Marriage of Gingerich, In re

• Decision Date: 20 December 1994
• Docket Number: No. 93-647,93-647
• Citation: 269 Mont. 161,887 P.2d 714
• Parties: In re the MARRIAGE OF Diane Stroop GINGERICH, Petitioner and Respondent, and Hugh D. Stroop, Respondent and Appellant.
• Court: Montana Supreme Court

Page 714

887 P.2d 714

269 Mont. 161

In re the MARRIAGE OF Diane Stroop GINGERICH, Petitioner and Respondent and Hugh D. Stroop, Respondent and Appellant.

No. 93-647.

Supreme Court of Montana.

Submitted on Briefs Dec. 1, 1994.

Decided Dec. 20, 1994.

Tonja D. Schaff, Richard Dzivi, P.C., Great Falls, for appellant.

Daniel L. Falcon, Matteucci, Falcon Squires & Lester, Great Falls, for respondent.

HARRISON, Justice.

Hugh D. Stroop (Husband) appeals the September 24, 1993 order of the District Court of the Eighth Judicial District, Cascade County, modifying his and Diane Stroop Gingerich's (Wife) 1982 decree of dissolution. We affirm in part, reverse in part, and remand for further consideration consistent with this opinion.

Six issues are presented:

1. Did the District Court err in modifying the 1982 Decree of Dissolution based on its conclusion that there were changes in circumstance so substantial and continuing as to render the Decree unconscionable?

2. Did the District Court err in adopting verbatim Wife's findings of fact, conclusions of law, and order modifying decree?

3. Did the District Court err in increasing the length of time Husband must pay child support?

4. Did the District Court err in computing the proper child support that Husband is required to pay?

5. Did the District Court err in awarding interest on back due child support?

6. Did the District Court err in awarding Wife attorney's fees?

A decree dissolving the marriage of Husband and Wife was entered on May 20, 1982 with issues pertaining to custody, property, and child support to be decided and entered later. The parties entered into a custody, support and property settlement agreement (Agreement) dated November 4, 1982, which provided that child support payments were to be made the first of each month to the Clerk of the District Court. The Agreement was approved of and incorporated by reference in a decree of dissolution (1982 Decree) entered on November 29, 1982.

The 1982 Decree provided Husband and Wife with joint legal custody, with Wife to have physical custody of the couple's three children. Husband was given visitation rights, and was ordered to pay $133.33 per child per month in child support (totaling $400 per month) until each child reached majority or was earlier emancipated.

Since Husband's employment as a heavy equipment operator was seasonal in nature, he agreed to set aside funds when he was working to enable him to continue to meet his child support obligation when he was not working. By the end of 1989, however, Husband owed over $6,000 in past-due child support payments. Husband alleges he did not dispute or attempt to avoid his child support payment obligation, but claims he was not able to pay because of his lack of employment. Husband has since met all his delinquent child support obligations.

Dawn Cherie graduated from high school in May 1990, and immediately moved away from Wife's home, resulting in her emancipation. Stacia Noel reached majority on January 3, 1993, approximately five months before she graduated from high school. Husband stopped paying child support for her in January 1993. Jamie Katherine reached majority on November 1, 1994, approximately seven months before she graduates from high school.

Wife brought an action against Husband seeking to modify the 1982 Decree. She sought to increase the length of time and amount of child support payments, payment of and interest on past-due payments, and for attorney's fees. After two hearings on the matter, the District Court adopted verbatim Wife's findings of fact and conclusions of law. Husband moved the District Court to alter or amend the adopted findings on the grounds that the findings were clearly erroneous. The District Court did not act on Husband's motion and Husband, concluding that the motion was denied pursuant to Rule 59(g), M.R.Civ.P., appeals to this Court.

I

Did the District Court err in modifying the 1982 Decree of Dissolution based on its conclusion that there were changes in circumstances so substantial and continuing as to render the Decree unconscionable?

In Gall v. Gall (1980), 187 Mont. 17, 20, 608 P.2d 496, 498, this Court concluded that the essential requirement for modifying child support is that it would be unconscionable to continue the current child support payments. Wife claims that the record shows a change of circumstances so substantial and continuing as to render the 1982 Decree unconscionable. We disagree.

