McConnell v. Dempster ( 1982 )

No. 82-184
I N T E SUPREME COUKT O THE STATE O F MONTANA
H F
1982
EARL I?. McCONNELL,
P l a i n t i f f and A p p e l l a n t ,
VS.
N I N A R. DEWSTER, f o r m e r l y
known as N I N A R. McCONNELL,
Defendant and Respondent.
Appeal from: D i s t r i c t Court of t h e E i g h t e e n t h J u d i c i a l . D i s t r i c t ,
I n and f o r t h e County o f G a l l a t i n
Honorable W. W. L e s s l e y , Judge p r e s i d i n g .
Counsel o f Record:
For P l a i n t i f f :
Berg, C o i l , S t o k e s & T o l l e f s e n ; Michael C . C o i l , Bozeman,
Montana
For Defendant:
M o r r o w , S e d i v y , Olson & Eck; Edmund P . S e d i v y , Bozeman,
Montana
S u b m i t t e d on b r i e f s : August 1 9 , 1982
Decided: September 1 0 , 1982
4. Determine there is a clear abuse of the discretion
of the District Court.
5. Decide that there was an arbitrary exercise of
discretion without the employment of conscientious judgment.
6. Hold that child support payments may only be modified
upon a showing that there are changes in the situation of the
child so substantial and continuous as to make the original
child support payments unconscionable.
However, the primary and only issue we need to address
is whether the District Court's judgment of May 21, 1981, is
supported by substantial credible evidence.
On review, this Court must determine whether there is
sufficient evidence in the record to sustain the findings of
the District Court. Only when the findings of the District
Court are clearly erroneous will they be set aside. Rule
52(a), M.R.Civ.P.; Baer v. Baer (1982), - I l nt
Yo . -, 647
P.2d 835, 39 St.Rep. 1178.
The record shows that the father proposed the establishment
of a trust for the benefit of the child; the mother's expense
to support the child is between $210 and $260 per month; the
mother is providing housing and transp~rtationfor the child
and the father of the child is able to provide $200 per month
for the child's support and $100 per month in trust for the
child's future. In this case, the mother is supplying
substantial support by providing housing and transportation.
There is substantial credible evidence in the record
to affirm the judgment of the District Court. Therefore,
the determination of the father's child support obligation
is not clearly erroneous. Rule 52 (a), M. R. Civ. P .
Affirmed.
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Appeal by husband Earl P. McConnell from a judgment
against him in the District Court, Eighteenth Judicial
District, Gallatin County. He was ordered to pay to Nina R.
Dempster, wife and respondent $200.00 per month child support
for their minor son and $100.00 per month to a trust established
for the child. We affirm the ~istrictCourt.
This petition for modification of a child support
provision by the mother against the father on behalf of the
minor child, Clinton Earl McConnell, was previously before
this Court. In Dempster v. McConnell (1981), - Mont .- I
622 P.2d 680, 38 St.Rep. 121, the appeal was remanded to the
District Court for entry of consistent findings and con-
clusions in conformity with the opinion of this Court.
A motion to enter judgment on remittitur was made and
argued on May 11, 1981. The District Court's judgment on
remittitur, entered May 21, 1981, stated:
"That Plaintiff shall pay the sum of Two Hundred
Dollars ($200.00) per month, plus medical and
dental bills of Clinton Earl NcConnell, beginning
July 1, 1981; that an additional One Hundred
Dollars ($100.00) shall be paid into a trust fund
established in the name of Clinton Earl McConnell,
said trust to be for the boy's exclusive use. The
Petitioner and Respondent shall be co-Trustees charged
with the care and accounting of said trust fund."
The father appeals this order and asks this Court to:
1. Decide whether there is substantial credible
evidence to support the findings and conclusions.
2. Overturn the findings and conclusions if there is
a clear preponderance of evidence against them.
3. Consider the evidence in the light most favorable
to the prevailing party.
We Concur: