In Re the Marriage of West

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