Marriage of Durbin

NO. 94-501
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995

IN RE THE MARRIAGE OF
TERRI D. DURBIN, n/k/a TERRI D. WARD,
Petitioner and Respondent,
and
EDWIN D, DURBIN,
Respondent and Appellant.

APPEAL FROM: District Court of the Tenth Judicial District,
In and for the County of Fergus,
The Honorable Ed McLean, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Michael G. Moses, Moses Law Firm,
Billings, Montana
For Respondent:
Kevin T. Sweeney, Sweeney & Healow,
Billings, Montana

Submitted on Briefs: March 2, 1995
Decided: April 25, 1995
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.

Edwin Durbin appeals the findings of fact, conclusions of law,

and decree of the Tenth Judicial District Court, Fergus County,
finding in favor of Terri Ward, formerly known as Terri Durbin. We

affirm.

Ed,raises eight separate issues on appeal. We consolidate and

reframe those issues as follows:

1. Did the District Court abuse its discretion by increasing

Ed's child support obligation?

2. Did the District Court abuse its discretion by ordering

Ed to pay Terri $2264.10 for the children's health care expenses?

3. Was the District Court's award of attorney fees and costs

to Terri supported by substantial evidence?

4. Did the District Court abuse its discretion by awarding

Terri interest on the child support arrearage?

5. Did the District Court err by adopting findings and

conclusions substantially similar to those proposed by Terri?

Ed and Terri were married in December 1975. Two children were

born of the marriage. The marriage was dissolved in November 1986.

The decree of dissolution awarded the parties joint custody of the

children, with Terri retaining primary physical custody. Ed was

ordered to pay child support of $150 per month during the school

year and $75 per month for the two summer months when he was to

have physical custody. The court also ordered Ed to provide health

insurance for the children and ordered each party to pay 50 percent

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of the children's health care expenses that were not covered by
insurance.

On December 18, 1986, Ed was seriously injured in a

job-related accident, resulting in his permanent blindness. As a

result, Ed received a settlement that included a cash lump sum of
$373,557 and an annuity valued at $499,950.27 which is payable in

the amount of $3788 per month for the rest of Ed's life or a

minimum of 30 years. Ed's attorney fees and litigation expenses

also were paid as part of the settlement.
Also as a result of the accident, Ed received workers'

compensation benefits and a lump sum payment of $5000, plus monthly
payments of $87 from his employer's Fireman's Fund disability

insurance. Six months after the accident, Ed qualified for and

began receiving Social Security Disability (SSD) benefits, which

reduced the amount of his workers' compensation benefits.

Also as a result of Ed's accident, Terri began receiving SSD

benefits on behalf of the children. On July 1, 1987, Ed stopped

making his court-ordered child support payments because he believed

that the SSD benefits served as credit toward his obligation.
In May 1990, Ed filed a petition for modification of custody

and child support. Terri filed a cross-petition requesting past,

current, and future child support. Following hearing, the District

Court denied Ed's custody modification request and denied Terri's

request for child support modification. Terry subsequently

appealed to this Court.
 In In re Marriage of Durbin (1991), 251 Mont. 51, 823 P.2d 243

(Durbin I), we overturned the District Court's decision and
remanded the case for determination of child support consistent

with our opinion. We specifically instructed the District Court
to:

[Mlake additional findings and conclusions concerning
1) EdL'sl and Terri's financial resources, 2) Ed['sl and
Terri's annual gross income, 3) the children's expenses,
and 4) Ed's actual and necessary financial needs
including those associated with his medical care
resulting from his blindness. We instruct the District
Court to subtract Ed's actual and necessary needs
including those associated with his medical care from his
financial resources, and consider the remaining amount in
determining a future child support modification . . . .

Durbin I, 823 P.2d at 249. We further held that the SSD benefits

received on behalf of the children prior to May 29, 1990, were not

to be credited toward Ed's child support obligation, but that the

benefits received after May 29, 1990, were to be credited.

Durbin I, 823 P.2d at 247. Finally, we instructed the District

Court to make findings and conclusions concerning the award of

attorney fees and costs and the proper allocation of income tax

deductions for the parties' dependent children. Durbin I, 823 P.2d

at 250.

On October 13, 1992, the District Court heard further

testimony and received additional evidence. On January 6, 1993,

the court entered its findings of fact and conclusions of law. On

January 29, Terri moved for, and was subsequently granted, a new

trial.
 The District Court, a new judge presiding, conducted another

hearing on November 2, 1993. Pursuant to the parties' stipulation,

the court took judicial notice of the evidence previously
submitted, including the transcript of the October 1992 hearing.

