No. 13913
I N THE SUPREME COURT O THE STATE O MONANA
F F
1978
GARY LEE OLSON,
P l a i n t i f f and A p p e l l a n t ,
SHIRLEY ANN OLSON,
D e f e n d a n t and Respondent.
Appeal from: D i s t r i c t Court of t h e Fourth J u d i c i a l D i s t r i c t ,
H o n o r a b l e J a c k L, Green, J u d g e p r e s i d i n ~ .
C o u n s e l o f Record:
For Appellant:
T i p p , Eoven and S k j e l s e t , M i s s o u l a , Montana
Raymond P. T i p p a r g u e d , b!issoula, Montana
F o r Respondent :
B a l y e a t and Kammerer, M i s s o u l a , Montana
H. J o h n B a l y e a t a r g u e d , M i s s o u l a , Montana
Submitted: J a n u a r y 1 9 , 1978
Decided: FEB 3 - 1978
Filed: FEB 3 - 1OJB
Mr. Justice Frank I. Haswell delivered the Opinion of the Court.
This is an appeal by the father of three minor children
from an order of the Missoula County District Court covering
child custody, sujjpoit and visitation rights. This order re-
quires the father (the custodial parent) to pay $375 per month
child support ($125 per month per child) during the children's
periods of visitation with their mother, (the noncustodial parent)
plus the children's cost of transportation to the mother's home
in Everett, Washington.
The father was awarded a default divorce from the mother
on September 23, 1975. The mother had been personally served
with the divorce complaint in the State of Washington. The divorce
decree awarded custody of the three children to the father and
contained no provision for child support.
On April 6, 1976, the mother filed a motion and affidavit
to set aside the default divorce decree. In her affidavit she
alleged that she had been unable to obtain legal counsel to repre-
sent her in the divorce proceeding. She further alleged that the
children had asked to come and live with her because their father
works full time and spends additional time away from home, leaving
the children in the care of the oldest child, age twelve. The
mother's motion was granted with respect to opening up the child
custody and support provisions of the decree. The ~istrictCourt,
in its order granting the motion, did not specify the basis for
doing so. This order is not being appealed.
The District Court held a full hearing on child custody
and support on July 19, 1976. After hearing the matter, the
court ordered that the children remain in the custody of the
father; that the mother have the children from June 15 to August
15 of every year, and every other Christmas vacation; that the
father pay to the mother $375 per month child support when the
children are with their mother, as well as the costs of trans-
portation for the children to the mother's home in the State
of Washington. The father now appeals from this order.
The sole w issue on appeal raised by the parties is
whether there is sufficient evidence to support the court's
order on child support.
Before addressing this issue, we must comment on the pro-
ceedings in this case. We believe that the procedure used in
this case, i.e., setting aside the default divorce decree pro-
visions relating to child custody and readjudicating this issue,
could be a convenient means of circumventing the two-year pro-
hibition against modification of custody decrees contained in
section 48-339, R.C.M. 1947. Both counsel agree that this could
be the effect of the procedure used in this case, but deny any
intent to circumvent the two-year prohibition on modification of
child custody decrees. At oral argument both counsel stated that
the default decree was set aside for excusable neglect on the part
of the mother in responding to the divorce action.
Montana law provides that a party, by motion, may seek
relief from a judgment by having it set aside. A judgment can
be set aside because of excusable neglect on the part of the party
seeking relief. Rule 60 (b)(1), M.R.Civ.P. However, Rule 60 (b),
M.R.Civ.P.,provides that when the party seeking relief was person-
ally served, the motion for relief on the grounds of excusable
neglect must be made within sixty days of entry of the judgment.
In this case the motion by the mother was filed approximately six
months after the default decree was entered. Thus, the decree
should not have been set aside for excusable neglect when the
motion was not made within the time limits of Rule 60(b).
Section 48-339, R.C.M. 1947, is the modification statute.
It provides in pertinent part:
"Modification. (1) No motion to modify a custody
decree may be made earlier than two (2) years
after its date, unless the court permits it to
be made on the basis of affidavits that there is
reason to believe the child's present environment
may endanger seriously his physical, mental, moral,
or emotional health."
In interpreting this section, we have held that subsection (1)
is a jurisdictional prerequisite to a modification action. Holm
v. Holm, (1977), Mont . , 560 P.2d 905, 34 St.Rep. 118.
There it was held that the District Court lacked jurisdiction to
change custody within two years of the original award when it
specifically found that the custodian was a fit and proper parent.
A similar finding was made in this case. The District Court
found that both the mother and father were fit to be awarded
custody. That finding alone establishes a lack of jurisdiction
in the District Court to set aside or modify the divorce decree
in regard to custody.
We have adopted the rationale behind section 48-339, R.C.M.
1947. Holm v. Holm, supra. The purpose of this section is to
provide a degree of stability to custody awards. This stability
best serves the welfare of the children, whereas continuous and
uninterrupted wrangling over who the custodian will be does not.
