In Re the Marriage of Richardson , 202 Mont. 380 ( 1983 )

No. 82-313
IN THE SUPREIm COURT OF THE STATE OF MONTANA
1.983
IN RE THE MARRIAGE OF
SHERYLE SO RICHARDSON,
Petitioner and Respondent,
and
WAYNE LYNN RICHARDSON,
Respondent and Appellant.
Appeal from: District Court of the Fourth Judicial District,
In and for the County of Missoula
Honorable James B. Wheelis, Judge presiding.
Counsel of Record:
For Appellant:
Ronald MacDonald, Missoula, Montana
Datsopoulos, MacDonald & Lind, Plissoula, Montana
For Respondent:
Terry Wallace, Missoula, Montana
Submitted on briefs: December 2, 1952
Decided: February 4, 1983
Clerk
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of
the Court.
On April 2, 1982, the District Court of the Fourth
Judicial District issued findings of fact, conclusions of law
and an order finding the parties' original decree of divorce
unconscionable and modifying that decree. Wayne Lynn
Richardson now appeals the modifications of the original
decree.
Sheryle Jo and Wayne Lvnn Richardson were married on
June 3 , 1966. Five children were born to the couple during
their marriage. A petition for dissolution of the marriage
was filed bv Sheryle on January 12, 1979. The parties
entered a voluntary separation agreement on February 26,
,1979, which settled their property rights and other marital
coilcerns and obligations. The agreement was incorporated
into the final decree of dissolution, also dated February 26,
The clauses of the separation agreement relevant to this
appeal are:
Child Support: Commencing on the 1-0 day of March,
1979, Second Party [husband] agrees to pay to First
Party [wife] as and for support and maintenance of
the children, the sum of One Hundred and No/l00
Dollars ($100.00) per month, per child, said
payments to continue until each child shall have
gained majority, or become emancipated, married, or
die, whichever occurs at an earlier date, and upon
the occurrence of such an event, no subsequent
payment shall be made. All payments to be made
hereunder shall be made through the Office of Clerk
of Court.
XVIII .
Maintenance: Commencing on the 10 day of March,
1979, Second Party agrees to pay to First Party as
and for her maintenance the sum of Five Hundred and
No/100 Dollars ($500.00) per month, said payments
to continue until First Party shall remarry, die,
or until the youngest child - - parties shall
of the
reach the age of eighteen years, whichever occurs
at an earlier date, and upon the occurrence of such
event no subsequent payment shall be made . . , "
(emphasis supplied.)
Sheryle Richardson remarried on November 14, 1981. At
that time, her child support payments had increased to
approximately $126.00 per month, per child, or $629.00 per
month. The maintenance payments had also increased to
$629.00 per month. The maintenance payments ceased upon her
remarriage. Subsequently, Sheryle filed a motion to increase
her child support payments on the grounds that her $629.00
per month decrease in income made the child support payments
unconscionable.
A hearing was held February 3 and February 8, 1982,
following which the child support payments were increased to
$225.00 per month, per child. The increase in child support
is approximately equivalent to the maintenance payments lost
due to the remarriage.
In appealing this increase, Wayne Richardson presents
this Court with the following issue:
Is the remarriage of a former spouse, which by the terms
of the Decreee terminates maintenance, a substantial change
in circumstances allowing for an increase in the child
support payments?
We hold that in this particular case, it is and affirm
the decision of the District Court.
We have repeatedlv held in dissolution cases that the
findings of the District Court will not be overturned unless
clearlv erroneous. Tidhall v. Tidball (1981), Mont.
-
1 ,
- 625 P.2d 1147, 1150, 38 St.Rep. 482, 485. The
decision of the District Court to increase the child support
payments was not clearly erroneous.
Sheryle voluntarily remarried and thus forfeited her
maintenance payments. The District Court is not forbidden
from considering voluntary reductions of income as a reason
for modifying child support payments. In Rome v. Rome
(19811, Mont . , 621 P.2d 1090, 38 St.Rep. 50, we
held that the District Court may consider an ex-husband's
vo1unta.r~reduction of income when determining whether child
support payments should be lowered. In Rome, we stated:
"Although we hold tha.t a reduction in ability to
pay brought about through a voluntary change in
circumstances is not, in itself, su-fficient to
mandate a modification of support, neither do we
approve the view that self-imposed changes can
never be considered as reasons for modification.
The better approach is to allow the judge to
consider the nature of the changes and the reasons
for the changes, and then to determine whether,
under all the circumstances, a modification is
warranted. " Supra, Mont. at , 621 P.2d at
1092, 38 St.Rep. at 52.
Here, the District Court judge considered all the
circumstances before determining that a modification was
warranted. The undisputed findings indicate that Sheryle's
current income is approximately $680 per month, including
$523 per month from her current husband's income.
Disregarding her current husband's income, Sheryle Richardson
lost $629 per month when she remarried. In comparison,
Wayne's gross personal income for 1981 was nearly $57,000, or
$4800 per month.
Further, it is apparent from the maintenance clause of
the 1979 separation agreement that maintenance was to be
used, in part, for support of the children. The clause
specifically provides that if Sheryle does not die or remarry
prior thereto, her maintenance payment will cease when the
youngest child of the parties attains the age of eighteen.
Here there is a recognition of greater need for maintenance
during the time the children must be supported.
Irrespective of our view of the proof, there is
substantial credible evidence to support the District Court
and therefore, the order modifying payments is affirmed.
We concur: