NO. 50-386 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

RONALD F. DUFFEY, 

Plaintiff and Appellant, 

-vsHARRIET DUFFEY, 

Defendant and Respondent. 

Appeal from: District Court of the Fifth Judicial District, 

In and for the County of Jefferson. 

The Honorable Frank E. Blair, Judge presiding. 

Counsel of Record: 

For Appellant: 

Hull and Sherlock, Helena, blontana 

For Respondent: 

R. Thomas Garrison, Virginia City, Montana 

Submitted on Briefs: March 4, 1981 

Decided : -&L 16 1981 

Filed: JM 16 1988 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

Ronald Duffey (the father) appeals from the judgment of 

the Jefferson County District Court denying his petition for 

modification of custody and granting the counterclaim of his 

ex-wife, Harriet Duffey (the mother) for increased child 

support, attorney's fees, and modification of the visitation 

rights. 

The father claims that the trial court erred in increasing 

the amount of child support payments because it relied on 

the income of his present wife in increasing the award, and 

because the trial court speculated that the father's Social 

Security benefits would be increased in the future (the 

father is disabled and receives disability benefits including 

benefits for his children). He also claims that the trial 

court erred in granting the wife's attorney's fees and to 

reimburse the wife for her court costs. The father also 

claims that the court erred by modifying the visitation 

order to let him take the children one weekend a month 

rather than at least two Saturdays each month. 

After the father had filed his petition to modify 

custody, at least five months went by before the matter was 

set for hearing. The mother did not file her response and 

counterclaim until the day of the hearing, in fact, she did 

so while the hearing was taking place. At the conclusion of 

the hearing, the court gave each party 15 days to submit 

proposed findings and conclusions. The father submitted his 

on time, but the mother obtained an ex parte extension from 

the court and filed hers at a later time. The father claims 

that the court should have granted his motion to strike the 

mother's response and counterclaim, and that the court erred 
in giving her an extension to file her proposed findings and 

conclusions. 

The parties were divorced in 1972 and both have remarried. 

They have previously litigated questions of child custody 

and child support. The father filed his last petition in 

November 1979, to obtain custody of the three children, and 

that petition was heard in May. At no time during the 

time the petition was filed and the hearing did the father 

take any action to compel the mother to file her response. 

We must remand this cause for another hearing because 

it is clear that the trial court based its order for increased 

child support on improper considerations. First, in a 

memorandum accompanying the findings and conclusions, the 

trial court clearly implies that it considered the income of 

the father's present wife in its determination of the father's 

ability to pay increased child support. The implication is 

that since the wife was bound to support her disabled husband, 

that more of his income was therefore freed to support his 

children by a previous marriage. But section 40-6-217, MCA, 

states that "[A] married person is not bound to support his 

spouse's children by a former marriage . . ." and section 

40-2-208, MCA, provides that "the property of a married 

person is not liable for the debts of the person's spouse 

contracted before the marriage." The clear effect of the 

court order is to make the father's present spouse's property 

or income indirectly available to pay child support for her 

husband's children by a previous marriage. Under these 

statutes, this cannot be done. 

Second, the court premised the husband's ability to pay 

increased child support on the fact that he had his present 

wife deposit $1,200 in a Keogh Retirement Plan over a two 

year period, and that as of July 1, 1980, there had been a 
14 percent increase in Social Security disability benefits, 

and that such benefits were sure to increase in the future. 

The trial court cannot base child support upon speculative 

conditions. Gall v. Gall (1980), - Mont . - , 608 P.2d 

496, 37 St.Rep. 639. 

Third, there is no evidence in the record concerning 

the children's financial needs, and resources, nor the 

financial needs and resources of the mother and father. The 

law requires this evidence to be before the trial court. 

See, Olson v. Olson (1978), 175 Mont. 444, 574 P.2d 1004, 35 

$1 St.Rep. 175. Section 40-4-20 (b), MCA, states that unless 

the parties agree in writing to a new arrangement for child 

support, child support can only be modified upon a showing 

so substantial and continuous as to make the original child 

support payments unconscionable. See, Firman v. Firman 

(19801, - Mont . - , 610 P.2d 178, 37 St.Rep. 888, 890. 

The record contains no such showing and the trial court made 

no such finding. 

We cannot affirm the trial court's award of attorney 

fees, small as it was--$200. We have repeatedly held that 

written findings are required to establish both the need and 

reasonableness of an award of attorney's fees. See, e.g., 

In Re Marriage of Gohner (1980) , - Mont. - , 609 P.2d 

288, 37 St.Rep. 613, 615; Knudson v. Knudson (1980), 

Mont . , 606 P.2d 130, 37 St.Rep. 147; In Re Marriage of 

Aanenson (1979), - Mont. - , 598 P.2d 1120, 36 St.Rep. 

1525, 1529; Downs v. Downs (1979) - Mont . - , 592 P. 2d 

938, 940, 36 St.Rep. 577, 581. These cases are based on 

section 40-4-110, MCA. The trial court failed to make 

either of these essential findings, and for that reason 

alone the award of attorney fees must be vacated. 
On the question of modification of visitation, we 

affirm the trial court, but also hold that in light of our 

remand, the trial court can then determine whether or not it 

wants to reconsider this part of its order. Before the 

hearing, the father was entitled to visitation on at least 

two Saturdays per month. He and the mother live a long 

distance apart. The father, mother, and children, testified 

that it was exceedingly hard having to travel to the father's 

home and back to the mother's home on the same day, in 

order to meet the Saturday visitation schedule. The father 

testified that Saturday visitation involved at least three 

and a half to four hours traveling time on a normal day, and 

up to six hours in the winter. He admitted that Saturday 

visitation is "not only expensive but it's hard on the kids 

and hard on everyone concerned." The trial court simply 

modified the visitation (see, section 40-4-217(3), MCA) so 

that it would serve the best interest of the children. 

We briefly discuss the procedural questions raised. In 

effect, the father would have us grant him custody of the 

children by default; that is, because the mother failed to 

file her response within the time provided by the rules. 

We have consistently held, however, that any doubt in the 

late filing of an answer should be resolved by trial on the 

merits (Cure v. Southwick (1960), 137 Mont. 1, 349 P.2d 575; 

Brothers v. Brothers (1924), 71 Mont. 378, 230 P. 60), 

and custody cases present a compelling reason for a hearing 

on the merits. Further, the father is not without procedural 

fault here. After he filed his petition for custody, at 

least six months elapsed before the hearing, and during the 

interim, he could have rnoved the court to compel the mother 

to file an answer or to have her held in contempt of court 

if she failed to do so. The father did nothing. 
We do not see error in the trial court granting an ex 

parte request of the mother to have additional time to file 

her proposed findings and conclusions. Rule 6 (b) (1) , 

M.R.Civ.P. gives this right to the court, and the father has 

not shown that the extension was given after the expiration 

of the time due for submission of the proposed findings and 

conclusions. Further, the father has failed to show how his 

substantial rights were prejudiced by the court's granting 

this extension. 

The order is vacated and this cause is remanded to the 

District Court for further proceedings consistent with this 

opinion. 

We concur: 

A Chief Justice \