In Re the Marriage of West ( 1983 )


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  •                                       No.    82-243
    I N THE SUPREME COURT O THE STATE O F M N A A
    F               OTN
    I N RE THE MARRIAGE O F :
    EARLENE C.       WEST,
    p e t i t i o n e r and A p p e l l a n t ,
    and
    ARTHUR C .      FJEST,
    Respondent and Respondent.
    Appeal from:         D i s t r i c t Court of t h e Eighth 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 C a s c a d e
    Honorable H. W i l l i a m C o d e r , J u d g e p r e s i d i n q .
    C o u n s e l o f Record:
    For Appellant:
    A l e x a n d e r a.nd Baucus, Great F a l l s , Montana
    Gary M. Z a d i c k , G r e a t F a l l - s , Montana
    F o r Respondent:
    M a r r a , F7en2, J o h n s o n and Hopkins, G r e a t F a l l s , Montana
    J o e Marra, G r e a t F a l l s , Montana
    S u b m i t t e d on b r i e f s :   September 3 0 , 1982
    Decided:         April 21,     1983
    Filed:    4PR 2 3 1983
    -
    Clerk
    Mr. Justice Daniel J. Shea delivered the Opinion of the
    Court.
    Petitioner Earlene West, appeals an order of the Cascade
    County District Court denying her petition for modification
    of a child support decree.                 She contends first that the
    evidence    is     insufficient       to   support     the    trial     court's
    findings, and second, that it was error for the trial court
    to adopt, verbatim, the proposed findings and conclusions
    submitted by the attorney for Arthur C. West, the father.
    Because the findings and conclusions fail to focus on the
    issues to be considered in a case such as this, we cannot
    review the case on the merits and we remand for another
    hearing and for entry of proper findings.
    The findings and conclusions presented to the trial
    court by the father, focus entirely on the father's inability
    to pay increased child support.             Not a mention is made as to
    whether the mother proved changed circumstances since the
    last    child     support   order.         In   adopting     verbatim    these
    proposed findings and conclusions, verbatim, the trial court
    failed to consider the factors set forth in section 40-4-208,
    MCA, which sets out the factors to be considered where a
    petition for modification of child support has been filed.
    Although    we    need   not   detail     the   evidence here, we
    believe the mother presented a prima facie case of changed
    circumstances that could have rendered the former decree
    unconscionable.         In adopting the father's proposed findings
    and conclusions verbatim the trial court simply focused on
    what the father wanted the trial court to focus on--the cash
    flow situation presented to the trial court by the father.
    A more accurate picture of the father's ability to pay
    could be obtained by an examination of the father's actual
    expenditures over this time period to support the life style
    in which he lived.          This life style was somehow more plush
    than the evidence of actual cash-flow he presented to the
    trial court.        Perhaps proper discovery would have revealed
    his actual ability to pay rather than his ability to pay
    based solely on the fa-ther's testimony to his cash on hand.
    We require trial courts to make specific and accurate
    findings which consider a.11 relevant factors.                     Duffey v.
    Duffey (19811, - Mont         . -,        
    631 P.2d 697
    , 38 St.Rep. 1105.
    This case demonstrates the need for such findings.                  Although
    the ability to pay is clearly a factor in determining whether
    to order an increase of child support, it does not dispose of
    the questions of whether the mother here has proved a change
    of circumstances which may have rendered a previous order of
    support unconscionable.         Here the trial court clearly failed
    to consider the factors set out in section 40-4-208, MCA,
    before concluding that the entire case could. be disposed of
    by a declaration that the father did not have the ability to
    pay increased child support.
    We   again   emphasize that we              discourage the verbatim
    adoption of findings and conclusions presented by one of the
    parties to the litigation.               See Sawyer-Adecor International
    v. Anglin (1982),             Mont   .        ,   
    646 P.2d 1194
    , 39 St.Rep.
    ,
    1118; In Re Marriage of Beck (1981), - Mont. - 
    631 P.2d 282
    , 38 St.Rep. 1054; In Re Marriage of Tomaskie (1981), -
    Mont   . -, 
    625 P.2d 536
    , 38 St.Rep. 416.          The losing party is
    entitled      to    know     that        he       received   the   thoughtful
    consideration of the judge deciding the case rather than the
    partisan consideration of the attorney representing the other
    side of the lawsuit.
    The order of the District Court is vacated and the case
    is remanded for another evidentiary hearing and for entry of
    proper findings and conclusions.
    We Concur:
    Chief Justice
    Mr. Justice L. C. Gulbrandson specially concurring:
    I concur in the result but
    therein.
    Mr. C h i e f J u s t i c e H a s w e l l , d i s s e n t i n g :
    I would a f f i r m t h e D i s t r i c t C o u r t .
    It    is    a waste         of    time      to    remand         this       case    to    the
    District        Court f o r        another       h e a r i n g and e n t r y of            findings.
    The D i s t r i c t C o u r t ' s f i n d i n g s r e f l e c t t h a t t h e h u s b a n d h a s
    no f u n d s t o p a y i n c r e a s e d c h i l d s u p p o r t , owes $ 5 0 , 0 0 0 w i t h
    i n t e r e s t a t 21-1/2% o n two n o t e s , t h a t h i s e x p e c t a t i o n s a r e
    f o r l e s s income i n 1 9 8 2 t h a n i n 1 9 8 1 , a n d t h a t much o f w h a t
    income he d o e s h a v e is i n t h e form o f u n m a r k e t a b l e e q u i t i e s
    in construction projects.
    In    short,       the     husband        is     unable          to     make    increased
    c h i l d s u p p o r t payments f o r l a c k of income.                       T h i s is a s u f f i -
    c i e n t b a s i s f o r denying t h e w i f e ' s             petition            for    increased
    c h i l d s u p p o r t u n d e r s e c t i o n 40-4-208,           MCA.        A f u r t h e r remand
    for    additional hearing                  and    findings w i l l              not    change      this
    simple f a c t .         The l a w d o e s n o t r e q u i r e i d l e a c t s .             Section
    1-3-223,       MCA.
    3 Ah 4f duts ~c w & ,
    C ie J     ti e
    

Document Info

Docket Number: 82-243

Judges: Shea, Gulbrandson, Haswell, Sheehy, Weber

Filed Date: 4/20/1983

Precedential Status: Precedential

Modified Date: 10/19/2024