Marriage of Barnard, In re

• Decision Date: 10 March 1994
• Docket Number: No. 93-410,93-410
• Citation: 870 P.2d 91,264 Mont. 103,51 St.Rep. 173
• Parties: In re the MARRIAGE OF Janet H. BARNARD, Petitioner and Appellant, and Timothy Barnard, Respondent and Respondent.
• Court: Montana Supreme Court

Page 91

870 P.2d 91

264 Mont. 103

In re the MARRIAGE OF Janet H. BARNARD, Petitioner and Appellant,

and

Timothy Barnard, Respondent and Respondent.

No. 93-410.

Supreme Court of Montana.

Submitted on Briefs Jan. 20, 1994.

Decided March 10, 1994.

[264 Mont. 105] Jennifer Bordy, Bozeman, for petitioner and appellant.

James H. Goetz and Richard J. Dolan, Goetz, Madden & Dunn, Bozeman, for respondent and respondent.

TRIEWEILER, Justice.

Janet Barnard moved the District Court for the Eighteenth Judicial District in Gallatin County to modify the amount of child support provided for in its prior decree which dissolved her marriage to Timothy Barnard. The District Court denied her motion. She appeals from that order. We affirm the District Court.

Janet raises numerous issues on appeal. However, because of our resolution of the first issue, it is not necessary that they all be discussed. Therefore, we restate the dispositive issues on appeal as follows:

1. Did the District Court abuse its discretion when it concluded that the original award of child support was not unconscionable?

2. Did the District Court err when it concluded that the Montana Child Support Guidelines did not apply?

3. Did the District Court err when it refused to award attorney fees to appellant?

FACTUAL BACKGROUND

Janet and Timothy were married on July 5, 1980. Their daughter Shanon was born on June 9, 1981. The parties' marriage was dissolved on May 27, 1987, by a decree which incorporated a custody, support, and property settlement agreement. The joint custody arrangement provided that Shanon would reside 50 percent of the time with each parent. The parties also agreed that Timothy would pay child support in the amount of $400 per month from June 1985 through June 1989; $425 per month from July 1989 through June 1993; and $475 per month from July 1993 until Shanon reached the age of 18. In addition, Timothy was to maintain major medical and hospital insurance for Shanon's benefit and agreed to pay for all dental, medical, and hospital bills not covered by insurance. Timothy was obligated to maintain life insurance for Shanon's benefit in the amount of $75,000, and the parties agreed to share the costs of Shanon's extracurricular activities.

From the marital property, Timothy received the family home valued at $250,000, along with the obligation for its mortgage. Janet received jewelry, furniture from the home, and $55,000 in cash. Additionally, Janet received $1,000 from Timothy to pay her attorney fees. She received no award of maintenance.

On May 27, 1992, Janet filed a motion to modify Timothy's child support obligation. She alleged that, from the time of the dissolution, her financial ability to provide for her daughter's needs had decreased, while Timothy's financial situation had greatly improved through the success of his construction company, Barnard Construction. After two days of testimony, the District Court issued its findings of fact, conclusions of law, and memorandum and order on May 21, 1993, and denied Janet's motion for modification of child support and request for attorney's fees.

STANDARD OF REVIEW

The standard of review for findings of fact in child support modification cases is whether the district court abused its discretion. In re Marriage of Durbin (1992), 251 Mont. 51, 55, 823 P.2d 243, 245. We review conclusions of law to determine whether the district court's interpretation of the law was correct. In Re Marriage of Burris (1993), 258 Mont. 265, 269, 852 P.2d 616, 619. When a district court engages in conscionability determinations, the result is neither a pure finding of fact nor a pure legal conclusion. The determination is a discretionary action, and as such, is presumed to be correct and will not be overturned by this Court absent an abuse of discretion. See In re Marriage of Hamilton (1992), 254 Mont. 31, 36, 835 P.2d 702, 704-05.

ISSUE 1

Did the District Court abuse its discretion when it concluded that the original award of child support was not unconscionable?

To justify modification of the original child support award, Janet had the burden of showing changed circumstances so substantial and continuing that the terms of the original decree are now unconscionable. Section 40-4-208(2)(b), MCA.

The District Court found that "[Timothy's] income has increased substantially since his divorce from [Janet]." Janet argued that her own financial circumstances had considerably worsened. Although her financial affidavit and guideline worksheets reflect no income, Janet offered exhibits which showed that between 1985 and 1991, her monthly expenses averaged $2,600. She admitted at trial that despite having reported losses, she was able to withdraw money for her living from her tanning salon business. Thus, the District Court found that Janet had an after-tax, disposable income of $2,400 per month ($28,800 per year), which did not include amounts received for child support. Although Janet protests that the court improperly imputed this income to her, we conclude that reasonable inferences from the evidence presented support the District Court's finding regarding Janet's income.

It is obvious that Timothy's financial success constitutes a change in circumstances. However, this fact, by itself, does not render the prior child support award unconscionable. In Green v. Green (1978), 176 Mont. 532, 579 P.2d 1235, we declined to define the word "unconscionable" for purposes of modifying child support and declared that "[w]e will follow the policy of determining on a case to case basis, from the underlying facts, whether the evidence is sufficient to be unconscionable." Green, 579 P.2d at 1238-39.

The Court heard extensive testimony with regard to the underlying facts in this case. Janet testified that if awarded an increase in child support, she would provide more clothes and a more comfortable home for Shanon, purchase a different vehicle, and obtain medical insurance for herself. She complained of a disparity between the home she was able to provide Shanon and Timothy's home.

The District Court found that, although there is a significant difference between the sizes of Timothy's and Janet's homes, the apartment Shanon shares with her mother is a "comfortable and adequate household for two people." It further found that the current amount Timothy pays Janet for child support is comparable to the amount he himself spends on Shanon while she is in his custody, and that the total amount ($818 plus housing and transportation) approximates the standard of living Shanon would have enjoyed had the marriage not been dissolved.

Our review of the record reveals that there is no dispute that Shanon is a psychologically healthy child. There is no dispute that all of Shanon's current needs are being met under the current child support arrangement, regardless of whether she is at her mother's home or her father's home. On cross-examination, Janet acknowledged that Shanon did not need clothes; that her school needs were met; that she engaged in extracurricular activities; and that she had toys, musical equipment, television, and books. Janet could identify no physical, emotional, or material need which Shanon was going without.

We conclude that ...