In Re the Marriage of Barber

NO. 91-520
I N THE SUPREME COURT OF THE STATE OF MONTANA
1992
IN RE THE MARRIAGE OF
DORENE K . BARBER,
P e t i t i o n e r and R e s p o n d e n t ,
and
IiANDALL L. BARBER,
APPEAL FROM: D i s t r i c t Court of the T e n t h Judicial D i s t r i c t ,
I n and f o r t h e County of F e r g u s ,
The Honorable P e t e r L. Rapkoch, Judge presiding.
COUNSEL O F RECORD:
For Appellant:
Jon A. Oldenburg, ~ewistown,Montana
For Respondent:
S t u a r t R . Whitehair, Bozeman, Montana
S u b m i t t e d on ~ r i e f s : March 19, 1 9 9 2
Decided: April 2 1 , 1992
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Randall L. Barber appeals from an order entered by the
District Court for the Tenth Judicial District, Fergus County,
concerning his child support obligation arising from this dissolu-
tion of marriage. We affirm.
The issues are:
1. Did the District Court err in granting Mrs. Ruud reim-
bursement for insurance she purchased and medical bills she paid?
2. Did the court err in modifying the amount of child support
and in retroactively applying the modification to the time the
motion to modify was filed?
The marriage of Dorene K. Barber (Dorene) and Randall L.
Barber (Randy) was dissolved in September 1980. Dorene was granted
custody of the parties' two minor children. Randy was ordered to
pay child support of $125 per month per child and was to keep in
force a Blue Cross health insurance policy for the children.
On January 16, 1990, Dorene filed a motion for increased child
support, supported by affidavit. In her affidavit, she stated that
a change had occurred in the needs of the children as they got
older. She also stated that Randy had failed to pay child support
or to keep medical insurance on the children and that the chil-
dren's grandmother, Mrs. Ruud, had obtained medical insurance and
paid medical bills for the children.
Dorene and Mrs. Ruud both testified at the hearing on the
motion. Dorene testified, and the record reflects, that Randy has
been held in contempt for failure to pay medical bills, property
settlement payments, and child support.
Randy testified that in 1984 he lost the lease on the farm he
had been operating. He testified that for the next several years
he was able to obtain only sporadic temporary employment and was
not able to afford health insurance. He testified that he was
currently employed fulltime and carried health insurance on the
children but that he was earning less money than he earned in 1980.
After the hearing, the District Court ordered Randy to
reimburse Mrs. Ruud $2,649.15 for the medical insurance she
purchased and expenses she incurred on behalf of the children.
Noting an absence of evidence on Dorene's unemployment and the
reasonableness thereof, the court denied the request for an
increase in child support. Both parties requested reconsideration
of the order.
A second hearing was held at which the attorneys presented
further argument. The court then issued an order again granting
Mrs. Ruud reimbursement of $2,649.15 and granting an increase in
child support to $435 per month. It denied Dorene1s request that
Randy be required to pay off an arrearage in child support at a
rate greater than the $25 per month previously set. Randy appeals.
I
Did the District Court err in granting Mrs. Ruud reimbursement
for insurance she purchased and medical bills she paid?
Randy points out that Mrs. Ruud is not a party to this action
and asserts that her claims were not properly before the District
Court. He maintains that his opportunity to defend against her
claims was limited by the District Court's failure to require her
to file a complaint or formal motion. He also maintains that any
expenses she incurred for health insurance for the children were
voluntary on her part.
The claim for repayment to Mrs. Ruud was presented in Dorenets
affidavit in support of the motion for increased child support.
Randy had notice of this claim at least since the time the motion
was filed. Randy's counsel conducted extensive cross-examination
of Mrs. Ruud at the March 14, 1990 hearing. We conclude that he
was not deprived of an opportunity to defend against this claim.
Randy admits that he had an obligation under the decree of
dissolution to provide health insurance for his children and that
he did not do so from 1984 to the time of these proceedings, except
for a brief period in 1986. The District Court stated that "Mrs.
Ruud's actions were reasonable in light of [Randy's] continued
failure to live up to the terms of the original divorce decree."
Canceled checks and a written summary of the expenses Mrs. Ruud
incurred on behalf of the children were admitted into evidence. We
hold that the court did not err in granting Mrs. Ruud reimbursement
for insurance she purchased and medical bills she paid on behalf of
the children.
II
Did the court err in modifying the amount of child support and
in retroactively applying the modification to the time the motion
to modify was filed?
Randy claims that there has been no showing of changed
circumstances so substantial and continuing as to make the original
terms of child support unconscionable, as is required under 5 40-4-
208(2) (b)(i), MCA, before a modification of child support may be
made. He states that his economic condition is worse now than it
was when the decree of dissolution was entered and supports a
reduction in his child support obligation, if anything. He
maintains that his income, just over $15,000 annually, and Dorene's
unemployment require that this case be made an exception from the
standards set forth in the Uniform Child Support Guidelines.
When the parties' marriage was dissolved, the children were
three and five years old. Dorene testified that expenses for food,
clothing, school, and school activities for the children had risen
dramatically over the last ten years. Dorene's counsel pointed out
at the second hearing that Randy's support obligation under the
Uniform Child Support Guidelines would not change unless Dorene's
income exceeded $12,000 to $13,000 per year, and that even then it
would not change significantly.
An increase in child support may be justified based solely on
inflation and increased ages of the children. Johnson v. Johnson
(2983) , 205 Mont. 259, 262, 667 P.2d 438, 440; Reynolds v. Reynolds
(1983), 203 Mont. 97, 104, 660 P.2d 90, 94. It is recognized that
expenditures for teenagers are markedly higher than expenditures
for younger children. Uniform District Court Rule on Child Support
Guidelines (1987), 227 Mont. 1 , 9; and see current Montana child
support guidelines at 46.30.1549, ARM. We conclude that the
District Court did not abuse its discretion in ruling that ten
years of inflation and the maturation of the children from
preschoolers to teenagers were substantial and continuing circum-
stances justifying an increase in child support.
Randy also argues that making the increase in child support
retroactive to the time the petition for modification was filed,
eighteen months before the judgment, is unfair. He says that he
should not be penalized for the inordinate amount of time it took
the District Court to decide this matter.
Making a modification of child support retroactive to the time
of notice of the motion for modification is within the discretion
of the district court. Section 40-4-208(l), MCA. Randy was
employed at the time the petition for modification was filed. Ten
years of inflation and the increased needs of the teenage children
were present as factors at the time the petition was filed. We
hold that the District C o u r t did not a b u s e its discretion in making
the increase in child s u p p o r t retroactive to the time the petition
f o r modification of c h i l d support w a s filed.
Af f inned.
cancur:
April 21, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Jon. A. Oldenburg
Attorney at Law
Bank Electric Bldg.
Lewistown, MT 59457
STUART R. WHITEHAIR
403 West Mendenhall
P.O. Box 6493
Bozeman. MT 59715
Dorene K. Woody
P.O. Box 353
Denton, MT 59430
E D SMITH
CLERK O F THE SUPREME COURT
STATE OF MONTANA