No. 93-418 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

IN RE THE MARRIAGE OF 

KAYLA COX, 

Petitioner/Respondent, 

and 

JERRY COX, 

Respondent/Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Thomas M. McKittrick, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Richard J. Carstensen, Attorney Pro Bono, Billings, 

Montana 

For Respondent: 

R. V. Bottomly, Great Falls, Montana 

Submitted on Briefs: June 16, 1994 

AUG 5 - 1994 Decided: August 5, 1994 

Filed: x 
Justice James C. Nelson delivered the Opinion of the Court. 

Jerry Cox, Appellant before this Court, and Respondent in the 

District Court dissolution proceedings below (Jerry or Respondent), 

appeals an order of the Eighth Judicial District Court, Cascade 

County, dismissing without a hearing his motions regarding 

visitation, support, and motion for a temporary restraining order. 

Jerry also appeals the court's inclusion in its dismissal certain 

rulings regarding child support, costs and attorney fees, and 

conditions as to visitation. We reverse and remand for further 

proceedings consistent with this opinion. 

Jerry raises two issues on appeal: 

1. Did the District Court err in denying Respondent a 

hearing on his motions to modify visitation, child 

support, and motion for a temporary restraining order? 

2. Did the District Court err by including various 

rulings in its Order of Dismissal relative to child 

support, attorney fees and costs, and conditions as to 

visitation when it did not hear any evidence concerning 

the rulings. 

This action began as a dissolution proceeding in June of 1988, 

when Kayla Cox (Kayla or Petitioner), filed a Petition for 

Dissolution. A Final Decree of dissolution was filed on March 8, 

1989. The decree awarded Jerry visitation rights and ordered him 

to pay child support for the parties1 two minor children. 

In the spring of 1990 Jerry became disabled and applied for 

Social Security benefits. In October of 1992, he was awarded 

Social Security disability benefits, retroactive to April 1990. On 

November 12, 1992, Kayla had a Writ of Execution levied upon the 

Social Security Administration to secure past due child support, 
medical care and attorney fees for the sum of $26,815.52. The writ 

required that Jerry's obligation for past due child support be 

satisfied from past-due Social Security benefits which were payable 

to Jerry in a lump-sum. The writ also required the Social Security 

Administration to withhold $300.00 per month from future disability 

payments made to Jerry to satisfy the payment of the monthly child 

support provided for in the decree. 

On March 1, 1993, Jerry moved the court for a modification of 

visitation and support and moved the court to issue a temporary 

restraining order restraining Kayla from executing upon his Social 

Security benefits until a hearing could be held concerning how the 

Social Security benefits should be distributed. On May 17, 1993, 

Kayla moved to dismiss Jerry's motion for modification on the 

grounds that Jerry had no standing to request any relief, because 

according to Kayla, he had refused to comply with any prior court 

order connected to the dissolution and subsequent proceedings. 

The parties appeared before the Honorable Thomas McKittrick on 

May 27, 1993. Kayla was represented by counsel, and Jerry appeared 

pro se. After hearing argument from Kayla's counsel supporting her 

motion to dismiss, and Jerry's response to the argument, the 

District Court dismissed the motion to modify without allowing 

either party to present any evidence in support of their motions. 

The District Court reduced to writing its ruling granting 

Kayla's motion to dismiss in an order dated June 11, 1993. 

Included in the Order of Dismissal were the following rulings: (1) 

the lump sum Social Security benefits had been attached by the Writ 
of Execution and so that issue was moot; (2) the lump sum Social 

Security benefits were insufficient to fulfill Jerry's past due 

child support obligation, and therefore he was still in default of 

his obligation to pay child support and other liabilities imposed 

under the decree in the amount of $11,197.96: (3) that the court 

would not modify visitation or child support until Jerry complied 

with orders of the court and until he paid in full his past child 

support obligation, attorney fees and costs. The District Court 

also made additional rulings as to visitation and ordered Jerry to 

fulfill certain conditions, such as attend psychological testing 

and undergo a home environment study, before the court would modify 

visitation. 

I. FAILURE TO PROVIDE A HEARING 

The first issue Jerry raises on appeal concerns whether the 

District Court erred in denying him a hearing on his motions to 

modify. Jerry argues that before the District Court can dismiss 

his motions, he is entitled to a hearing where he can present 

evidence to support his motions. 

The standard for this Court in reviewing discretionary trial 

court rulings is whether the trial court abused its discretion. 

Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 475, 

803 P.2d 601, 603-04. While acknowledging the frustration of the 

District Court (and of opposing counsel), as evidenced by the 

record, we, nevertheless, conclude that the court's rulings at 

issue here were an abuse of discretion. 

A. CHILD SUPPORT 
Jerry argues that the District Court erred when it denied him 

the opportunity to present evidence in support of his motion to 

modify child support. Child support provided for in a decree may 

be modified "upon a showing of changed circumstances so substantial 

and continuing as to make the terms uncon~cionable.~~ Section 40-4- 

208(2) (b) (i) , MCA. Accordingly, it is essential that an 

evidentiary basis support any finding that it either would or would 

not be unconscionable to continue the child support payments set 

forth in the decree. Gall v. Gall (1980), 187 Mont. 17, 20, 608 

P.2d 496, 498. 

In the instant case there was no evidentiary basis for the 

District Court's dismissal of Jerry's motion to modify. The 

District Court summarily dismissed the motion without providing 

Jerry the opportunity to present any evidence. According to the 

statutory language, Jerry was entitled to make a showing of changed 

circumstances. We therefore hold that the court abused its 

discretion in denying Jerry this opportunity. 

Kayla argues that Jerry does not come to the court with clean 

hands as he did not voluntarily make his child support payments. 

Therefore, according to Kayla, the District Court had the equitable 

power to dismiss Jerry's motions without providing a hearing. 

While we recognize the principle that one seeking equity must do 

equity, and that the nonpayment of child support is inequitable, 

our statutes do not require that child support obligations be 

current, before a party petitions for modification. Section 40-4- 

208, MCA; In re the Marriage of Carlson (1984) , 214 Mont. 209, 214, 
693 P.2d 496, 499. 

B. VISITATION 

Jerry also contends the District Court erred in dismissing his 

motion for modification of visitation without providing him a 

hearing on the motion. According to 5 40-4-217(3), MCA, a 

visitation order may be modified Itwhenever modification would serve 

the best interest of the child." This Court has previously held 

that this section contemplates the trial court hold a visitation 

hearing and issue findings that modification would be in the 

child's best interest. Strong v. Weaver (1984), 211 Mont. 320, 

In the instant case the District Court did not hold a 

visitation hearing. In addition, the District Court made the 

following finding in support of its order dismissing Jerry's motion 

to modify visitation: 

The Court sees no reason to make any changes respecting 

visitation or to modify child support obligations. The 

Respondent is not in any position to request such 

assistants [sic] from the Court until such time as the 

Respondent gets into compliance with the Orders of the 

Court and establishes a course of action that would 

demonstrate an interest in visiting his children and 

seeing to it that the past due child support obligation 

is paid in full and to pay attorneys fees and costs 

required to bring him into compliance with the Court's 

Order. 

It is apparent from court's order that the court conditioned 

modification ofthe visitation arrangements set forth in the decree 

upon Jerry's compliance with his child support payments. This 

ruling was in error. See, In re the Marriage of Harper (1988), 235 

Mont. 41, 46-47, 764 P.2d 1283, 1286; and State ex rel. Dewyer v. 
Knapp (l984), 208 Mont. 19, 22, 674 P.2d 1104, 1106, affirmed in 

Matter of Adoption of K.L.J.K. (1986), 224 Mont. 418, 421, 730 

P.2d. 1135, 1137. Section 40-4-109, MCA, provides that visitation 

and support are independent of each other. See also, 5 40-5-124, 

MCA (1991), in effect at the time of the court's rulings. 

Therefore we hold that the District Court erred in dismissing 

Jerry's motion to modify visitation without holding an evidentiary 

hearing. 

11. INCLUSION OF ADDITIONAL RULINGS 

The second issue Jerry raises on appeal concerns whether the 

District Court erred by including various rulings in its Order of 

Dismissal relative to child support, conditions as to visitation, 

and attorney fees and costs, when it did not hear any evidence 

concerning the rulings. 

A. CHILD SUPPORT 

Jerry contends that it was error for the District Court to 

make a finding that he owed past due child support and other 

liabilities imposed under the original decree in the amount of 

$11,197.96, when no evidence supporting that determination was 

presented to the court. It appears from the record that the 

District Court simply adopted the arrearage figure set forth in 

Kayla's brief and included that figure in its Order of Dismissal, 

when it found Jerry was liable for $11,197.96 in unpaid child 

support and other liabilities imposed under the original decree. 

This Court has previously held that a trial court cannot base 

child support upon speculation. Duffey v. Duffey (1981), 193 Mont. 
241, 244, 631 P.2d 697, 699. (Citation omitted.) In the instant 

case the District Court did not hear evidence from either party as 

to the amount of child support arrearage. Because no evidence was 

presented supporting its determination of the amount of child 

support arrearage, we hold that the District Court's conclusion 

that a portion of the $11,197.96 was due for past due child 

support, was speculative and should not have been included in the 

Order of Dismissal. Similarly, no evidence was presented 

demonstrating the amount of other obligations Jerry is allegedly 

responsible for according to the terms of the original decree. 

B. VISITATION 

In its Order of Dismissal, the District Court ruled that it 

would not modify Jerry's visitation rights until he had fulfilled 

the following conditions: (1) have a home environment study 

conducted at his expense; (2) undergo psychological testing; (3) 

communicate his visitation requests directly to Kayla, and not the 

children; and (4) give sufficient advance notice of an agreeable 

time and place of visitation before it could take place. Jerry 

alleges it was error for the District Court to include conditions 

as to visitation in its order when he was not given the opportunity 

to testify or present evidence on the visitation issue. We agree. 

Section 40-4-217(3), MCA, provides that a court may modify a 

an order granting or denying visitation rights whenever it finds 

modification would serve the best interests of the child. See also, 

In re the Marriage of Firman (1980), 187 Mont. 465, 468, 610 P.2d 

178, 180. 
While in order to intelligently and fairly rule on a parent's 

motion to modify visitation, the court may need to develop the 

evidentiary record with the sort of information contemplated by (1) 

and (2) of the court's order, and while, on the basis of the 

evidentiary record before the court, it may ultimately be 

appropriate for the court to condition visitation with the sorts of 

requirements contemplated by (3) and (4), it is equally clear that 

such requirements and conditions can be imposed in connection with 

a parent's motion to modify visitation only on the basis of 

evidence developed in conjunction with a visitation hearing or 

hearings of which the parties have appropriate notice and 

opportunity to testify. Moreover, such conditions and requirements 

may be imposed only if doing so would serve the children's best 

interests. Stronu v. Weaver, 683 P.2d at 1331; In re the Marriaue 

of Firman, 610 P.2d at 180. 

We hold that the District Court erred by imposing the 

referenced conditions and requirements without affording Jerry the 

opportunity for a hearing on his motion and without determining 

that such conditions and requirements would serve the best 

interests of the children. 

C. ATTORNEY FEES AND COSTS 

The District Court awarded Kayla attorney fees and costs in 

conjunction with her attempt to secure child support payments. 

Jerry alleges it was error to include the award of attorney fees in 

the Order of Dismissal when he was not given the opportunity to 

present evidence to refute the claim. Again, we agree. 
It is clear that a court may in its discretion, after 

considering the financial resources of both parties, award attorney 

fees incurred by a party in maintaining or defending a proceeding 

to secure child support payments. See, 5 40-4-110, MCA. Moreover, 

this Court will not disturb the award of attorney fees if it is 

supported by substantial evidence. In re the Marriage of Barnard 

(1990), 241 Mont. 147, 154, 785 P.2d 1387, 1391-92. The evidence 

presented must demonstrate that the attorney fees and costs are 

reasonable. In re the Marriage of Aanenson (1979), 183 Mont. 229, 

236, 598 P.2d 1120, 1124. To make the showing, a hearing must be 

held allowing for oral testimony, introduction of exhibits, and an 

opportunity to cross-examine in which the reasonableness of the 

attorney fees claimed is demonstrated. In re the Marriaqe of 

Aanenson, 598 P.2d at 1124. 

In the instant case the District Court did not hear any 

evidence concerning attorney fees. In fact, the issue was never 

raised at the May 27th hearing. We hold that the District Court 

erred in awarding attorney fees and costs to Kayla when it did not 

hear any evidence concerningthe necessity for or reasonableness of 

the award. 

In summary, while the sorts of rulings which the court made in 

this case may be proper if supported by a record developed on the 

basis of an evidentiary hearing and on due consideration of 

applicable statutory criteria, it was error for the court to make 

such rulings without an evidentiary hearing and without providing 

the parties adequate opportunity to testify and present evidence. 
Underlying the court's rulings in this case is its apparent 

frustration with Respondent's failure to comply with prior court 

orders. On that basis, Kayla argues in her brief that the District 

Courtf s rulings were proper under Rule 41 (b) , M.R. Civ. P. That rule 

provides for involuntary dismissal of an action for, among other 

things, "... failure of the plaintiff ... to comply with ... any order 

of [the] court." Aside from the fact that Kaylafs motion to 

dismiss Jerryfs motion to modify did not refer to Rule 41(b), and 

is, thus, argued for the first time on appeal, we have held that 

". . . dismissal under Rule 41(b), M.R.Civ.P. is a harsh remedy. 

Because the result is severe, courts should refrain from dismissing 

an action or claim unless there is no other adequate remedy 

available and where the facts sufficiently call for such a result." 

Chisholm v. First Nat. Bank of Glasgow (1988), 235 Mont. 219, 220, 

766 P.2d 868, 869. In this case there is another adequate remedy 

available to the court in the event that Respondent wrongfully 

fails or refuses to abide by the court's orders -- namely contempt. 

Section 40-4-201(5), MCA; see, In re the Marriage of Robbins 

(1985), 219 Mont. 130, 711 P.2d 1347. 

REVERSED AND REMANDED FOR F 

THIS OPINION. 

We Concur: 

&ief Justice 

August 5, 1994 

CERTIFICATE OF SERVICE 

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

following named: 

Richard J. Carstensen 

Attorney Pro Bono 

P. 0. Box 2093 

Billings, MT 59103-2093 

R. V. Bottomly 

Attorney at Law 

P.O. Box 1788 

Great Falls, MT 59403 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA