NO. 94-360
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
IN RE THE MARRIAGE OF
PAULETTE M. BRANDON,
ROBERT A. BRANDON.
APPEAL FROM: District Court of the Twelfth Judicial District,
In and for the County of Hill,
The Honorable Peter L. Rapkoch, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Daniel A. Boucher, Altman & Boucher, Havre, Montana
For Respondent:
Chris R. Young, Young, Brown & Richardson, Havre,
Montana
Submitted on Briefs: February 23, 1995
Decided: May 9, 1995
Filed: :.
Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal from a decision by the Twelfth Judicial
District Court, Hill County, concerning modification of the court's
initial dissolution order with regards to maintenance and child
support. We affirm in part and reverse in part and remand.
The following two issues are dispositive of the case:
I. Did the District Court err by not using the Uniform Child
Support Guidelines?
II. Did the District Court abuse its discretion by denying the
husband's Motion to Terminate Maintenance?
Paulette Brandon (Paulette) and Robert Brandon (Robert) were
divorced in 1986 after twenty-two years of marriage. Paulette
retained physical custody of the two children, a son and a
daughter, born to the marriage. At the time of the dissolution,
Paulette worked as a beautician for only two and one half days per
week for a total of $480 per month. Due to an increasing health
deterioration caused by a double curvature of the spine, she had to
leave her work as a beautician and take a job with the State of
Montana as an inspector of beauty salons. The State job is full
time, paying about $20,000 per year, and requires her to travel a
good deal of the time.
Robert owns his own drapery and floor covering business and is
remarried. Robert's total income for the last three years was
$198,000 plus, or an average of $66,000 per year. Robert has been
paying $300 per month for maintenance and until the daughter
reached the age of majority, $350 for child support for two
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children. The daughter reached the age of majority in 1990, but
the son, Kelly, is still a minor.
When Paulette began working full time she was required to move
from Havre to Helena. Kelly remained in Havre living with his
father. Robert did not stop the child support payments to Paulette
despite Kelly living with him.
On November 9, 1993, almost two years after Kelly began living
with his father, Robert moved the court for modification of
provisions regarding custody, child support, and maintenance. On
May 23, 1994, the court issued its Findings of Fact and Conclusions
of Law stating that Robert must continue to pay maintenance to
Paulette but that Robert could stop paying child support for those
months he had custody of Kelly. The court also determined that
Paulette did not have to pay support for Kelly.
Robert appeals the court ruling on maintenance and lack of
support for Kelly.
1.
Did the District Court err by not using the Uniform Child
Support Guidelines?
Robert argues that Paulette failed to present evidence to
warrant non-application of the Guidelines. According to Robert,
the court is required to use the Guidelines and the Guidelines
require that Paulette pay at least a minimal amount of child
support.
Paulette contends that she does not make enough money to
support herself and that she should not have to pay child support.
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According to Paulette the District Court did give reasons for
deviating from the Guidelines.
The District Court made various findings and conclusions with
regards to the income earning capacity of the parents. We review
the findings of the District Court as to whether the findings are
clearly erroneous. Marriage of Eschenbacher (1992), 253 Mont. 139,
831 P.2d 1353. Conclusions of law are reviewed to see if the court
interpreted the law correctly. In re Marriage of Barnard (1994),
264 Mont. 103, 870 P.2d 91. The court also made a determination
that modification of maintenance was not warranted because its
former decree was not unconscionable. A district court's overall
decision on modification of child support awards is determined by
whether the district court clearly abused its discretion. A
district court's overall decision on modification of child support
awards is determined by whether the district court clearly abused
its discretion. Marriage of Kovash (1995), 52 St.Rep. 280.
In its conclusions of law, the court stated that:
2. The Court having found and concluded that the
application of the statutory standards of Section 40-4-
204, MCA, and Uniform Child Support Guidelines are
inappropriate in this case, it is hereby ordered that the
Petitioner [Paulette] shall not be required to pay past
or future child support to the Respondent [Robert] for
the times during which he has custody of Kelly.
The court alludes to its findings of fact when justifying its
deviation from the Guidelines but it does not give us written
specific findings. The Guidelines must be used in all cases.
Section 40-4-204(3) (a), MCA. The court must produce "clear and
convincing" evidence pursuant to § 40-4-204(3) (a), MCA, in order
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to justify its failure to follow the Guidelines. While the court
issued findings, it did not do so in connection with its decision
to deviate from the Guidelines.
In the Findings of Fact, the court stated that:
11. A combination of the Petitioner's declining
health, physical limitations, limitations of
employability and skills will cause the further decline
in her standard of living . . . .
Despite this finding, other findings state that Paulette has a full
time job which she likes and which nets her $900 take home pay per
month, twice what it was during the 1986 dissolution. During the
division of the marital estate in 1986, she received approximately
$170,000 in marital assets. In addition to this, she has no
responsibility for either child now, the only minor son, at 16, is
living with his father for most of the year. The daughter is an
adult and married herself
It is regrettable that Paulette suffers double curvature of
the spine. But she is managing to work full time despite this
malady. The court cannot base its determination of whether to use
the Guidelines upon mere speculation that Paulette's health may
deteriorate in the future.
The Guidelines themselves point out that:
REBUTTABLE PRESUMPTION (1) The guideline creates a
presumption of the adequacy and reasonableness of child
support awards. However, every case must be determined
on its own merits and circumstances and the presumption
may be rebutted by evidence that a child's needs are not
beins met.
(2) . . Any consideration of a variance from the
guidelines must take into account the best interests of
the child.
(3) A court or administrative hearing officer may find
evidence to rebut the presumption and vary from the
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guidelines in a particular case onlv if the decree,
separation order or support order contains a specific
written findinq showinq justification that application of
the quidelines would be unjust or inappropriate.
(4) Findings that rebut and vary the guidelines must
include a statement of the amount of support that would
have been ordered under the quidelines without a
variance.
(5) A court or administrative hearing officer may vary
from the guidelines based on a stipulation or agreement
of the parties only if the stipulation or aqreement meets
the followins criteria:
(a) it is in writin executed b the arties; (b) the
parties have siqned the stipulation or aqreement free of
coercion; (c) it contains specific iustification as to
why application of the quidelines is uniust or
inappropriate; (d) it contains a statement of the amount
of support that would have been appropriate under the
guidelines without the variance.
i7j .
A support order granting a variance shall provide
that upon termination of the circumstances which justify
the variance, the support amount shall immediately be the
amount which would have been ordered under the guidelines
without the variance. (Emphasis added.)
46.30.1507, ARM. The court did not consider the majority of the
above criteria. The court also did not provide us with a total for
support that Paulette should pay according to the Guidelines, had
the court not deviated:
MINIMUM SUPPORT OBLIGATION (1) Except for parents with
extremelv low net income, a specific minimum contribution
towards child support should be ordered in all cases even
though a parent does not have sufficient net income to
meet their own self support reserve needs. (Emphasis
added.)
46.30.1538, ARM.
On remand the court must focus on the above rules from the
Guidelines. Further, the court must follow the Guidelines unless
it specifically sets out the "clear and convincing" proof it is
using to deviate from the Guidelines. Even if the court decides on
remand that Paulette need not pay support, according to the
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Guidelines, it must at least make a determination of what the
support would have been if the court had followed the Guidelines.
Likewise, the court must make the same determination in terms of
support from Robert for those times in which Kelly lives with his
mother
We conclude that the District Court made a legal err when it
deviated from the Uniform Child Support Guidelines and, therefore,
we must remand this case for a further determination of child
support due from each parent based upon the Guidelines. If the
court on remand chooses to deviate from the Guidelines, it must do
so with specificity and by presenting "clear and convincing"
evidence for such deviation.
II.
Did the District Court abuse its discretion by denying the
husband's Motion to Terminate Maintenance?
Robert argues that he should not have to pay support to
Paulette because she is now employed full time. Paulette argues
that though she is employed full time she does not make enough
money to sustain herself.
The District Court determined that although Paulette did work
full time, her financial condition was not sound. The District
Court stated in Finding #15:
The Court further finds that the Respondent should
continue to pay maintenance to Petitioner in the amount
of $300.00 per month because there has not been a showing
of changed circumstances so substantial and continuing as
to make the terms concerning maintenance unconscionable.
The evidence is to the contrary. Respondent's standard
of living is improving while Petitioner's is
deteriorating.
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Also, the court's Conclusion #3 states:
The Court concludes that the maintenance order set forth
in the Decree should continue in effect due to the
inability of the Petitioner to meet her adequate needs
under the circumstances independently; the standard of
living established during the marriage, the duration of
the marriage, her age and physical condition, and the
ability of the Respondent from whom maintenance is sought
to meet his needs while meeting those of the Petitioner.
There has not been a showing of changed circumstances so
substantial and continuing as to make the terms
unconscionable, as required by § 40-4-208, MCA.
The court then ordered:
The Court having found and concluded that there has not
been a showing of changed circumstances so substantial
and continuing as to make the terms of the Decree's
maintenance provision unconscionable, it is hereby
ordered that Respondent shall continue paying maintenance
to the Petitioner in accordance with the Decree.
Respondent is ordered to make up any past child support
payments not paid.
The burden is on Robert to show that circumstances have
changed so substantially from the time of the original decree that
the terms of the original agreement are "unconscionable." Section
40-4-208, MCA. Robert's entire argument rests on the fact that
Paulette is now employed full time and can afford to care for
herself
The record indicates that this was a marriage that lasted 22
years. The record also shows that Paulette was instrumental in
helping to sustain the carpet and drape business from which Robert
now derives an average income over the years of $45,000 per year,
and more for the last three years. It is true that instead of $480
per month Paulette now brings home over $900 per month plus up to
$9,000 per year from interest and reimbursement for her travel
expenses. However, this still does not begin to approach the
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standard of living that she had when she was married to Robert, nor
that Robert has currently. Nothing that Robert presented to the
court shows that the $300 per month amount of maintenance
originally set by the court is in any way unconscionable.
We conclude that Robert has failed to meet his burden to prove
that the $300 per month that he provides Paulette is
unconscionable.
We hold that the court did not abuse its discretion in failing
to grant the husband's request to terminate maintenance.
This case is affirmed in part and reversed in part and
remanded for proceedings to determine Kelly's proper child support
from both parents.
We Concur: