NO. 94-360

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

IN RE THE MARRIAGE OF

PAULETTE M. BRANDON,

ROBERT A. BRANDON.

APPEAL FROM: District Court of the Twelfth Judicial District,

In and for the County of Hill,

The Honorable Peter L. Rapkoch, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Daniel A. Boucher, Altman & Boucher, Havre, Montana

For Respondent:

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

Montana

Filed:

Submitted on Briefs: February 23, 1995

Decided: May 9, 1995

:.
Justice Fred J. Weber delivered the Opinion of the Court.

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

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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.

1.

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.

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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. 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), 52 St.Rep. 280.

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

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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

beins 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

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guidelines in a particular case onlv if the decree,

separation order or support order contains a specific

written findinq showinq justification that application of

the quidelines 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 quidelines 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 aqreement meets

the followins criteria:

(a) it is in writin executed b the arties; (b) the

parties have siqned the stipulation or aqreement free of

coercion; (c) it contains specific iustification as to

why application of the quidelines is uniust or

inappropriate; (d) it contains a statement of the amount

of support that would have been appropriate under the

guidelines without the variance.

i7j .A support order granting a variance shall provide

that upon termination of the circumstances which justify

the variance, the support amount shall immediately be the

amount which would have been ordered under the guidelines

without the variance. (Emphasis added.)

46.30.1507, ARM. The court did not consider the majority of the

above criteria. The court also did not provide us with a total for

support that Paulette should pay according to the Guidelines, had

the court not deviated:

MINIMUM SUPPORT OBLIGATION (1) Except for parents with

extremelv low net income, a specific minimum contribution

towards child support should be ordered in all cases even

though a parent does not have sufficient net income to

meet their own self support reserve needs. (Emphasis

added.)

46.30.1538, ARM.

On remand the court must focus on the above rules from the

Guidelines. Further, the court must follow the Guidelines unless

it specifically sets out the "clear and convincing" proof it is

using to deviate from the Guidelines. Even if the court decides on

remand that Paulette need not pay support, according to the

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Guidelines, it must at least make a determination of what the

support would have been if the court had followed the Guidelines.

Likewise, the court must make the same determination in terms of

support from Robert for those times in which Kelly lives with his

mother

We conclude that the District Court made a legal err when it

deviated from the Uniform Child Support Guidelines and, therefore,

we must remand this case for a further determination of child

support due from each parent based upon the Guidelines. If the

court on remand chooses to deviate from the Guidelines, it must do

so with specificity and by presenting "clear and convincing"

evidence for such deviation.

II.

Did the District Court abuse its discretion by denying the

husband's Motion to Terminate Maintenance?

Robert argues that he should not have to pay support to

Paulette because she is now employed full time. Paulette argues

that though she is employed full time she does not make enough

money to sustain herself.

The District Court determined that although Paulette did work

full time, her financial condition was not sound. The District

Court stated in Finding #15:

The Court further finds that the Respondent should

continue to pay maintenance to Petitioner in the amount

of $300.00 per month because there has not been a showing

of changed circumstances so substantial and continuing as

to make the terms concerning maintenance unconscionable.

The evidence is to the contrary. Respondent's standard

of living is improving while Petitioner's is

deteriorating.

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Also, the court's Conclusion #3 states:

The Court concludes that the maintenance order set forth

in the Decree should continue in effect due to the

inability of the Petitioner to meet her adequate needs

under the circumstances independently; the standard of

living established during the marriage, the duration of

the marriage, her age and physical condition, and the

ability of the Respondent from whom maintenance is sought

to meet his needs while meeting those of the Petitioner.

There has not been a showing of changed circumstances so

substantial and continuing as to make the terms

unconscionable, as required by § 40-4-208, MCA.

The court then ordered:

The Court having found and concluded that there has not

been a showing of changed circumstances so substantial

and continuing as to make the terms of the Decree's

maintenance provision unconscionable, it is hereby

ordered that Respondent shall continue paying maintenance

to the Petitioner in accordance with the Decree.

Respondent is ordered to make up any past child support

payments not paid.

The burden is on Robert to show that circumstances have

changed so substantially from the time of the original decree that

the terms of the original agreement are "unconscionable." Section

40-4-208, MCA. Robert's entire argument rests on the fact that

Paulette is now employed full time and can afford to care for

herself

The record indicates that this was a marriage that lasted 22

years. The record also shows that Paulette was instrumental in

helping to sustain the carpet and drape business from which Robert

now derives an average income over the years of $45,000 per year,

and more for the last three years. It is true that instead of $480

per month Paulette now brings home over $900 per month plus up to

$9,000 per year from interest and reimbursement for her travel

expenses. However, this still does not begin to approach the

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standard of living that she had when she was married to Robert, nor

that Robert has currently. Nothing that Robert presented to the

court shows that the $300 per month amount of maintenance

originally set by the court is in any way unconscionable.

We conclude that Robert has failed to meet his burden to prove

that the $300 per month that he provides Paulette is

unconscionable.

We hold that the court did not abuse its discretion in failing

to grant the husband's request to terminate maintenance.

This case is affirmed in part and reversed in part and

remanded for proceedings to determine Kelly's proper child support

from both parents.

We Concur: