In Re the Marriage of West , 212 Mont. 374 ( 1984 )

No. 83-517
IN THE SUP-ME COURT OF THE STATE OF MONTANA
1984
IN RE THE MARRIAGE OF
EARLENE D. WEST,
Petitioner and Appellant,
and
ARTHUR C. WEST,
Respondent and Respondent.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable H. William Coder, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Alexander & Baucus; Gary M. Zadick, Great Falls,
Montana
For Respondent :
Marra, Wenz, Johnson & Hopkins, Great Falls,
Montana
Submitted on Briefs: July 27, 1984
Decided: September 24, 1984
Filed: stp :
,
Clerk
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
The petitioner and mother, Earlene D. West, appeals from
a judgment of the Cascade County District Court denying her
petition for modification of an existing child support order
and request for attorney fees. This is the second time this
case comes to us on appeal-. We remanded this case once
before for the trial court to take additional evidence and
make additional findings. West v. West (Mont. 1983), 661
P.2d 1289, 40 St.Rep. 573. However, we still cannot properly
review this case on the merits because neither the parties in
their evidence nor the court in its findings and conclusions,
properly focused on the financial needs of the children, as
required. Duffey v. Duffey (Mont. 1981), 631 P.2d 697, 38
St.Rep. 1105.
The mother's petition for modification of the existing
child support order, made pursuant to section 40-4-208, MCA,
requires her to prove a change in circumstances so
substantial and continuing as to make the existing child
support order unconscionable. In determining whether such a
change has been proved, the law requires consideration of the
financial needs and resources of the children as well as the
financial needs and resources of the mother and father.
Duffey , supra. However, the financial needs of the children
were virtually ignored.
The evidence reveals that the father, now remarried, has
sufficient financial resources to meet his own needs and pay
a greater child support obligation as well. Although the
father claimed, and the trial court found, that the father
does not have enough cash to pay increased child support, the
evidence demonstrates otherwise. Between February 19, 1982,
and June 20, 1983, the father had sufficient cash to retire
$42,500 worth of principal on his sole significant debt of
$50,000. During that time period the father also had
sufficient cash to purchase snowmobiles at a cost of $3,000,
to replace the siding and windows on his current home at a
cost of approximately $5,000, to purchase three pictures at a
cost of $1,000, and to purchase a gun and reloading equipment
at a cost of $300. The evidence also shows that the father's
income for the year 1982 was $89,907. Whi1.e the father's
acquisition of equity in various building projects may be
partially responsible for this substantial income, it is
clear from the large cash expenditures that the father has
the financial capability to pay an increased child support
obligation.
On the other hand, the financial needs and resources of
the mother, indicate that her ability to support herself and
her minor children has declined. Since the entry of the
existing child support order in 1979, the uncontroverted
evidence demonstrates that the cost of living has increased
for the mother and her minor children, particularly for items
such as utilities, food, and the cost of operating an
automobile. Since that time, the mother has also lost the
social security disability payments which she had been
receiving for the previous five years, and has had to
supplement her income with public housing assistance, energy
assistance and food stamps. The record also shows a monthly
deficiency of $396 between the mother's monthly income and
her monthly expenses. The mother is finding it increasingly
difficult to meet her own support needs, let alone those of
her minor children.
The father argues that the mother's deteriorating
financial position was solely caused by several voluntary
changes made by the mother. These changes include moving her
family from an unmaintained house to a maintained apartment
which is more expensive, and allowing the parties' adult son
to 1 ive in her home. Although the father attacks the
mother's judgment and financial mamagement skills, he appears
to he content to leave the major share of the parenting to
the mother. It makes no sense for the fa-ther to attack the
mother's capabilities to manage her home and finances, and
yet to neither move for a change in custody nor to suggest
any solutions to a.lleviate the detrimental effects upon his
children if they are suffering from the mother's inability to
manage the family's finances.
Finally, the trial court must consider the financial
resources - needs of the children.
a.nd The court considered
their resources and found that the children have no assets,
no independent sources of income and no other means by which
to provide for their own sustenance. However, the trial
court made no findings on the needs of the children.
Unfortunately, the only evidence on their needs is an
uncontroverted statement by the mother that as the children
have gotten older, their needs and wants have increased.
Nonetheless, the trial. court should not have disregarded this
statement, as it did establish the mother's threshhold
evidentiary burden of proving that the needs of the children
have increased. At this point if the parties did not present
further evidence, the tri-a1 court nonetheless should have
inquired further into the children's needs. Based on the
evidence obtained, the trial court should have entered
findings and conclusions on the financial needs of the
children, a d-etermination that is essential when considering
a petition for modification of child support.
The financial disparity between the financial needs and
resources of the mother and father, occurring since the entry
of the existing child support order in 1979, surely proves
the inability of the mother to provide for the support of the
children and the ability of the father to do so. However, an
order for increased child support cannot be entered without
first determining whether the current support payments are
adequately satisfying the financial needs of the children.
We vacate the order of the District Court and remand for
an evidentiary hearing to determine whether the financial
needs of the children cannot be met by the current level of
support payments. Based on this evidence, the Court shall
enter proper findings.
We Concur:
Mr. Chief ~udkticeFrank I. Haswell dissents and will file a
written dissent later.