksheets reflect no income, Janet affered exhibits which showed
that between 1985 and 1991, her monthly expenses averaged $2,600.
She admitted at trial that despite having reported losses, she was
able to withdraw money for her living from her tanning salon
business. Thus, the District Court found that Janet had an
after-tax, disposable income of $2,400 per month ($28,800 per
year) , which did not include amounts received for child support.
Although Janet protests that the court improperly imputed this
income to her, w e conclude that reasonable inferences from the
evidence presented support the District Court's finding regarding
Janetls income.
It is obvious that Timothy's financial success constitutes a
change in circumstances. However, this fact, by itself, does not
render the prior child support award unconscionable, In Green v
.
Green (19781, 176 Mont. 532, 579 P.2d 1235, we declined to define
the word %mcons~ionable~~ purposes of modifying child support
for
and declared that "[w]e will follow the policy of determining on a
case to case basis, from the underlying facts, whether the evidence
Green, 579 P.2d at 1238-39.
is sufficient to be uncon~cionable.~~
The Court heard extensive testimony with regard to the
underlying facts in this case. Janet testified that if awarded an
increase in child support, she would provide more clothes and a
more comfortable home for Shanon, purchase a different vehicle, and
obtain medical insurance for herself. She complained of a
disparity between the home she was able to provide Shanon and
Timothy's home.
The District Court found that, although there is a significant
difference between the sizes of Timothyls and Janet's homes, the
apartment Shanon shares with her mother is a wcomfortable and
adequate household for two people.I1 It further found that the
current amount ~imothypays Janet for child support is comparable
to the amount he himself spends on Shanon while she is in his
custody, and that the total amount ($818 plus housing and
transportation) approximates the standard of living Shanon would
have enjoyed had the marriage not been dissolved.
our review of the record reveals that there is no dispute that
Shanon is a psychologically healthy child. There is no dispute
that all of Shanonlscurrent needs are being met under the current
child support arrangement, regardless of whether she is at her
mother's home or her father's home. On cross-examination, Janet
acknowledged that Shanon did not need clothes; that her school
needs were met; that she engaged in extracurricular activities; and
that she had toys, musical equipment, television, and books. Janet
could identify no physical, emotional, or material need which
Shanon was going without.
We conclude that the District Court did not abuse its
discretion when it found and concluded that the original child
support award was not unconscionable.
ISSUE 2
Did the District Court err when it concluded that the Montana
Child Support Guidelines did not apply?
Because Janet filed her motion two months before the 1992
Uniform Child Support Guidelines became effective, the District
Court informed the parties that the 1990 guidelines would govern,
stating that it was "the Court's policy . . . to use the old
guidelines in cases filed before the amended guidelines became
effective," On appeal, Janet correctly argues that in the absence
of circumstances making the latest guidelines inapplicable, the
District Court should have determined child support obligations
according to the guidelines in effect at the time the court made
its decision. In re Mamage of D.F.D. and D.G.D (Mont. 1993), 862 P.2d
368, 379, 50 st. Rep. 1280, 1288: PatemityofKL. (1993), 259 Mont.
187, 190, 855 P.2d 521, 523 (citing ZnreMam'ageofJohnston (1992)~255
Mont. 421, 843 P.2d 760 (court must state reasons for finding that
the amended SRS guidelines are not applicable)).
However, we conclude that because there was no modification of
the original child support award, it is irrelevant which set of
guidelines would have applied.
Section 40-4-204, MCA, provides in relevant part as follows:
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.
Because the District Court found that the original amount of child
support was not unconscionable, it did not modify the child support
and was not, therefore, required to refer to 5 40-4-204, MCA. Only
when the court has decided to modify an order, or when it first
issues an order, does this statute apply. Otherwise, the new
guidelines alone would serve as a basis for modification. As this
Court recently held, however, the mere adoption of new guidelines
is not a sufficient change of circumstances to justify modification
of child support under 5 40-4-208, MCA. InreMam.ageoffikes (1993),
258 Mont. 324, 852 P.2d 655.
Although the District Court erroneously discussed why the new
child support guidelines should not apply, it nevertheless reached
the correct decision. We will uphold a district court's decision,
if correct, regardless of the reasons given for the result. District
No. 55 and High School District No. 55-H v. Musselshell County ( 1990), 245 Mont .
525, 527, 802 P.2d 1252, 1253.
We conclude that the District Court correctly disregarded the
new child support guidelines when it arrived at its decision that
the original child support award was not unconscionable.
ISSUE 3
Did the District Court err when it refused to award attorney
fees to appellant?
Our standard of review of an order denying or granting a
motion for attorney fees and costs is whether the district court
abused its discretion. Burrk, 852 P.2d at 620. When reviewing the
discretion vested in the district court under § 40-4-110, MCA, this
Court will not disturb a district court's findings on appeal if
there is substantial evidence to support those findings. In re
Mam'age of Hall (lWO), 244 Mont. 428, 436, 798 P.2d 117, 122.
Section 40-4-110, MCA, gives the district court discretion to
award attorney fees and costs after it considers the financial
resources of both parties. " [A]n award of attorney fees under this
statute must be based on necessity, must be reasonable, and must be
based on competent evidence. l1 I re Mam'age of Zander (Mont. 1993), 864
n
P.2d 1225, 1233, 50 St. Rep. 1522, 1527. Furthermore, it is the
erson reques;ting attorney fees and costs who must make a showing
of necessity. Durbin, 823 P.2d at 250.
After reviewing the record, we conclude that the District
Court did not abuse its discretion, and therefore, affirm its
decision to deny Janet's motion for attorney fees.
We concur: ,
,
March 10, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Jennifer Bordy
Berry & Bordy
2631 W. Main St.
Bozeman, MT 59715
James H. Goetz, Esq.; Richard J. DolBn, Esq.
Goetz, Madden & Dunn, P.C.
35 N. Grand
Bozeman, MT 59715
ED SMITH
CLERK OF THE SUPREME COURT
BY: