NO. 93-647 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

IN RE THE MARRIAGE OF 

DIANE STROOP GINGERICH, 

Petitioner and Respondent, 

and 

HUGH D . STROOP, 

Respondent and Appellant 

APPEAL FROM: District Court of the ~ighth Judicial District, 

In and for the County of Cascade, 

The Honorable Joel G. Roth, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Tonja D. Schaff, Attorney at Law; Richard Dzivi, 

P. C. , Great Falls, Montana 

For Respondent: 

Daniel L. Falcon, Attorney at Law; Matteucci, Falcon 

Squires & Lester, Great Falls, Montana 

Submitted on Briefs: December 1, 1994 

Decided: December 20, 1994 

Filed: 
Justice John Conway Harrison delivered the Opinion of the Court. 

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 Marriaqe 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. Marriase of 

Johnson, 667 P.2d at 439. Additionally, the husband had received 

annual cost of living increases in his employment. Marriaqe 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." 

Marriase 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. Marriase of Johnson, 667 P.2d 

at 440. 

Marriase 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 ~istrict 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 Marriaqe 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. " Marriase 

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 (Mont. l994), 870 P.2d 91, 51 

St.Rep. 173. In Marriaqe of Barnard, we confirmed the importance 

of district court discretion and that we would not overturn a 

district court absent an abuse of discretion. Marriaae 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. 

I11 

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 parties' express 

agreement all support the conclusion that Husband must pay child 

support only until said child reaches age eighteen or is earlier 

emancipated. The District Court abused its discretion by modifying 

the 1982 Decree. There may be situations where the time for child 

support payments should be extended, however the facts of this case 

do not sustain that conclusion. Because of our holding in this 

issue, we need not consider issue four. 

v 

Did the District Court err in awarding interest on back due 

child support? 

Husband was delinquent in his child support payments between 

1986 and 1993; at one point he was over $6,000 in arrears. The 

District Court ordered that Husband pay interest on past due child 
support, based on Wife's calculations. Husband argues that he was 

unable to earn sufficient income to pay his full child support, 

that he did not attempt to reduce the amount of his child support 

payments, that Wife knew his work was seasonal, and that he made a 

good faith effort to pay the arrearage before court intervention. 

Husband concludes that it would be inequitable to award interest to 

Wife. We disagree. 

We have consistently held that, absent contrary provisions in 

a dissolution decree, interest on child support arrearage is 

automatically collectable by judgment creditor spouse. In re 

Marriage of Callahan (1988), 233 Mont. 465, 471-72, 762 P.2d 205, 

209; In re Marriage of Gibson (1983), 206 Mont. 460, 466, 671 P.2d 

629, 632; Torma, 645 P.2d at 398; Fitzgerald v. Fitzgerald (19801, 

190 Mont. 66, 71, 618 P.2d 867, 870. 

Here, both the Agreement and 1982 Decree were silent on the 

issue of interest owing. Applying established law to the instant 

case, we hold that Husband owes interest to Wife for late child 

support payments. The amount of interest due is, however, not 

clear from the record. Wife's proposed calculations appear to be 

in error because they were based on the date the Clerk of Court 

mailed payment to Wife rather than the date Husband made payment to 

the Clerk of Court. Furthermore, additional calculations were 

addressed at the hearings by both parties but were not entered into 

evidence. Our award of interest payments is for late payments 

based on the Agreement and 1982 Decree only and not for any 

modified payments, the award of which we rejected above. 
Therefore, consistent with this opinion, the District Court is 

instructed to recalculate the interest payments. 

This holding does not mean that interest payments are 

available in every situation where child support payments are late. 

While interest payments are automatically collectable, the district 

court must have some latitude to calculate and award payments. 

While we intend that child support payments should be timely, and 

interest charged when payments become late, we do not intend that 

this should be an avenue for frivolous or vindictive claims. 

VI 

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

Section 40-4-110, MCA, provides that after considering the 

financial resources of both parties the district court may order a 

party to pay reasonable attorney's fees for maintaining and 

defending specified dissolution, custody, and child support 

proceedings. The standard of review of an order granting or 

denying attorney's fees is whether the district court abused its 

discretion. Marriase of Barnard, 870 P.2d at 95. We will not 

disturb a district court's findings if there is substantial 

evidence supporting those findings. Marriase of Barnard, 870 P.2d 

at 95. We have held that such an award "must be based on 

necessity, must be reasonable, and must be based on competent 

evidence." In re Marriage of Zander (1993), 262 Mont. 215, 227, 

864 P.2d 1225, 1233; citing Marriaqe of Barnard, 870 P.2d at 95. 

The party requesting attorney's fees has the burden of 

demonstrating the necessity of the award. In re Marriage of Durbin 
(1992), 251 Mont. 51, 62, 823 P.2d 243, 250. 

Wife failed to show that attorney's fees are necessary or that 

the proposed fees are reasonable. Both parties expounded on the 

burden created by the other party's litigation but neither 

suggested the necessity or reasonableness of awarding fees. The 

record does not contain substantial evidence to support the 

District Court's findings. The record from this case does not 

support an award of attorney's fees. Thus, the District Court 

abused its discretion by awarding attorney's fees. 

The judgment of the District Court is affirmed in part, 

reversed in part, and remanded in accordance with this opinion. 

Justices 
Justice James C. Nelson dissenting. 

I respectfully dissent from our decision on Issue 111. 

As to the court's extending the Husband's child support 

obligation, § 40-4-208(5), MCA (1981), the code in effect when the 

parties executed their November 4, 1982 Custody, Support and 

Property Settlement Agreement and when the court entered its 

November 29, 1982 Decree of Dissolution, provided for the automatic 

termination of child support at emancipation. That same section of 

the code in effect when the Wife filed her petition for 

modification, provides for child support during the time that an 18 

year old child remains in high school. Section 40-4-208 (5) , MCA 

(1991) . In my view, reconciling our decisions in In re Marriage of 

McFate (1989), 239 Mont. 492, 781 P.2d 759; and In re Marriage of 

Bowman (1987), 226 Mont. 99, 734 P.2d 197, with the current code 

leads to the conclusion that if, as here, the party seeking 

modification of child support files his/her motion before the 

support obligation is discharged by the child's emancipation, 

reaching majority or the obligation under the decree and/or 

separation agreement being fulfilled--i.e., if the motion is filed 

while the court still has jurisdiction over support--then, and in 

that event, the court retains jurisdiction to modify support. See 

also § 40-4-201 (6) , MCA. Moreover, here, the court specifically 

retained jurisdiction to modify support in the 1982 Decree. 

Accordingly, I conclude that the court had the authority to and 

properly did extend the Husband's support obligation during the 

times that Stacia and Jamie remained enrolled in high school and 

until their graduation, but in no event later than the child's 19th 
birthday 

As our opinion readily acknowledges, "[tlhere may be 

situations where the time for child support payments should be 

extended . . . " If such a situation is not presented where the 

custodial parent has not had a child support increase in eleven 

years despite substantially increased costs of child rearing, where 

she has lost the benefit of her tax exemptions by season of a 

change in the IRS code, where she is attempting to raise two teen 

age daughters still in high school, and where the non-custodial 

parent's support payments do not comply with the Child Support 

Guidelines, then one can on 

Court has in mind. 

L-" 

Justice Karla M. Gray joins in the fqregoing dissenh. 
December 20, 1994 

CERTIFICATE OF SERVICE 

I hereby certify that the following certified order was sent by United States mail, prepaid, 

to the following named: 

Richard Dzivi, Esq.; Tonja D. Schaff, Esq. 

Richard Dzivi, P.C. 

P.O. Box 1291 

Great Falls, MT 59403-1291 

Daniel L. Falcon, Esq. 

Matteucci, Falcon, Squires & Lester, P.C. 

P.O. Box 149 

Great Falls, MT 59403-0149 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA . .