Marriage of Brown, In re, 96-536

• Decision Date: 24 June 1997
• Docket Number: No. 96-536,96-536
• Citation: 283 Mont. 269,940 P.2d 122
• Parties: In re the Marriage of Rita Ann BROWN, Petitioner and Appellant, and Torger Spencer Oaas, Respondent and Respondent.
• Court: Montana Supreme Court

Page 122

940 P.2d 122

283 Mont. 269

In re the Marriage of Rita Ann BROWN, Petitioner and Appellant and Torger Spencer Oaas, Respondent and Respondent.

No. 96-536.

Supreme Court of Montana.

Submitted on Briefs March 20, 1997.

Decided June 24, 1997.

Mariah Eastman, Lewistown, for Appellant.

Torger S. Oaas, Lewistown, for Respondent.

GRAY, Justice.

Rita Ann Brown (Brown) appeals from the order of the Tenth Judicial District Court, Fergus County, reducing her maintenance. We affirm.

The sole issue on appeal is whether the District Court abused its discretion in reducing Brown's maintenance.

Brown and Torger Spencer Oaas (Oaas) were married in Lewistown, Montana, in 1980. They had two children during their marriage.

Brown petitioned for dissolution of the marriage in October of 1992. The parties agreed on the disposition of the marital estate; Brown received the family home, subject to any remaining indebtedness thereon, and a 1986 van and Oaas received his law practice, subject to existing indebtedness. They also agreed to joint custody of their two children, with Brown as the primary residential custodian. Oaas agreed to pay $850 per month in child support, or $425 per minor child. The parties were unable to reach an agreement regarding maintenance.

During the dissolution hearing on December 9, 1993, the parties informed the District Court of the substance of their dissolution agreement and read it into the record in its entirety. The court indicated that it would adopt the agreement and make findings and conclusions to that effect. The parties also indicated that the maintenance issue remained unresolved, and the court heard testimony and admitted other evidence on that issue. After the hearing, the parties reduced their dissolution agreement to writing and properly executed it.

The District Court subsequently entered findings of fact and conclusions of law adopting the parties' dissolution agreement and resolving the maintenance issue. Regarding maintenance, the court found that Brown was employable, but that her employment opportunities in Fergus County were limited; that Brown received little income-producing property, had substantial debt and would require a substantial monthly income to maintain the family residence; and that, at the time of the dissolution, Brown did not have the ability to support herself and would require maintenance for a period of time. Based on those findings, the District Court concluded that Brown was entitled to maintenance and ordered Oaas to pay her maintenance in the amount of $600 per month plus additional $1,000 payments on April 1st and September 1st of each year, for a total of $9,200 each year. The court also determined, based on the evidence presented, that "both parties will have to adjust their expectations and life styles to accommodate the realities of their situations." A decree dissolving the parties' marriage was entered on February 24, 1994, and neither party appealed.

In February of 1996, Oaas moved the District Court to reduce or terminate maintenance, contending that there had been a change in circumstances so substantial as to warrant modifying the maintenance award. After a hearing on the motion, the District Court entered findings of fact and conclusions of law determining that a substantial and continuing change in circumstances had occurred and that modification of Brown's maintenance was warranted under § 40-4-208(2)(b)(i), MCA. The court reduced Brown's maintenance award from $600 to $300 a month, but left intact the additional $1,000 maintenance payments due on April 1st and September 1st of each year. The court's modified maintenance award to Brown totals $5,600 per year, a reduction of $3,600 from the original award. Brown appeals.

Did the District Court abuse its discretion in reducing Brown's maintenance?

Section 40-4-208(2)(b)(i), MCA, provides that a decree containing provisions relating to maintenance may be modified only "upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable." Section 40-4-208(2)(b)(i), MCA, does not define the term unconscionable and we have declined to do so; rather, the interpretation of unconscionability must be made via case-by-case scrutiny of the underlying facts. In re Marriage of Hagemo (1988), 230 Mont. 255, 259, 749 P.2d 1079, 1082 (citation omitted).

Here, the District Court held a hearing and made numerous findings regarding each party's financial status, and the changes in Brown's financial status since the dissolution of the parties' marriage. Based on those findings, the court determined that there had been a substantial and continuing change in circumstances which rendered its prior maintenance award unconscionable and reduced the award accordingly. Brown argues that the District Court erred in doing so.

We generally review a district court's findings of fact under the clearly erroneous test. Rule 52(a), M.R.Civ.P.; Burris v. Burris (1993), 258 Mont. 265, 269, 852 P.2d 616, 619. A court's findings are clearly erroneous if they are not supported by substantial credible evidence, the court has misapprehended the effect of the evidence, or our review of the record convinces us that a mistake has been committed. Burris, 852 P.2d at 619.

We recently have clarified, however, that a district court's determinations regarding "changed circumstances" and "unconscionability" under § 40-4-208(2)(b)(i), MCA, are discretionary rulings. In re Marriage of Clyatt (1994), 267 Mont. 119, 122-23, 882 P.2d 503, 505; In re Marriage of Barnard (1994), 264 Mont. 103, 106, 870 P.2d 91, 93. While Marriage of Clyatt and Marriage of Barnard involved modifications of child support rather than of maintenance, § 40-4-208(2)(b)(i), MCA, governs both types of modification. Therefore, while we will continue to apply the clearly erroneous standard in reviewing actual findings of fact in maintenance modification cases, we will review a district court's "changed circumstances" and " unconscionability " determinations under § 40-4-208(2)(b)(i), MCA, under the abuse of discretion standard.

Brown contends that the District Court's finding that "[t]he present level of maintenance is unnecessary to maintain [Brown] and the children" is not supported by substantial credible evidence and is clearly erroneous. This finding was based, in turn, on underlying findings regarding Brown's employment, her ability to continue her employment, her acquisition of investment property and personal property, and her cohabitation with, and supporting of, Robert Britzius (Britzius). Therefore, before addressing whether the District Court's ultimate finding regarding the necessity of the original level of maintenance is clearly erroneous, we will first determine whether substantial credible evidence supports the court's underlying findings.

Brown testified that she began working at the Yogo Inn in July of 1994, but the position ended in January of 1995. Since June 1, 1995, she had been employed at the Western Lounge. Brown testified that she worked approximately thirty-two hours per week, earned $6.50 per hour plus tips, and could work full-time if she chose to do so. She stated at one point that she earns approximately $600 per month and, later, that she earns approximately $744 per month. In any event, the record is clear that Brown earns at least $600 per month from her employment at the Western Lounge.

Brown also testified regarding her acquisition of investment property. After the dissolution, she remortgaged the family home--which was almost entirely paid off--and purchased a four-bedroom home on twelve acres of land as an investment. She acquired the investment property in September of 1994, after she began...