No. 14702
IN THE SUPREME COURT OF THE STATE OF MONTANA
1980
IN RE THE MARRIAGE OF
DONNA M. BLISS,
Petitioner and Respondent,
VS .
ROBERT E. BLISS,
Respondent and Appellant.
Appeal from: District Court of the Thirteenth Judicial District,
Honorable C. B. Sande, Judge presiding.
Counsel of Record:
For Appellant:
Towe, Ball, Enright and Mackey, Billings, Montana
For Respondent :
Claren Neal, Billings, Montana
Calvin J. Stacey, Bi-llings,Montana
Submitted on briefs: September 9, 1979
Decided: APE I : l$@Q
Clerk
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
The husband appeals from an order of the Yellowstone
County District Court which modified his child support
payments and awarded attorney fees to the wife for representation
necessitated by the husband's initiation of the original
petition to modify the divorce decree in relation to visitation
and to permit him to inspect the home of the parties' for
the purpose of making repairs. He also appeals from a
subsequent order of the trial court which awarded $3,000 to
the wife as attorney fees and costs anticipated for defending
his appeal to this Court.
This dispute centers around a property settlement
agreement entered into by the parties one month before their
divorce. The agreement provided for child custody and child
support and stated that the husband should have sole interest
in the family home. The husband agreed to pay the wife
$100 per month for the support of the parties' minor daughter,
with the proviso, however, that they were not to begin until
the expiration of five years. He contends, however, that he
made house payments as a substitute for child support.
The agreement provided for child custody in the wife,
but it appears that child support was tied into the house
payments. It permitted the wife to live in the house rent-
free for a five year period. If, on the other hand, the
wife moved out of the house before the expiration of the
five year period, monthly child support payments in the
amount of $100 would start immediately. The husband also
informed the wife that he would assume responsibility for the
house payments which amount to $162 per month. The husband was
not represented by counsel. Four days after the wife filed
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her petition for dissolution of the marriage, the husband
signed a document incorporating the terms previously mentioned.
The husband was still not represented by counsel.
In dissolving the marriage, the trial court entered an
order which incorporated the parties' agreement and ordered
the parties to comply with its terms.
A year and a half after the dissolution, the husband
petitioned the court to provide a child visitation schedule,
and also to obtain an order permitting him to inspect the
the
parties' home for/purpose of making repairs. The wife filed
a reply and a counterpetition, and sought an order which would
divide the property and order the sale of the parties' home.
The counterpetition, furthermore, alleged that the husband
had not paid any child support since the dissolution, and
asked that the husband not only pay back support but that he be
required to pay $150 per month for the support of his minor
daughter. The wife also requested reasonable attorney fees.
The trial court refused to make a property division.
The end result is that the wife is to stay in the home and
the husband continues to make the monthly $162 payments.
However, the trial court, in addition to this, ordered the
husband to commence monthly $150 payments to the wife for
child support. Additionally, the order provided that the
husband was to pay $2,250 for back child support. This figure
represented the time period between the time the wife filed
her counterpetition and the time that the order for child
support was entered.
The trial court then filed an amended judgment. It set
out a visitation schedule for the husband, but also provided
that child support payments of $150 per month were -
in
addition to payments provided for by the so-called property
settlement agreement. The order also provided for an award
of $750 attorney fees to be paid by the husband to the
wife's attorney. The husband appeals from both the child
support order and the attorney fee order.
After the husband filed his notice of appeal, the wife
filed a motion in District Court asking for attorney fees
and costs anticipated to be incurred in defending her husband's
appeal. The trial court entered an order, ordering the
husband to pay $3,000 in attorney fees and anticipated
costs. The husband was ordered to make this payment on or
before June 29, 1979. On June 28, 1979, the husband petitioned
this Court for a writ of supervisory control. We issued an
order staying the order of payment of $3,000 in fees so that
the issue could be considered along with the other issues
involved in this appeal.
The wife argues that by the terms of the agreement in-
corporated into the divorce decree the husband did not have
to pay child support for the first five years. Thus she now
contends that the trial court's October 1978 order requiring
child support payments, is not a modification of the original
decree. The record on the whole, however, establishes that
the wife's rent-free rental of the parties' house was agreed
upon as a substitute for direct child support payments
denominated as such. The wife did not dispute the husband's
testimony that he had informed her that he would make mortgage
payments on their house and allow her to live in the house
for five years rather than paying her directly for child
support.
