No. 13913 INTHE SUPREME COURT OF THE STATE OF MONANA 1978

GARY LEE OLSON,Plaintiff and Appellant,

SHIRLEY ANN OLSON, Defendant and Respondent.

Appeal from: DistrictCourt 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: 

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# - 1978 Filed: 

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# -1OJBMr. Justice Frank I. Haswell delivered the Opinion of the Court.

This is an appeal by the father of three minor children froman 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 ($125per month per child) during the children's periods of visitation with theirmother, (the noncustodial parent) plus the children's cost of transportation to themother's home in Everett, Washington. The fatherwas awarded a default divorce from the mother

on September 23, 1975. Themother 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 amotion and affidavit to set aside the default divorcedecree. In her affidavit she alleged that she had been unable to obtain legal counsel to represent her in the divorceproceeding. She further alleged that the childrenhad asked to come and livewith 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 supporton July 19, 1976. After hearing thematter, 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 Christmasvacation; that the fatherpay to the mother $375per month child supportwhen thechildren arewith 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 solew 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 convenientmeans 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 onmodification 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 lawprovides 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 reliefwas personally served, themotion for relief on the grounds of excusable neglectmust be made within sixty days of entry of the judgment. In this case themotion by themother 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 themodification statute. Itprovides in pertinent part:"Modification. (1) No motion to modify a custody decreemay be made earlier than two (2)years after its date,unless the courtpermits it to be made on the basis of affidavits that there is reason to believe the child's present environment may endanger seriouslyhis physical,mental,moral, or emotional health." In interpreting this section,we have held that subsection (1) is a jurisdictional prerequisite to amodification action. Holm Mont

# . v. Holm, (1977)

## , , 560 P.2d 905, 34 St.Rep. 118. There itwas held that the District Court lacked jurisdiction to change custodywithin two years of the original award when it specifically found that the custodianwas a fit and proper parent. A similar findingwas made in this case. The District Court found that both themother and fatherwere fit to be awarded custody. That finding alone establishes a lack of jurisdiction in the District Court to set aside ormodify 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 continuousand uninterrupted wrangling over who the custodianwill 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: 

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## * * * During that two-yearperiod, 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 themoving 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.Themother, in this case,did notmake this required showing by affidavit. Itmay be argued that the District Courtmodified the mother's visitation rights rather than the custody award and section 48-339 should have no application. The basis of this argumentwould be that themother, 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 15of every year. We remain unconvinced. In Coloradowhere the Uniform Marriage and DivorceAct is in effect, it has been held that the two-year prohibition on motions tomodify custody does not apply tomotions formodification of visitation rights. Manson v. Manson, 35 Colo.App. 144, 529 P.2d 1345. We do not disagreewith this rule. However, it is our opinion that here the District Court, in effect,modified the original custody decree 

### by allowing themother to have the children from June 15 to August 15of each year. In the original decree the fatherhad custody twelvemonths of the year. Under the order on appeal the father will have custody ten months of the year and the mother twomonths. 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 ofmarriage, legal separation, maintenance, or child support, the courtmay 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 themarriage not been dissolved;"(4) the physical and emotional conditionof 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 therewas insufficientevidence at the hearing concerning the financial resources of the custodial parent, the financial resources of the noncustodial parent, and the financial resourcesof the children, if any. Themother contends that the statute on child supportwas 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 15years

as a meat cutter which he describes as a "good job". The father has amobile home whichwas 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 conclusionsof law, the father stated that his take home pay was approximately $600 per month although therewas no testimony to this effect at the hearing. Themother works as a receptionist for a group of physicians and receives a $630per month salary for a 40hour 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 childrenwithout any support money from their father. We hold that the evidence is insufficient to justify the DistrictCourt's order on child support and that the statutory requirementsof section 48-323 have not been met. Mont

# . In Berthiaumev. Berthiaume, (1977), 

## , 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 ofmarital property without any testimony as tothe value of the property. This rationale is equally applicable here. The District Court, in ordering the father to pay the mother $375per 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 howmuch money was necessary to meet the children's needs. Therewas 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), 103Mont. 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 conditionor 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 Courtmodifying the child custody, child support and visitation rights established in the originaldivorce decree is vacated. The provisions of the original divorce decree are reinstated.

Justice We concur:

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