Brandon v. Brandon, 94-360

• Decision Date: 09 May 1995
• Docket Number: No. 94-360,94-360
• Citation: 271 Mont. 149,52 St. Rep. 381,894 P.2d 951
• Parties: In re the Marriage of Paulette M. BRANDON, Petitioner and Respondent, v. Robert A. BRANDON, Respondent and Appellant.
• Court: Montana Supreme Court

Page 951

894 P.2d 951

271 Mont. 149

In re the Marriage of Paulette M. BRANDON, Petitioner and Respondent, v. Robert A. BRANDON, Respondent and Appellant.

No. 94-360.

Supreme Court of Montana.

Submitted on Briefs Feb. 23, 1995.

Decided May 9, 1995.

Daniel A. Boucher, Altman & Boucher, Havre, for appellant.

Chris R. Young, Young, Brown & Richardson, Havre, for respondent.

WEBER, Justice.

This is an appeal from a decision by the Twelfth Judicial District Court, Hill County, concerning modification of the court's initial dissolution order with regards to maintenance and child support. We affirm in part and reverse in part and remand.

The following two issues are dispositive of the case:

I. Did the District Court err by not using the Uniform Child Support Guidelines?

II. Did the District Court abuse its discretion by denying the husband's Motion to Terminate Maintenance?

Paulette Brandon (Paulette) and Robert Brandon (Robert) were divorced in 1986 after twenty-two years of marriage. Paulette retained physical custody of the two children, a son and a daughter, born to the marriage. At the time of the dissolution, Paulette worked as a beautician for only two and one half days per week for a total of $480 per month. Due to an increasing health deterioration caused by a double curvature of the spine, she had to leave her work as a beautician and take a job with the State of Montana as an inspector of beauty salons. The State job is full time, paying about $20,000 per year, and requires her to travel a good deal of the time.

Robert owns his own drapery and floor covering business and is remarried. Robert's total income for the last three years was $198,000 plus, or an average of $66,000 per year. Robert has been paying $300 per month for maintenance and until the daughter reached the age of majority, $350 for child support for two children. The daughter reached the age of majority in 1990, but the son, Kelly, is still a minor.

When Paulette began working full time she was required to move from Havre to Helena. Kelly remained in Havre living with his father. Robert did not stop the child support payments to Paulette despite Kelly living with him.

On November 9, 1993, almost two years after Kelly began living with his father, Robert moved the court for modification of provisions regarding custody, child support, and maintenance. On May 23, 1994, the court issued its Findings of Fact and Conclusions of Law stating that Robert must continue to pay maintenance to Paulette but that Robert could stop paying child support for those months he had custody of Kelly. The court also determined that Paulette did not have to pay support for Kelly.

Robert appeals the court ruling on maintenance and lack of support for Kelly.

I.

Did the District Court err by not using the Uniform Child Support Guidelines?

Robert argues that Paulette failed to present evidence to warrant non-application of the Guidelines. According to Robert, the court is required to use the Guidelines and the Guidelines require that Paulette pay at least a minimal amount of child support.

Paulette contends that she does not make enough money to support herself and that she should not have to pay child support. According to Paulette the District Court did give reasons for deviating from the Guidelines.

The District Court made various findings and conclusions with regards to the income earning capacity of the parents. We review the findings of the District Court as to whether the findings are clearly erroneous. Marriage of Eschenbacher (1992), 253 Mont. 139, 831 P.2d 1353. Conclusions of law are reviewed to see if the court interpreted the law correctly. In re Marriage of Barnard (1994), 264 Mont. 103, 870 P.2d 91. The court also made a determination that modification of maintenance was not warranted because its former decree was not unconscionable. A district court's overall decision on modification of child support awards is determined by whether the district court clearly abused its discretion. Marriage of Kovash (1995), --- Mont. ----, 893 P.2d 860.

In its conclusions of law, the court stated that:

2. The Court having found and concluded that the application of the statutory standards of Section 40-4-204, MCA, and Uniform Child Support Guidelines are inappropriate in this case, it is hereby ordered that the Petitioner [Paulette] shall not be required to pay past or future child support to the Respondent [Robert] for the times during which he has custody of Kelly.

The court alludes to its findings of fact when justifying its deviation from the Guidelines but it does not give us written specific findings. The Guidelines must be used in all cases. Section 40-4-204(3)(a), MCA. The court must produce "clear and convincing" evidence pursuant to § 40-4-204(3)(a), MCA, in order to justify its failure to follow the Guidelines. While the court issued findings, it did not do so in connection with its decision to deviate from the Guidelines.

In the Findings of Fact, the court stated that:

11. ... A combination of the Petitioner's declining health, physical limitations, limitations of employability and skills will cause the further decline in her standard of living....

Despite this finding, other findings state that Paulette has a full time job which she likes and which nets her $900 take home pay per month, twice what it was during the 1986 dissolution. During the division of the marital estate in 1986, she received approximately $170,000 in marital assets. In addition to this, she has no responsibility for either child now, the only minor son, at 16, is living with his father for most of the year. The daughter is an adult and married herself.

It is regrettable that Paulette suffers double curvature of the spine. But she is managing to work full time despite this malady. The court cannot base its determination of whether to use the Guidelines upon mere speculation that Paulette's health may deteriorate in the future.

The Guidelines themselves point out that:

REBUTTABLE PRESUMPTION (1) The guideline creates a presumption of the adequacy and reasonableness of child support awards. However, every case must be determined on its own merits and circumstances and the presumption may be rebutted by evidence that a child's needs are not being met.

(2) ... Any consideration of a variance from the guidelines must take into account the best interests of the child.

(3) A court or administrative hearing officer may find evidence to rebut the presumption and vary from the guidelines in a particular case only if the decree, separation order or support order contains a specific written finding showing justification that application of the guidelines would be unjust or inappropriate.

(4) Findings that rebut and vary the guidelines must include a statement of the amount of support that would have been ordered under the guidelines without a variance.

(5) A court or administrative hearing officer may vary from the guidelines based on a stipulation or agreement of the parties only if the stipulation or agreement meets the following criteria:

(a) it is in writing executed by the parties; (b) the parties have signed the stipulation or agreement free of coercion; (c) it...