In support of the District Court's order, Wife cites In re Marriage of Johnson (1983), 205 Mont. 259, 667 P.2d 438, for the contention that this Court will reverse the district court only if that court's findings are clearly erroneous in light of the evidence in the record. In Marriage of Johnson, the wife, who sought child support modification, testified about her changed income and that inflation had increased the cost of living, compared her monthly expenses to her monthly income, and testified that expenses for raising their son had increased. Marriage of Johnson, 667 P.2d at 439. Additionally, the husband had received annual cost of living increases in his employment. Marriage of Johnson, 667 P.2d at 439. The husband testified about his changing income and compared his income to his expenses. That District Court "relied upon the increased age and needs of the parties' son and the effect that inflation had upon [the] wife's ability to buy food, clothing, and other items necessary for raising the child." Marriage of Johnson, 667 P.2d at 440. We concluded that those factors had properly been relied on to uphold an increase in child support. Furthermore, the District Court considered that the wife's expenses exceeded her income. Marriage of Johnson, 667 P.2d at 440.

Marriage of Johnson is distinguishable from the instant case because, here, Wife did not present specific evidence about changed economic circumstances or her actual increased need. Wife testified that the cost of raising the three children had increased but she presented no substantive evidence to prove this point or demonstrate the degree of increase. Wife presented only general testimony regarding her increased cost claims. To demonstrate that she adduced sufficient evidence at trial to support the District Court's findings, Wife relies on the District Court's order modifying the decree. We fail to find adequate support in the record for the District Court's findings for this issue. Wife did not present sufficient evidence of a change in circumstances. Wife testified that there was a change but did not demonstrate the nature or extent of that change. Unlike the court in Marriage of Johnson, the record does not "demonstrate that the changed circumstances of the parties are so substantial and continuing as to make the terms of the original decree unconscionable." Marriage of Johnson, 667 P.2d at 440.

Wife's counsel further elicited at the hearing that Wife's proposed child support modifications, which the District Court adopted verbatim, were based on the parties' incomes. These calculations therefore gave no indication of the increase in their cost of living. The record does not contain sufficient substantive evidence of an increase or even a degree of increase of cost of living. Wife therefore failed to establish an evidentiary basis demonstrating that it would be unconscionable to continue the child support payments established by the 1982 Decree. The change in the parties' incomes in this case is not a sufficient basis to warrant modification of the Decree.

We conclude that Wife did not meet her burden of proof that rising costs or other factors were a sufficient change of circumstances to justify modification of child support under § 40-4-208, MCA. Wife's evidence is not sufficient to support a conclusion that there was a change in circumstances so substantial as to render the 1982 Decree unconscionable. Wife heavily relies on the standard of review we apply to decree modification cases, citing In re Marriage of Barnard (1994), 264 Mont. 103, 870 P.2d 91. In Marriage of Barnard, we confirmed the importance of district court discretion and that we would not overturn a district court absent an abuse of discretion. Marriage of Barnard, 870 P.2d at 93. In this case the record clearly demonstrates that the District Court abused its discretion by concluding that evidence presented supported the unconscionability of the 1982 Decree. The record does not support the District Court's conclusion.

Our holding for this issue makes it unnecessary to address issue two.

III

Did the District Court err in increasing the length of time Husband must pay child support?

It is well established that "unless the parties agree in writing or the dissolution decree expressly provides for termination of child support at a specified age or time, a parent is not obligated to support an 18 year old or otherwise emancipated child." Torma v. Torma (1982), 198 Mont. 161, 164, 645 P.2d 395, 397; citing Chrestenson v. Chrestenson (1979), 180 Mont. 96, 99, 589 P.2d 148, 149-50. The 1991 Legislature modified § 40-4-208(5), MCA, but did not alter the substantive provision that parties may establish a specific termination date. The statute provides that a termination date may be "extended or knowingly waived by written agreement or by an express provision of the decree." Section 40-4-208(5), MCA. In the instant case, the 1982 Decree provided that child support payments would continue for the child until said child attained the age of eighteen years or was earlier emancipated. The District Court modified the 1982 Decree extending Husband's child support payments during the period Jamie is not emancipated, is enrolled in high school, and is not yet 19 years old. The District Court also extended child support payments for Stacia to include the months between her attaining majority and graduating from high school.

Section 40-4-208(5), MCA, case law, and the...