No. 13913 

IN THE SUPREME COURT OF THE STATE OF MONANA 

1978 

GARY LEE OLSON, 

Plaintiff and Appellant, 

SHIRLEY ANN OLSON, 

Defendant and Respondent. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable Jack L, Green, Judge presidin~. 

Counsel of Record: 

For Appellant: 

Tipp, Eoven and Skjelset, Missoula, Montana 

Raymond P. Tipp argued, b!issoula, Montana 

For Respondent : 

Balyeat and Kammerer, Missoula, Montana 

H. John Balyeat argued, Missoula, Montana 

Submitted: January 19, 1978 

Decided: FEB 3 - 1978 

Filed: FEB 3 - 1OJB 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

This is an appeal by the father of three minor children 

from an order of the Missoula County District Court covering 

child custody, sujjpoit and visitation rights. This order requires the father (the custodial parent) to pay $375 per month 

child support ($125 per month per child) during the children's 

periods of visitation with their mother, (the noncustodial parent) 

plus the children's cost of transportation to the mother's home 

in Everett, Washington. 

The father was awarded a default divorce from the mother 

on September 23, 1975. The mother had been personally served 

with the divorce complaint in the State of Washington. The divorce 

decree awarded custody of the three children to the father and 

contained no provision for child support. 

On April 6, 1976, the mother filed a motion and affidavit 

to set aside the default divorce decree. In her affidavit she 

alleged that she had been unable to obtain legal counsel to represent her in the divorce proceeding. She further alleged that the 

children had asked to come and live with her because their father 

works full time and spends additional time away from home, leaving 

the children in the care of the oldest child, age twelve. The 

mother's motion was granted with respect to opening up the child 

custody and support provisions of the decree. The ~istrict Court, 

in its order granting the motion, did not specify the basis for 

doing so. This order is not being appealed. 

The District Court held a full hearing on child custody 

and support on July 19, 1976. After hearing the matter, the 

court ordered that the children remain in the custody of the 

father; that the mother have the children from June 15 to August 

15 of every year, and every other Christmas vacation; that the 

father pay to the mother $375 per month child support when the 
children are with their mother, as well as the costs of transportation for the children to the mother's home in the State 

of Washington. The father now appeals from this order. 

The sole w issue on appeal raised by the parties is 

whether there is sufficient evidence to support the court's 

order on child support. 

Before addressing this issue, we must comment on the proceedings in this case. We believe that the procedure used in 

this case, i.e., setting aside the default divorce decree provisions relating to child custody and readjudicating this issue, 

could be a convenient means of circumventing the two-year prohibition against modification of custody decrees contained in 

section 48-339, R.C.M. 1947. Both counsel agree that this could 

be the effect of the procedure used in this case, but deny any 

intent to circumvent the two-year prohibition on modification of 

child custody decrees. At oral argument both counsel stated that 

the default decree was set aside for excusable neglect on the part 

of the mother in responding to the divorce action. 

Montana law provides that a party, by motion, may seek 

relief from a judgment by having it set aside. A judgment can 

be set aside because of excusable neglect on the part of the party 

seeking relief. Rule 60 (b) (1) , M.R.Civ.P. However, Rule 60 (b) , 

M.R.Civ.P.,provides that when the party seeking relief was personally served, the motion for relief on the grounds of excusable 

neglect must be made within sixty days of entry of the judgment. 

In this case the motion by the mother was filed approximately six 

months after the default decree was entered. Thus, the decree 

should not have been set aside for excusable neglect when the 

motion was not made within the time limits of Rule 60(b). 

Section 48-339, R.C.M. 1947, is the modification statute. 

It provides in pertinent part: 
"Modification. (1) No motion to modify a custody 

decree may be made earlier than two (2) years 

after its date, unless the court permits it to 

be made on the basis of affidavits that there is 

reason to believe the child's present environment 

may endanger seriously his physical, mental, moral, 

or emotional health." 

In interpreting this section, we have held that subsection (1) 

is a jurisdictional prerequisite to a modification action. Holm 

v. Holm, (1977) , Mont . , 560 P.2d 905, 34 St.Rep. 118. 

There it was held that the District Court lacked jurisdiction to 

change custody within two years of the original award when it 

specifically found that the custodian was a fit and proper parent. 

A similar finding was made in this case. The District Court 

found that both the mother and father were fit to be awarded 

custody. That finding alone establishes a lack of jurisdiction 

in the District Court to set aside or modify the divorce decree 

in regard to custody. 

We have adopted the rationale behind section 48-339, R.C.M. 

1947. Holm v. Holm, supra. The purpose of this section is to 

provide a degree of stability to custody awards. This stability 

best serves the welfare of the children, whereas continuous and 

uninterrupted wrangling over who the custodian will be does not. 

We do note that there is an exception in section 48-339 

to the two-year limitation. This exception, however, is not to 

be liberally applied. The comment of the committee, which acted 

for the National Conference of Commissioners on Uniform State 

Laws in promulgating the Uniform Marriage and Divorce Act, best 

expresses how the exception is to be applied: 

" * * * During that two-year period, a contestant 

can get a hearing only if he can make an initial 

showing, by affidavit only, that there is some 

greater urgency for the change than that the child's 

best interest' requires it. During the two-year 

period the judge should deny a motion to modify, 

without a hearing, unless the moving party carried 

the onerous burden of showing that the child's 

present environment may endanger his physical, 

mental, moral or emotional health." 9 U.L.A. 

Matr., Fam., & Health Law, S409. 
The mother, in this case, did not make this required showing 

by affidavit. 

It may be argued that the District Court modified the 

mother's visitation rights rather than the custody award and 

section 48-339 should have no application. The basis of this 

argument would be that the mother, in the original decree, had 

reasonable visitation rights, and under the order of the District Court those visitation rights have been modified to the 

period between June 15 to August 15 of every year. We remain 

unconvinced. 

In Colorado where the Uniform Marriage and Divorce Act 

is in effect, it has been held that the two-year prohibition on 

motions to modify custody does not apply to motions for modification of visitation rights. Manson v. Manson, 35 Colo.App. 144, 

529 P.2d 1345. We do not disagree with this rule. However, it 

is our opinion that here the District Court, in effect, modified 

the original custody decree by allowing the mother to have the 

children from June 15 to August 15 of each year. In the original 

decree the father had custody twelve months of the year. Under 

the order on appeal the father will have custody ten months of 

the year and the mother two months. Labeling this "visitation" 

does not change its substance which is "custody". 

Turning to the issue of child support, the relevant 

statutory provision is section 48-323, R.C.M. 1947. It reads: 

"Child support. In a proceeding for dissolution 

of marriage, legal separation, maintenance, or 

child support, the court may order either or 

both parents owing a duty of support to a child 

to pay an amount reasonable or necessary for 

his support, without regard to marital misconduct, after considering all relevant factors 

including: 

"(1) the financial resources of the child; 

"(2) the financial resources of the custodial 

parent; 

" (3) the standard of living the child would have 

enjoyed had the marriage not been dissolved; 
"(4) the physical and emotional condition of 

the child, and his educational needs; and 

"(5) the financial resources and needs of the 

noncustodial parent." 

On appeal the father argues that there has been no compliance with this statute. He contends that there was insufficient evidence at the hearing concerning the financial resources 

of the custodial parent, the financial resources of the noncustodial parent, and the financial resources of the children, if 

any. The mother contends that the statute on child support was 

complied with and there is sufficient evidence to support an award 

of child support to her. 

The evidence presented at trial concerning child support 

is as follows: The father has worked at Buttrey's for 15 years 

as a meat cutter which he describes as a "good job". The father 

has a mobile home which was awarded to him in the original decree. 

He owns a boat and camper with which he often goes fishing. In 

his exceptions to the findings of fact and conclusions of law, 

the father stated that his take home pay was approximately $600 

per month although there was no testimony to this effect at the 

hearing. The mother works as a receptionist for a group of 

physicians and receives a $630 per month salary for a 40 hour 

week. She and her roommate rent a four bedroom house for $125 

per month. She testified that if she were given custody, she 

would be able to support the children without any support money 

from their father. 

We hold that the evidence is insufficient to justify the 

District Court's order on child support and that the statutory 

requirements of section 48-323 have not been met. 

In Berthiaume v. Berthiaume, (1977), Mont . , 567 

P.2d 1388, 34 St.Rep. 921, we held that the District Court abused 

its discretion in making and ordering an alleged equal division 

and distribution of marital property without any testimony as to 
the value of the property. This rationale is equally applicable 

here. 

The District Court, in ordering the father to pay the 

mother $375 per month child support, had no evidence as to the 

monthly income of the father. The court had no evidence as to 

his monthly expenses. The court had no evidence as to how much 

money was necessary to meet the children's needs. There was no 

evidence as to what the children's financial resources were, if 

any. In short, the District Court could not, with the evidence 

before it, determine if its child support award was reasonable, 

excessive, or inadequate. 

In Herrin v. Herrin, (1936), 103 Mont. 469, 63 P.2d 137, 

this Court held that there was insufficient evidence to support 

a judgment granting the wife separate maintenance when there was 

no evidence as to the husband's financial condition or earning 

capacity. The court said that the imposition of an obligation 

to pay maintenance was unwarranted in the absence of a showing 

of an ability to pay. We hold that imposing an obligation to 

pay child support without any evidence of an ability to pay is 

unwarranted. 

The order of the District Court modifying the child custody, child support and visitation rights established in the 

original divorce decree is vacated. The provisions of the original divorce decree are reinstated. 

Justice 

We concur: .- 

- Justices L' -6-