No. 81-323
IN THE SUPRElE COURT OF THE STATE OF MQNTANA
1982
IN RE THE MARRIAGE OF
TERESA ANN BAER,
Petitioner and Respondent,
CHARLES EGAN BAER,
Respondent and Appellant.
Appeal from: District Court of the First Judicial District,
In and for the County of Lewis & Clark, The Honor-
able Gordon R. Bennett, Judge presiding.
Counsel of Record:
For Appellant:
Robert J. Sewell, Helena, Montana
For Respondent :
Joan Uda, Helena, Montana
Submitted on Briefs: March 5, 1982
Decided: July 6, 1982
Filed; JUL 6 - 1982
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Charles Egan Baer appeals from two orders of the District
Court, First Judicial District, Lewis and Clark County. The
first order required him to pay $125 in overdue child support,
increased the future child support payments, ordered him to
pay one-half of the necessary expenses of orthodontia for
the parties' child, and found Teresa Baer entitled to her
attorney's fees. The second order required Charles to pay
Teresa's costs and attorney's fees in the amount of $2,200.64.
The parties were married on May 9, 1968, and were divorced
on August 6, 1976. They had one child, ust tin Michael
Baer, who was born on March 26, 1970. At the time of the
modification hearing, he was ten years of age.
The decree of dissolution and property settlement
agreement awarded custody of the child to Teresa, required
Charles to pay $125 per month in child support, and provided
for Charles' reasonable visitation with the child, including,
but not limited to, every summer for a period commencing two
weeks after school and terminating two weeks prior to the
beginning of school and "during the Christmas holiday season."
Child support was not to be paid during summer visitations.
On May 1, 1980, Teresa filed a petition for modification
of the divorce decree in which she sought $473.64 in allegedly
overdue child support payments. The alleged arrearages
consisted of three child support payments totaling $375 and a
claimed entitlement to a daily proration of child support
payments for days in June and August of past years when the
child resided with Teresa prior to and after the time he
spent summer visitation with Charles. She also sought: an
increase in child support from $125 per month to $225 per
month with an automatic seven percent cost of living increase
each year; an assignment of Charle's wages; an order
requiring Charles to pay one-half of the cost of orthodontic
work for the child; an order expanding Charles' visitation
rights to include every other weekend and requiring him to
exercise his visitation rights in a regular and responsible
manner; and, an order requiring Charles' to pay Teresa's
reasonable attorney's fees and costs.
The parties subsequently stipulated that visitation
should be expanded to include every other weekend.
A hearing was held on January 19, 1981. On May 19,
1981, the District Court ordered Charles to pay $125 in back
child support, increased the monthly child support payments
to $175 with a five percent annual increase thereafter,
ordered Charles to pay one-half of the expenses of the
child's orthodontia necessary for health, rather than cosmetic
reasons, and stated that if Charles is late with any future
child support payment his wages will be assigned. The Court
also awarded Teresa her attorney's fees "in a reasonable
amount to be determined upon proof thereof."
In a separate order, filed February 2, 1981, the District
Court dismissed with prejudice Teresa's claim for a prorated
or daily amount of child support for those portions of June
and August immediately preceeding and following Charles'
summer visitations with the child. The order also dismissed
Charles' counterclaim for a prorated reduction in support
payments for the days when the child was with him and support
payments were being paid to Teresa.
A hearing was held on July 22, 1981, to determine the
costs and attorney's fees to which Teresa was entitled. The
District Court concluded that her necessary and reasonable
attorney's fees and costs amounted to $2,200.64. Charles was
ordered to pay her that amount.
Mr. Baer presents three issues for review:
(1) Whether the evidence was sufficient to support the
District Court's order finding Charles responsible for
delinquent child support, requiring him to pay increased
child support with automatic costs of living adjustments,
and requiring him to pay for orthodontic work for the
child.
(2) Whether Teresa is entitled to attorney's fees and,
if so, in what amount.
(3) Whether the District Court committed reversible
error by adopting in toto Teresa's proposed findings of
fact, conclusions of law, and order.
We affirm the District Court on all issues except that
of delinquent child support.
The facts argued in the parties' briefs with regard to
the issue of delinquent child support are irreconcilable.
Furthermore, Charles' inconsistent method of paying his
monthly support obligations makes clarity difficult. The
most straightforward account of his past payments appears
in the transcript of the hearing where, after an explanation
by Charles' attorney, the following exchange occurred:
"THE COURT: I would conclude from that that
wherever the burden was in the first place,
they've made a prima facie case of paying.
Have you got anything to rebut it?
" [TERESA'S ATTORNEY] : Other than the fact
that we don't have the check, no.
"THE COURT: Okay. Very well. Then it is
settled as a matter of fact that the respondent
[Charles] here is current?
"[CHARLES' ATTORNEY]: I believe it is, your
Honor.
" [TERESA'S ATTORNEY] : (Nodded head. ) "
Teresa contends that there was ccnfusicn at the hearing in
regard to Charles' payment, or nonpayment, of his obligation
for September 1978, and September 1979. The District Court
apparently agreed with her because after the hearing it
ruled that Charles owed back child support for the month of
September 1978. The District Court does not explain its
change of opinion on the issue of back child support, and
Teresa's brief to this Court does not sufficiently explain
the new finding. Therefore, on the basis of the record as
it has come to us we must reject as clearly erroneous the
District Court's finding that Charles owes back child support
for the month of September 1978. Rule 52(a), M.E.Civ.P.
The second element of issue number one is the increase
in monthly child support payments from $125 per month to
$175 with an automatic five percent annual increase. Charles
contends that the findings of the District Court are not
sufficient to justify the increase in support, and are not
supported by substantial credible evidence.
Section 40-4-208 (2)(b), MCA, provides:
"Whenever the decree proposed for modification
contains provisions relating to maintenance or
support, modification ...may only be made:
(i) upon a sh~wing of changed circumstances
so substantial and continuing as to make the
terms unconscionable;. . ."
The fact that the exact words of the statute do not
appear in the District Court's findings and conclusions is
of no consequence. We must determine: (1) in light of the
evidence in the record, are the findings of the District
Court clearly erroneous, Rule 52 (a), M.R.Civ.P. and, (2) in
light of the evidence and the findings based thereon did the
District Court adhere to the standards outlined in section
40-4-208(2)(b), MCA, in making its judgment?
We hold that there is sufficient evidence in the record
to sustain the findings of the District Court--that is, they
are not clearly erroneous. Furthermore, we agree with the
District Court's application of section 40-4-208(2)(L),
MCA .
Charles argues that certain specific findings are not
supported by the record. The first of these is the District
Court's finding that, due to the increased age of the child
and the increased cost of living, the costs of supporting
the child have increased by approximately 50 percent since
the divorce in 1976. This finding is supported by Teresa's
testimony. For example, she testified that shortly after
the divorce her monthly food budget was approximately $60,
for mother and son. Today, her monthly food budget is $190.
She also testified that clothes for her son, who is now 11
years old, have increased in both size and price since
the divorce. Finally, there is testimony concerning the
other increasing costs of raising a child, including health
care, hobbies, and the costs associated with providing a
home for the child. This evidence provides sufficient
support for the District Court's finding.
Charles also disputes the District Court's finding that
the costs of supporting the child now amount to a minimum of
$350 per month, of which Teresa is paying almost two-thirds.
Charles claims that according to his calculations, which are
based upon an expense statement submitted by Teresa, the
monthly cost of supporting the child is $187.15. his
figure, however, does not include certain expenses which are
incurred jointly by mother and son. There is no specific
item of evidence which, considered in isolation, proves that
the cost of supporting the child is exactly $350 a month or
that Teresa is currently paying two-thirds of that amount.
There is, however, sufficient evidence in the record to
sustain the finding of the District Court. Therefore, we
cannot say that this particular finding is clearly erroneous.
Rule 52 (a), M. R.Civ. P.
Charles contests the court's finding that he possesses
capabilities to increase his income which are not available
to Teresa. This finding, he argues, is not supported by the
evidence and amounts to speculation. We do not agree. The
record contains evidence that Charles has in the past received
rental income from friends with whom he shared his home.
There is also evidence that he operates a small construction
business during the surmers. Thus, the record supports the
finding. We do not intend to say that Charles is obligated
to take in tenants or hold a second job. The record indicates,
however, that he has done so in the past and we therefore
cannot say that the court's finding is clearly erroneous.
Finally, Charles contends that there is no evidence
to support the District Court's finding that he had withdrawn
his counterclaim for a prorated reduction in support payments.
We find support for the findings in the transcript of the
hearing held January 19, 1981. At the hearing, Charles'
attorney was informed by the District Court that a detailed
accounting would be required for either party to prevail on
its prorated support claim. Charles' attorney responded,
understandably, that he had no desire to undertake such an
accounting. In response to a motion filed by Teresa, her
claim and Charles' counterclaim were dismissed with prejudice
on February 2, 1981. Charles raised no objection to this
order.
The District Court concluded that Charles must pay one-
half of the child's anticipated orthodontic work necessary
for health rather than cosmetic reasons. This is merely
a reiteration of his obligation under the original decree.
Charles provided no support whatsoever for his allegation
that he is not bound to fulfill this responsibility.
The next issue is whether Charles is obligated to pay
Teresa's attorney's fees, and if so, in what amount.
The District Court's order of May 19, 1981, provided
attorney's fees to Teresa "in a reasonable amount to be
determined upon proof thereof." On June 26, 1981, a hearing
to determine attorney's fees was scheduled for July 22, 1981.
On July 16, 1981, Charles filed his notice of appeal from the
order of May 19, 1981. The hearing on attorney's fees was
held, as scheduled, on July 22, 1981. On October 6, 1981,
the District Court filed findings, conclusions, and an order
requiring Charles to pay attorney's fees in the amount of
$2,200.64. On October 8, 1981, Charles filed his notice of
appeal from the order of October 6, 1981.
Charles contends, first, that the award of attorney's
fees in the order of May 19 was improper because at that
time the District Court had not yet made findings regarding
the relative abilities of each party to pay attorney's fees
and regarding Teresa's necessity for reimbursement of her
attorney's fees. The findings filed on October 6, do not
remedy the absence of the required findings, Charles argues,
because the order of May 19 (ordering the payment of attorney's
fees in an amount to be determined upon proof thereof), had
already been appealed to this Court.
The first notice of appeal filed by Charles from the
Nay 19, 1981 order was premature. In the order, the court
indicated it would award attorney's fees to be determined
upon proof. The May 19, 1981 order was obviously not final,
and appeal lies only from a final judgment or order, or
an order otherwise provided for in Rule 1, M.R.App.Civ.P.
The findings which determined the amount of attorney's fees
were the District Court's findings of October 6, 1981, from
which Charles properly appealed. Section 40-4-110, MCA,
provides that a District Court may, from time to time, "after
considering the financial resources of both parties," order
the payment of reasonable attorney's fees. The ~istrictCourt
followed the statutory procedure in this case, because it
did not set the dollar amount of such fees until it had
considered the applicable factors, including the financial
resources of the parties. The order of October 6, 1981, based
upon the District Court's findings, was a final judgment or
order from which Charles could appeal. Thus, on this facet
of the appeal, it is appropriate for us to consider the
findings of October 6, 1981 in determining whether the award
of $2,200.64 in attorney's fees is proper in the case.
Charles next argues that if we conclude, as we have,
that Teresa is entitled to attorney's fees, then the amount
awarded in this case is unreasonable. He submits that the
amount of money involved in the underlying dispute and the
result eventually achieved do not justify attorney's fees in
excess of $2,000. In support of this position he cites
Crncevich v. Georgetown Recreation Corporation (1975), 168
Mont. 113, 541 P.2d 56, where we stated:
"'The authorities are unanimous in holding
that the plaintiffs are entitled to recover
a reasonable attorney fee, and for the purpose
of determining the amount of such fee the
following rule has been laid down: "The cir-
cumstances to be considered in determining the
compensation to be recovered are the amount
and character of the services rendered, the
labor, time, and trouble involved, the character
and importance of the litigation in which the
services were rendered, the amount of money or
the value of property to be affected, the
professional skill and experience called for,
the character and standing in the profession
of the attorneys . . . The result secured by
the services of the attorney may be considered
as an important element in determining their
value [citing Forrester & MacGinniss v. B. &
M. Co. (1914), 29 Mont. 397, 409, 74 P. 1088,
10931 " ' " 168 Mont. at 119-120, 541 P.2d at 59.
Section 40-4-110, MCA, provides statutory authority for
the award of attorney fees in the present case:
"Costs-attorney's fees. The court from time
to time, after considering the financial
resources of both parties, may order a party
to pay a reasonable amount for the cost to the
other party of maintaining or defending any
proceeding under chapters 1 and 4 of this title
and for attorney's fees, including sums for
legal services rendered and costs incurred
prior to the commencement of the proceeding or
after entry of judgment . . ."
The standards for determining the reasonableness of
attorney's fees are set forth in Crncevich, supra, and a
multitude of marriage cases, representative lists of which
can be found in In Re Marriage of Grace (1982), - Mont. -I
643 P.2d 1188, 1190, 39 St.Rep. 791, 793, and Duffey v.
Duffey (1981), Mont . -
" , 631 P.2d 697, 699, 38 St.Rep. 1105,
Duffey, supra, states that written findings are required
to establish the financial needs of the parties and the
reasonableness of the award of attorney's fees. 631 P.2d at
699, 38 St-Rep. at 1107. In the present case the District
Court made written findings regarding need and reasonableness.
These findings are supported by the evidence from the two
hearings. The relative financial positions of the two
parties was thoroughly presented in the first hearing.
With specific regard to the reasonableness of the fee, the
evidence indicates that the circumstances outlined in Crncevich,
supra, were considered by the District Court. Furthermore,
it is clear from the record that the District Court was
apprised of the financial resources of both parties and that
these resources were considered in reaching the judgment as
required by section 40-4-110, MCA.
Charles contends that the attorney's fees should be pro-
rated on the basis of Teresa's rate of success on the various
claims she raised against him. The discretion of the District
Court to award attorney's fees in marital cases is to be
based upon the District Court's discernment of the case as a
whole. In determining fees, the District Court is not required
to dissect the anatomy of the lawsuit to find a bone here,
s r i fat there and solid meat elsewhere.
ote Unless there is an
abuse of discretion we will not disturb the court's award of
attorney's fees. We find no abuse in this case.
The third issue addresses the District Court's verbatim
adoption of Teresa's proposed findings of fact and conclusions
of law.
We have discussed this issue many times. See, City of
Billings v. Public Service Com'n. (1981), - Mont . -, 631
P.2d 1295, 38 St.Rep. 1162; In Re Marriage of Jensen (1981),
- Mont. - 631 P.2d 700, 38 St.Rep. 1109; In Re Marriage
,
of Beck (1981), - Mont. - 631 P.2d 282; 38 St.Rep. 1054;
,
Tomaskie v. Tomaskie (1981), - Mont. - 625 P.2d 536, 38
St.Rep. 416. We have stated repeatedly that we disapprove
of the wholesale adoption of proposed findings and conclusions.
We have also stated, however, that in reviewing a District
Court's findings, regardless of their source, we are governed
by Rule 52(a), M.R.Civ.P.; Jensen, 631 P.2d at 703-704, 38
St-Rep. at 1113. The findings of the District Court in the
present case are not clearly erroneous. Furthermore, the
District Court's conclusi~nsoflaw properly reflect the laws
of Montana.
The judgment of the District Court is affirmed in all
respects except the award of delinquent support payments.
Justice
We Concur-
/ i