The husband's testimony is further supported by the
provision of the divorce decree that the husband would
commence direct child support payments should the wife move
out of the house. The husband has not had to do this,
however, because since the divorce the wife has lived in the
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house and the husband has continued to make the mortgage
payments. Thus we conclude that the trial court's finding
that no child support payments have been made since the
partiest divorce is not supported by substantial evidence.
Clearly, therefore, the trial court's order requiring the
husband to pay $150 per month for child support, is a modification
of the support payments incorporated in the divorce decree.
The trial court did not enter the appropriate findings
and conclusions by which this Court can review an order
modifying child support payments. Section 40-4-208(2)(b),
MCA, authorizes a trial court to modify child support payments
only "upon written consent of the parties", or upon a showing
that "substantial and continuing" circumstances make the
child support provisions "unconscionable." In her proposed
findings the wife requested $150 per month as a reasonable
sum for child support. The trial court adopted her finding
in its order which stated: "$150.00 per month for the support
and maintenance of the minor child is a reasonable sum. . ."
This finding is clearly insufficient upon which to predicate
a modification of the child support provisions in compliance
with section 41M-208(2)(b). This section requires formal
findings that substantial and continuing circumstances make
the terms of child support unconscionable. See, Gianotti v.
,
McCracken (1977), - Mont. - 569 P.2d 929; See also, Kronovich
v. Kronovich (1978), - Mont . , 588 P.2d 510. Absent
the necessary findings, this Court will not independently
search the record to determine if there is nonetheless an
evidentiary basis for the order modifying the child support
provisions. It is clear, therefore, that this case must be
remanded to the trial court for entry of the appropriate
findings.
The husband contends next that the trial court erred
in awarding $750 attorney fees to wife's attorney for legal
services rendered in seeking the increased child support
payments. The evidence concerning each of the parties'
incomes presented at the hearing, supports the trial court's
decision allowing attorney fees. The husband does not
dispute the amount of the fee and we conclude that the trial
court did not abuse its discretion.
The last issue concerns the award of attorney fees and
costs to the wife so that she could defend the present appeal
filed by the husband. We conclude that the $3,000 attorney
fee order is manifestly in error. The trial court's authority,
if such exists, to award attorney fees for purposes of appeal,
arises from section 40-4-110, MCA. This section provides
that the court may order one party to pay the other's attorney
fees "for legal services rendered and costs incurred ...
after entry of judgment." (Emphasis added.) This section
contemplates that under normal circumstances, an order for
attorney fees will be permitted only after counsel for the
benefited party has completed his services.
The order here requires payment for expenses that are
purely speculative. At the time the trial court entered the
order requiring the husband to pay $3,000 on or before June
29, 1979, the wife's attorney had only completed preliminary
work in relation to the appeal. His affidavit in support of
the wife's motion for attorney fees, indicated that he had
completed only 20 percent of the work expected for this appeal.
His anticipated time included hours spent for activities
which in fact he was never required to perform. For example,
the affidavit listed 5 hours time to prepare for and present
oral argument before this Court. But, because of the nature
of the case and the issues involved, this Court ordered the
case submitted on briefs. Thus the need for oral argument
is nonexistent.
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And there is another factor which this Court must
address. In his affidavit, the wife's counsel declared
that he had spent over 60 hours in preparing for the hearing
in support of the wife's motion for an advance award of
attorney fees. Although the order is silent, it appears
that the court's attorney fee award is at least in part to
compensate counsel for the time spent in securing a court
order for payment of his fee rather than for his time spent
in responding to the husband's appeal. We reject the notion
that the court may require one party to pay opposing counsel
for his time spent in seeking justification of the fees he
desires. The practice of law has its burdens as well as
benefits, and this is one burden that counsel must bear
without an expectation of compensation.
We note with respect to the issue of attorney fees on
appeal, the brief filed on behalf of the wife in this Court
is silent. Counsel's failure to respond to this issue raised
by the husband, we believe, speaks for itself.
The trial court's child support order is vacated, and
this issue is remanded to the District Court for further
proceedings consistent with this opinion. The order awarding
$3,000 in attorney fees to be paid to the wife's attorney, is
reversed. The District Court's award of $750 attorney fees
for services rendered in District Co
We Concur: u
Chief Justice