In Re the Marriage of Thane , 238 Mont. 349 ( 1989 )

NO. 8 8 - 6 0 6
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
IN RE THE MARRIAGE OF
JUDITH ELAINE THANE,
Petitioner and Respondent,
and
DENIS PATRICK THANE,
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Respondent and Appellant. C. 3
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APPEAL FROM: District Court of the Fourth Judicial ~istrict,. --
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In and for the County of Missoula, r- -
The Honorable Jack L. Green, Judge presiding.
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COUNSEL OF RECORD:
For Appellant:
James P. O'Brien, Missoula, Montana
For Respondent :
Christopher Daly, iss sou la, Montana
Submitted on ~riefs: May 4, 1 9 8 9
Decided: August 7, 1989
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'Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Denis Patrick Thane appeals from a judgment in the
District Court, Fourth Judicial District, Missoula County,
requiring him to pay to Judith Elaine Thane, his former wife,
the sum of $150 .OO per month for each of two children, the
progeny of their former marriage. We affirm.
eni is patrick Thane (patrick) contends on appeal that
because he and Judith Elaine (Judith) obtained a joint
marital dissolution of their marriage in 1981, under a decree
which contained no provisions for child support, that the
~istrictCourt had no jurisdiction after more than two years
to modify the decree with respect to child support. Patrick
also contends that the District Court abused its discretion
by concluding that the circumstances between the parties had
changed so substantially that the terms of the 1981 decree
had become unconscionable.
Patrick and Judith were married on August 8, 1970.
Their marriage was dissolved following a joint petition for
dissolution in the same District Court by a decree issued on
June 9, 1981. The decree of dissolution granted joint
custody, care and control of the minor parties, Erin ~ennifer
Thane and Jason ~hristopher Thane with equal rights and
privileges in the parents respecting all decisions to be
made. The dissolution decree further required Patrick to
carry medical and dental insurance on the minor children of
the parties.
On June 13, 1986, Judith filed a petition for
modification of child support in the District Court. On
August 29, 1986, Judith also filed a motion for temporary
support. On January 9, 1987, the District Court granted
temporary child support to the respondent, which grant was
upheld on a subsequent motion for reconsideration. On June
17, 1988, a hearing was held on the original petition for
modification dated June 13, 1986, after which the District
Court issued findings of fact, conclusions of law and order
dated July 25, 1988, which granted Judith child support in
the monthly amount of $150.00 per child to be paid by Patrick
to Judith. This appeal followed.
On the issue of lack of jurisdiction in the District
Court, Patrick contends that at the time of the original
dissolution, no child support was sought by Judith and none
was included in the original decree of dissolution. He
contends that since no child support was awarded in the
original decree, the decree cannot be modified to provide
child support under the provisions of B 40-4-208(2) (a), MCA.
He relies on Marriage of Cooper (Mont. 1985), 699 P.2d 1044,
and Marriage of Hagemo (Mont. 1988), 749 P.2d 1079.
It is provided in § 40-4-208 (2)(a), MCA, that:
Whenever the decree proposed for modification does
not contain provisions relating to maintenance or
support, modification under subsection (1) may only
be made within two years of the date of the decree.
The District Court determined in its conclusions of law that
because the decree of dissolution contained a specific
provision relating to Patrick's obligation to provide
support, i.e., medical and dental insurance, the District
Court had jurisdiction to modify the decree.
The District Court had the provision of health insurance
and more to rely on in asserting jurisdiction for the purpose
of modification. In the original decree, the District Court
had decided that it was in the best interests of the minor
children that the parents have joint custody, care and
control, with equal rights and privileges, and with all
decisions affecting the welfare of the children to be made by
the mutual consent of the parties. Under this provision of
the decree, since the dissolution, the children have been
shared equally between the parents as far as custody and
support is concerned. The result has been that the children
have spent as much time in the home of the father, receiving
there shelter and support, as they have in the home of the
mother. There is no argument that this arrangement was what
was contemplated by the parties at the time of the original
decree of dissolution. There can be no doubt that the equal
sharing of the sheltering and support of the children from
and after the decree of dissolution was in effect an award of
one-half of the cost of supporting the children to the
husband. If, in fact, the District Court had intended that
the husband pay no child support, then the court would have
been under a duty to state the reasons for not ordering child
support from a parent from whom a duty of support existed,
under S 40-4-204(2), MCA. The original decree of dissolution
is bare of any statements by the court as reasons for not
requiring child support from the father.