On July 15, 1994, the District Court filed its amended

findings of fact, conclusions of law, and decree. The court

ordered Ed to pay Terri child support as follows:
June 1990 to August 1992 $ 1231.00 per month
August 1992 through November 1993 986.00 per month

November 1993 to July 1994
(first child's emancipation) 761.39 per month

July 1994 through the
second child's emancipation 665.59 per month

Additionally, the court ordered Ed to pay Terri $14,602.46, plus

interest, for back child support, $2264.10 for his 50 percent share

of the children's health care expenses, and to reimburse Terri for

one half of her legal fees and costs.
Ed appealed.

ISSUE 1

Did the District Court abuse its discretion by increasing Ed's

child support obligation?
In reviewing the district court's findings in child
support modification cases, a presumption exists in favor
of the district court's decision, and we will overturn
the decision only if the district court abused its
discretion.

In re Marriage of Paunovich (Mont. 19941, 52 St. Rep. 144, 145; In
re Marriage of Craib & Rhodes (1994), 266 Mont. 483, 490, 880 P.2d

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1379, 1384. The court must initially determine that there has been
a "showing of changed circumstances so substantial and continuing

to make the terms unconscionable." Marriaqe of Craib & Rhodes, 880
P.2d at 1384 (quoting § 40-4-208(2)(b)(i), MCA).

Ed claims that the District Court abused its discretion (I) by
finding that a substantial and continuing change in circumstances

occurred, (2) by failing to use the proper child support

guidelines, (3) by failing to take equitable matters into

consideration, and (4) by increasing the amount of child support he

must pay. We disagree with each of these assertions.

First, Ed claims that "under the unique circumstances of this

case," there has been no showing of changed circumstances. This

action arises upon Ed's petition for modification filed May 29,

1990, and Terri's cross-petition filed June 14, 1990. Ed's

petition states:

Respondent [Ed] specifically requests modification
of child support in that there has been chanced
circumstances so substantial and continuinq as to make
the terms of child support unconscionable under the
circumstances as they now stand.

(Emphasis added.) In Rowland v. Klies (19861, 223 Mont. 360,

367-68, 726 P.2d 310, 316, we reaffirmed the rule of judicial

estoppel which provides "that during the course of litigation a

party is not permitted to assume or occupy inconsistent and

contradictory positions . . .'I Ed, therefore, is judicially

estopped from changing his position regarding changed

circumstances. Moreover, the record is replete with evidence that

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the circumstances of the parties' substantially changed and that
the change is continuing.

Secondly, Ed asserts that the District Court did not apply the

proper child support guidelines. However, the District Court's
application of guidelines is completely supported by the testimony

of Special Assistant Attorney General Peggy Probasco, who is an

attorney for the Child Support Enforcement Division (CSED) of the

Montana Department of Social and Rehabilitation Services, and who

helped draft Montana's child support guidelines. The District

Court substantially adopted Probasco's child support calculations.

At trial, Probasco explained that the four distinct amounts of

child support were calculated pursuant to different sets of

guidelines in effect during each of the four corresponding time

periods. She testified that she made her calculations using the

information that the parties provided to the court, including their

financial affidavits and tax returns. She pointed out the source

of the figures that she used, including numerous variances which

were made due to the unique circumstances of the parties. She

testified that her calculations took into account this Court's

instructions regarding the SSD benefits received on behalf of the

children. She further stated that she was not testifying on behalf

of Terri or Ed, but that she was testifying on behalf of CSED,

which had an active interest in the case due to the SSD benefits

issue; and she stated that she was not being paid by either party

for her testimony.
 Ed next argues that the District Court "finds no unique
circumstances for a departure from the guidelines in accordance

with the directions of" this Court. We disagree. In its
Conclusion of Law No. 9, the District Court stated:

The Court has varied from the Guidelines in order to
account for the unique circumstances of Edwin Durbin
. . . In arriving at the foregoing findings, the Court
has also considered the unique circumstances that Edwin
has been placed in because of his blindness.

Ed fails to provide this Court with any specific example of how the

District Court failed to take into account his unique

circumstances. Indeed, the court made a variance for Ed's medical

expenses, despite the fact that Ed provided no expert testimony

regarding his medical expenses, and allocated Ed a six and one-half

percent retirement income, although the guidelines do not provide

for it.

Finally, Ed argues that the court abused its discretion by

increasing the amount of child support that he owes. However, as

we discussed above, the record contains substantial evidence to

support the District Court's findings and conclusions, and

therefore, we hold that the District Court did not abuse its

discretion by increasing the amount of child support that Ed must

pay.
ISSUE 2

Did the District Court abuse its discretion by ordering Ed to

pay Terri $2264.10 for the children's health care expenses?
 The parties' decree of dissolution provided that Ed and Terri
would equally share the cost of their children's health care

expenses that were not paid by insurance. At trial, Ed, Ed's wife,

and Terri each testified regarding the amount of medical expenses

that Ed owed Terri. Terri claimed that Ed owed her $2264.10. Ed

and his wife disputed this amount. Ed's wife testified that Ed

owed a total of $1542.43.

In Interstate Production Credit Ass'n v. DeSaye (1991), 250
Mont. 320, 323, 820 P.Zd 1285, 1287, we held that this Court may

not substitute its judgment for that of the trier of fact.

Moreover, we will not substitute our judgment for that of the

district court regarding the credibility of witness or the weight

to be given their testimony. In re Marriage of Doolittle (19941,

265 Mont. 168, 174, 875 P.2d 331, 335. It is the duty of a

district court, not the Supreme Court, to resolve any conflicts in

evidence. Tonack v. Montana Bank of Billings (1993), 258 Mont.

247, 251-52, 854 P.2d 326, 329.

In this case, the District Court found that Ed owed Terri

$2264.10 for the children's health care expenses. The finding is

supported by substantial, credible evidence, i.e., Terri's
testimony. We hold that the District Court did not abuse its

discretion by ordering Ed to pay Terri that amount.

ISSUE 3

Was the District Court's award of attorney fees and costs to

Terri supported by substantial evidence?

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 Section 40-4-110, MCA, provides district courts with the
discretion to award attorney fees and costs. The statute requires
the court to consider the financial resources of the parties.

Section 40-4-110, MCA. In In re Marriage of Malquist (Mont. 1994),

880 P.2d 1357, 1362, 51 St. Rep. 914, 917, we held: (1) that the

district court must hold a hearing allowing for oral testimony,

cross-examination, and the introduction of exhibits, and (2) that

the petitioning party must make a showing of necessity and

demonstrate that the award is reasonable and based on competent

evidence.
At trial, Terri testified in detail regarding her financial

circumstances. She stated and introduced documents evidencing her

negative net worth. Evidence regarding her attorney fees and other

legal expenses were introduced at both the October and November

1992 hearings. Both of Terri's attorneys submitted affidavits

outlining their fees, and testimony was given regarding the

reasonableness of those fees.

Ed argues that In re Marriage of Davies (Mont. 1994), 880 P.2d

1368, 1377, 51 St. Rep. 929, 935, requires that hearing on the

issue of attorney fees occur separately from the child support

proceedings. However, our holding in Davies--that the district

court erred by not holding a separate hearing on attorney fees--is

limited to the particular facts of that case. To require a

separate hearing on the issue attorney fees in every child support
case would unnecessarily burden the courts and the parties.

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 We determine that Terri made a showing of necessity and
demonstrated, via competent evidence, that an award of half of her

attorney fees and legal costs was reasonable. We hold that the
District Court's award of attorney fees and costs to Terri was

supported by substantial, credible evidence.

ISSUE 4

Did the District Court abuse its discretion by awarding Terri

interest on the child support arrearage?
"We have consistently held that, absent contrary provisions in

a dissolution decree, interest on child support arrearage is

automatically collectable by [the] judgment creditor spouse." In

re Marriage of Stroop (Mont. 1994), 887 P.2d 714, 717, 51 St. Rep.

1417, 1419. The decree of dissolution in the instant case does not

contain any provision contrary to the collection of interest on

arrearages. Ed argues that the rule regarding interest should not

apply in his case, claiming that he did not know what the proper

amount of child support should be and that "the equities in this

case justify a departure from the general rule of awarding

interest." Ed cites no authority or public policy in support of

his position, and we are not persuaded by his arguments. We hold

that the District Court properly awarded interest on the child

support arrearage.
ISSUE 5

Did the District Court abuse its discretion by adopting

findings and conclusions substantially similar to Terri's proposed

findings and conclusions?

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 Ed asserts that the District Court erred by adopting verbatim

Terri's proposed findings and conclusions, In In re Marriage of
Allison (Mont. 1994), 887 P.2d 1217, 1226, 51 St. Rep. 1502, 1509,

we stated:
While we discourage the verbatim adoption of
proposed findings and conclusions, "the practice does not
constitute error per se." In re Marriage of Nikolaisen
(1993), 257 Mont. 1, 5, 047 P.2d 287, 289. In
Nikolaisen, we set forth the following test:

When reviewing the adequacy of the findings of
fact and conclusions of law, we examine
whether they are sufficiently comprehensive
and pertinent to provide a basis for a
decision, and whether they are supported by
substantial evidence.

While the record reveals that the court's findings and conclusions

are substantially similar to those proposed by Terri, we are

satisfied that those findings and conclusions are comprehensive,

pertinent, and supported by substantial, credible evidence. The

District Court, therefore, did not abuse its discretion by issuing
findings and conclusions substantially similar to those proposed by

Terri.

Affirmed.

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1988 Internal Operating Rules, this decision shall not be cited as

precedent and shall be published by its filing as a public document

with the Clerk of the Supreme Court and by a report of its result

to Montana Law Week, State Reporter and West Publishing Company.

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we concur:

&hief Justice

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