NO. 50-386 INTHE 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 161981

Filed: 

## JM

## 16

## 1988Mr. 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 supportpayments 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 fivemonths 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 eachparty 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 erredin 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 thatpetition 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 courtbased 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 determinationof 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 incomewas therefore freed to support his childrenby a previous marriage. But section 40-6-217, MCA, states that "[A] married person is not bound to support his spouse's childrenby a former marriage 

# .

# . ."and section 40-2-208, MCA, provides that "theproperty of a married person is not liable for the debts of the person's spouse contracted before themarriage." 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 childrenby 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 a14percent increase in Social Security disability benefits, and that such benefits were sure to increase in the future. The trial court cannotbase child supportupon 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 financialneeds and resources of the mother and father. The law requires this evidence to be before the trial court. See, Olson v. Olson (1978), 175Mont. 444, 574 P.2d 1004, 35 

## $1 St.Rep. 175. Section 40-4-20 (b),MCA, states that unless the parties agree inwriting 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 supportpayments 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 itwas--$200. We have repeatedly held that written findings are required to establishboth 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 feesmust be vacated.On the question of modification of visitation, we affirm the trialcourt, but also hold that inlightof our remand, the trialcourt can then determine whether or not it wants toreconsider thispart of its order. Before the hearing, the fatherwas entitled tovisitation on atleast 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 tothe father's home and back tothe mother's home on the same day, in order tomeet the Saturday visitation schedule. The father testified that Saturday visitation involved atleast three and a half to four hours traveling time on a normal day, and up to sixhours inthewinter. He admitted that Saturday visitation is "not only expensive but it'shard on the kids and hard on everyone concerned." The trialcourt 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 fatherwould have us grant him custody of the children by default; that is, because the mother failed to fileher response within the time provided by the rules. We have consistently held, however, that any doubt in the latefilingof an answer should be resolved by trialon the merits (Cure v. Southwick (1960), 137Mont. 1, 349 P.2d 575; Brothers v. Brothers (1924),71Mont. 378, 230 P. 60), and custody cases present a compelling reason for a hearing

on themerits. Further, the father is not without procedural faulthere. After he filedhispetition for custody, at least sixmonths elapsed before the hearing, and during the interim, he could have rnoved the court tocompel the mother to filean answer or tohave her held incontempt of court if she failed todo so. The father did nothing.Wedo not see error in the trialcourt granting an ex parte request of the mother tohave additional timeto file her proposed findings and conclusions. Rule 6(b)(1) 

### , M.R.Civ.P. gives this right tothe court, and the fatherhas not shown that the extensionwas given afterthe expiration of the timedue for submission of the proposed findings and conclusions. Further, the fatherhas failed to show how his substantialrightswereprejudiced by the court's granting thisextension. The order isvacated and this cause is remanded tothe DistrictCourt for furtherproceedings consistentwith this opinion.

We concur:

AChief Justice \