Thus, the two year statute after which decrees may not
be modified in the circumstances described in 5
40-4-208(2) (a), MCA, is not met here. Both in providing
directly for health insurance for the children and in
providing for their joint care and support, the District
Court in effect required child support from the husband and
so had jurisdiction to modify the child support provisions
even after the lapse of two years.
The second prong of Patrick's appeal is that the
District Court had no basis upon which to find that the
method of child support was unconscionable. Section
40-4-208(2) (b), MCA, provides that when a decree proposed for
modification contains provisions relating to maintenance and
support, modification may be had only upon a showing of
changed circumstances so substantial and continuing as to
make the terms unconscionable, unless the parties consent
otherwise.
The findings of the District Court with relation to the
care of the children are that the children have been well
cared for in both homes and have warm relationships with both
parents. Both parents have provided for all of the needs of
the children including food, shelter, health, social and
recreational and academic needs.
The findings further show that after the dissolution,
the wife became employed and that her income has increased
from the time of the dissolution with relatively little
earnings to $13,035.00. To obtain this income, she worked at
community ~ospital 24 hours a week at $7.41 per hour and at
State Farm Insurance Company for 31 hours a week at $5.25 per
hour. Her mother contributes $150.00 monthly to Judith's
support.
The husband is certified as an elementary teacher in
Missoula and earns more than $30,000.00 per year with a net
take home pay of $1,817.00 per month. Since the dissolution,
his annual income has increased from $23,838 in 1983 to
$30,677 in 1987, the last year shown in the findings. His
income increases each year. The husband does not work in the
summer months when school is out.
Judith intended to terminate her employment with State
Farm Insurance Company on or about September 1, 1988, and to
engage in cleaning houses at $7.00 per hour and selling
encyclopedias. She felt these jobs would be flexible in the
hours of work so that she would have more time for contact
with her children, especially her daughter. The wife has no
retirement plans or benefits other than available through her
employment at Community Hospital. Husband is able to carry
medical and dental insurance on the minor children of the
parties through his employment.
The District Court concluded that the child support
provision as constituted under the 1981 decree of dissolution
was unconscionable and should be modified because the parties
are presently bearing the support of the children equally but
the wife ha.s a lesser income than the husband. His income
has been increasing regularly each year while her income
varies and increases cannot be depended upon. Accordingly,
the District Court decided that the husband should pay
$300.00 per month in child support to equalize the
disproportionate burden currently being borne by the wife.
Essentially, Patrick argues against unconscionability on
two grounds 1) that there is nothing in the evidence to show
that there is a need by the children for his additional
support, and 2) his monthly expenses as exhibited to the
District Court show that he cannot afford the increased child
support required by the District Court.
It is true that in Marriage of West (Mont. 1984), 692
P.2d 1213, this Court remanded the cause for an evidentiary
hearing because the District Court had failed to make
findings on the needs of the children and this Court wanted
the District Court to determine whether those needs could be
met at the current level of support payments. That is not
the situation here. ~ u d i t his bearing one-half of the cost
of the support of the children although her annual income is
less than one-half of that of her former husband.
The needs and resources of the parents with respect to
child support are also factors to be looked at by the
District Court. Marriage of Callahan (Mont. 1988), 762 P.2d
205. Here the ~istrictCourt determined that patrick's net
take home pay was $1,817.00 per month and noted his claimed
current expenses of $1,850.00 per month. The ~istrictCourt
said this included a house payment at $696.00 per month and a
payment for savings of $100.00 per month.
The spirit of our law respecting child support is that
the parties will be required to contribute to the support of
the children in proportion to their ability to make such
contributions. Each case is decided on a case-to-case basis.
We established that requirement in Marriage of Carlson (Mont.
1984) , 693 P.2d 496, and continued it in adopting Guidelines
for Determining Child Support, effective January, 1987,
[Published in 44 St.Rep. 828 (1987), and in the Desk Book
published annually by the State Bar of Montana]. Because of
the disparity in the parties' incomes, the court found it
unconscionable that the wife should bear one-half of the cost
of supporting the children and fashioned a contribution from
the husband accordingly.
The changes in the couple's financial circumstances
since the dissolution were so substantial and continuing as
to make the earlier support arrangement unconscionable.
Marriage of Jensen (Mont. 1986), 727 P.2d 512. We uphold the
~istrictCourt on this issue.
Under Rule 54 (a), M.R.Civ.P., findings by a district
court are to be sustained by us, unless clearly erroneous.
We do not find the District Court in error and therefore
affirm.
We Concur:
Justices / /