We do note that there is an exception in section 48-339
to the two-year limitation. This exception, however, is not to
be liberally applied. The comment of the committee, which acted
for the National Conference of Commissioners on Uniform State
Laws in promulgating the Uniform Marriage and Divorce Act, best
expresses how the exception is to be applied:
" * * * During that two-year period, a contestant
can get a hearing only if he can make an initial
showing, by affidavit only, that there is some
greater urgency for the change than that the child's
best interest' requires it. During the two-year
period the judge should deny a motion to modify,
without a hearing, unless the moving party carried
the onerous burden of showing that the child's
present environment may endanger his physical,
mental, moral or emotional health." 9 U.L.A.
Matr., Fam., & Health Law, S409.
The mother, in this case, did not make this required showing
by affidavit.
It may be argued that the District Court modified the
mother's visitation rights rather than the custody award and
section 48-339 should have no application. The basis of this
argument would be that the mother, in the original decree, had
reasonable visitation rights, and under the order of the Dis-
trict Court those visitation rights have been modified to the
period between June 15 to August 15 of every year. We remain
unconvinced.
In Colorado where the Uniform Marriage and Divorce Act
is in effect, it has been held that the two-year prohibition on
motions to modify custody does not apply to motions for modifi-
cation of visitation rights. Manson v. Manson, 35 Colo.App. 144,
529 P.2d 1345. We do not disagree with this rule. However, it
is our opinion that here the District Court, in effect, modified
the original custody decree by allowing the mother to have the
children from June 15 to August 15 of each year. In the original
decree the father had custody twelve months of the year. Under
the order on appeal the father will have custody ten months of
the year and the mother two months. Labeling this "visitation"
does not change its substance which is "custody".
Turning to the issue of child support, the relevant
statutory provision is section 48-323, R.C.M. 1947. It reads:
"Child support. In a proceeding for dissolution
of marriage, legal separation, maintenance, or
child support, the court may order either or
both parents owing a duty of support to a child
to pay an amount reasonable or necessary for
his support, without regard to marital mis-
conduct, after considering all relevant factors
including:
"(1) the financial resources of the child;
"(2) the financial resources of the custodial
parent;
" (3) the standard of living the child would have
enjoyed had the marriage not been dissolved;
"(4) the physical and emotional condition of
the child, and his educational needs; and
"(5) the financial resources and needs of the
noncustodial parent."
On appeal the father argues that there has been no com-
pliance with this statute. He contends that there was insuf-
ficient evidence at the hearing concerning the financial resources
of the custodial parent, the financial resources of the noncus-
todial parent, and the financial resources of the children, if
any. The mother contends that the statute on child support was
complied with and there is sufficient evidence to support an award
of child support to her.
The evidence presented at trial concerning child support
is as follows: The father has worked at Buttrey's for 15 years
as a meat cutter which he describes as a "good job". The father
has a mobile home which was awarded to him in the original decree.
He owns a boat and camper with which he often goes fishing. In
his exceptions to the findings of fact and conclusions of law,
the father stated that his take home pay was approximately $600
per month although there was no testimony to this effect at the
hearing. The mother works as a receptionist for a group of
physicians and receives a $630 per month salary for a 40 hour
week. She and her roommate rent a four bedroom house for $125
per month. She testified that if she were given custody, she
would be able to support the children without any support money
from their father.
We hold that the evidence is insufficient to justify the
District Court's order on child support and that the statutory
requirements of section 48-323 have not been met.
In Berthiaume v. Berthiaume, (1977), Mont . , 567
P.2d 1388, 34 St.Rep. 921, we held that the District Court abused
its discretion in making and ordering an alleged equal division
and distribution of marital property without any testimony as to
the value of the property. This rationale is equally applicable
here.
The District Court, in ordering the father to pay the
mother $375 per month child support, had no evidence as to the
monthly income of the father. The court had no evidence as to
his monthly expenses. The court had no evidence as to how much
money was necessary to meet the children's needs. There was no
evidence as to what the children's financial resources were, if
any. In short, the District Court could not, with the evidence
before it, determine if its child support award was reasonable,
excessive, or inadequate.
In Herrin v. Herrin, (1936), 103 Mont. 469, 63 P.2d 137,
this Court held that there was insufficient evidence to support
a judgment granting the wife separate maintenance when there was
no evidence as to the husband's financial condition or earning
capacity. The court said that the imposition of an obligation
to pay maintenance was unwarranted in the absence of a showing
of an ability to pay. We hold that imposing an obligation to
pay child support without any evidence of an ability to pay is
unwarranted.
The order of the District Court modifying the child cus-
tody, child support and visitation rights established in the
original divorce decree is vacated. The provisions of the orig-
inal divorce decree are reinstated.
Justice
We concur:
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