Fuller v. Fuller ( 1980 )

McFADDEN, Justice.

This is an appeal from an order by the district court modifying a divorce decree of the parties by increasing the child support payments to be made by the defendant-appellant to $75.00 per month for each of the two children of the parties. The order of modification is affirmed.

In 1969, the plaintiff-respondent (Beverly Fuller) and the defendant-appellant (Bruce Fuller) were divorced. Respondent received custody and control of the two minor children of the parties. Appellant was ordered to pay $140.00 per month per child in support. In 1975, upon petition by appellant, an order was entered modifying the support obligation by reducing the payments to be made for each child to $25 per month. No further changes were made until the present proceeding was initiated by respondent filing a motion for modification to increase the support payments for each of the two children.

In May, 1978, respondent moved for a modification of the divorce decree seeking an increase of the monthly payments from $25 to $75 per month for each child on the ground of a permanent, material and substantial change of circumstances since the previous modification of the decree. This motion was accompanied by an affidavit by respondent which in summary recited that the original decree of divorce had been entered June 4, 1969, under which appellant was to pay $140 per month per child for their support; that at that time appellant was earning approximately $800 to $1000 per month; that in January, 1975, an order was entered reducing the child support payments to $25 per month per child; that the reduction was in large part due to the medical problems suffered by the appellant; that surgery for the problem appeared to be successful to the best of affiant’s knowledge and the medical problems and expenses were no longer present; that respondent, the affiant, was employed earning $3.93 per hour, seven and a half hours per day five days a week, and she had no other income except the $25 per month per child; that she was unable to discover the present nature of appellant’s employment but that she had been told he was working full time; that the expenses of the two minor children, boys 13 and 11 years of age, require increased expenditures for their support due to their ages, and that she had another child solely dependent upon her wages.

Respondent also presented a form of an order to show cause to the trial court for execution. This order, which the trial court signed, required appellant to appear before the court on June 9, 1978, to show cause why the child support should not be increased to $75 per month per child. The order to show cause also advised appellant that under the provisions of I.R.C.P. 6(c)(3) that if he intended to produce testimony and evidence at the hearing or to cross-examine respondent or her affiants, he must give twenty-four hours written notice to the court and counsel. The order also provided that respondent will produce testimony and evidence at the show cause hearing and will cross examine appellant and any other affiant.

The order, together with the motion for modification of the divorce decree, affidavit and notice of hearing, and order to show cause were served by mail on the defendant on May 12, 1978.

At the hearing held on June 23, 1978, the appellant appeared by counsel. The trial court noted that appellant had not filed with the court any notice of intention to cross examine or produce testimony. And, although the appellant did not file any counter-affidavits, he did, by his counsel, advise the court that he resisted the motion. The trial court, after hearing argument by counsel, granted the motion and stated “[t]he defendant will be required to contribute towards the support of those minor children at the rate of $75 per child per month.” Counsel for respondent was directed to prepare the necessary order, and the order was signed by the court on June 26, 1978.

Appellant appealed from the order increasing the child support payments. He contends that the order to show cause was invalid because (1) there was no “application” and (2) the supporting affidavit was insufficient to meet the requirements of the Idaho Rules of Civil Procedure. Where, as here, the appellant had already appeared in the action by seeking the prior modification, an order to show cause is simply a notice of motion. It is in the nature of a citation to a party to appear at a stated time and place and to show why the requested relief should not be granted. Sturm v. Sturm, 138 Cal.App.2d 25, 291 P.2d 527, 529 (1955). See Berry v. Board of Parole, 148 Colo. 547, 367 P.2d 338, 339 (1961). I.R.C.P. 6(c)(2) provides “[a]ll applications for an order to show cause must be accompanied by an affidavit . . . .” However, the rule does not define what constitutes an “application” nor is there any case law on the subject. It seems evident, though, that the presentation to the court for signature of an order to show cause accompanied by a motion for modification of decree of divorce, an affidavit in support of the motion, and notice of hearing, as was done in this case constitutes an “application” within contemplation of the rule. The trial court recognized it as such when it executed the order to show cause. The claimed deficiency, if any, in a formal request could not have confused the appellant as to the relief sought, for the documents were clearly labeled and the request well outlined. See Sturm v. Sturm, supra, 291 P.2d at 529. Reasonable specification is all that is required in order that the opposing party cannot assert surprise or prejudice. Patton v. Patton, 88 Idaho 288, 292, 399 P.2d 262, 264-65 (1965).

The appellant also contends that the order was invalid because the supporting affidavit did not set forth the financial conditions of each party with specificity as provided in I.R.C.P. 6(c)(2). The rule only requires a prima facie showing for the issuance of such an order. The affidavit presented the financial condition of the respondent in sufficient detail, and as much information as reasonably could be ascertained about the appellant. If appellant believed that the affidavit was insufficient or the application improper it was incumbent upon him to object by motion or affidavit.

As pointed out, the trial court did not allow the appellant to produce any evidence at the hearing on the order, but the trial court considered the issue as presented by the respondent’s affidavit, motion for modification, and order to show cause, against which no counter-affidavit had been submitted by appellant, nor had any notice been given by him of his election to “produce testimony and evidence at the hearing, or to cross-examine the adverse party or his affiants.” As previously pointed out, I.R. C.P. 6(c)(3) requires one intending to oppose the order by presentation of testimony or cross-examination of the adverse party to give at least twenty-four hours notice of that intent. The appellant had ample time between the notice of the hearing and the hearing date given by such notice. The order to show cause contained explicit directions that twenty-four hour advance notice was required of one’s intention to oppose the motion by presentation of witness testimony or cross-examination of the adverse party or his affiants. Having failed to give such notice the appellant cannot complain that he was denied his right to due process.

The appellant’s final argument is that there were insufficient facts before the court to justify a modification in the divorce decree by increasing the child support payments. It is well settled in Idaho that a modification of child support payments can be made only where there is shown to be a material, permanent, and substantial change in conditions and circumstances. Daniels v. Daniels, 82 Idaho 201, 205-206, 351 P.2d 236, 238-39 (1960). In a divorce action or modification thereof, the amount awarded to a mother for child support rests in the sound discretion of the trial court. Embree v. Embree, 85 Idaho 443, 450-51, 380 P.2d 216, 221 (1963). Only where there is a manifest abuse of discretion will the determination of the trial court be interfered with on appeal. Embree at 451, 380 P.2d 216. We find no abuse by the trial court here.

The respondent provided the court with the details about her income and the necessity of supporting four individuals with that income. Although she did not set out the facts as to the two boys’ actual expenses, the trial court determined that she is unable to meet their reasonable expenses with her current salary and that she stated sufficient information about changed circumstances. Apparently the appellant sought a modification of the divorce decree in 1975 because he was not working and suffering from medical difficulties. Respondent’s affidavit reflected that these problems are now solved and he is working full time. In addition, the trial court can take judicial notice of the general decline in the purchasing power of the dollar. Hooton v. City of Burley, 70 Idaho 369, 219 P.2d 651 (1950). The boys are now four years older than at the time of the original modification and it was self evident to the trial court that additional funds were necessary to meet their basic needs. The amount requested by the respondent was far less than that awarded in the original divorce decree. This court cannot say that the trial court abused its discretion in making the award or that it is unreasonable in amount under the facts.

The order modifying the divorce decree is affirmed. Costs, including attorney fees, are awarded to respondent.

DONALDSON, C. J., BAKES, J., and HARGRAVES, J. Pro Tern., concur.