No. 14702 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

IN RE THE MARRIAGE OF 

DONNA M. BLISS, 

Petitioner and Respondent, 

VS . 

ROBERT E. BLISS, 

Respondent and Appellant. 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable C. B. Sande, Judge presiding. 

Counsel of Record: 

For Appellant: 

Towe, Ball, Enright and Mackey, Billings, Montana 

For Respondent : 

Claren Neal, Billings, Montana 

Calvin J. Stacey, Bi-llings, Montana 

Submitted on briefs: September 9, 1979 

Decided: APE I : l$@Q 

Clerk 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

The husband appeals from an order of the Yellowstone 

County District Court which modified his child support 

payments and awarded attorney fees to the wife for representation 

necessitated by the husband's initiation of the original 

petition to modify the divorce decree in relation to visitation 

and to permit him to inspect the home of the parties' for 

the purpose of making repairs. He also appeals from a 

subsequent order of the trial court which awarded $3,000 to 

the wife as attorney fees and costs anticipated for defending 

his appeal to this Court. 

This dispute centers around a property settlement 

agreement entered into by the parties one month before their 

divorce. The agreement provided for child custody and child 

support and stated that the husband should have sole interest 

in the family home. The husband agreed to pay the wife 

$100 per month for the support of the parties' minor daughter, 

with the proviso, however, that they were not to begin until 

the expiration of five years. He contends, however, that he 

made house payments as a substitute for child support. 

The agreement provided for child custody in the wife, 

but it appears that child support was tied into the house 

payments. It permitted the wife to live in the house rentfree for a five year period. If, on the other hand, the 

wife moved out of the house before the expiration of the 

five year period, monthly child support payments in the 

amount of $100 would start immediately. The husband also 

informed the wife that he would assume responsibility for the 

house payments which amount to $162 per month. The husband was 

not represented by counsel. Four days after the wife filed 

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her petition for dissolution of the marriage, the husband 

signed a document incorporating the terms previously mentioned. 

The husband was still not represented by counsel. 

In dissolving the marriage, the trial court entered an 

order which incorporated the parties' agreement and ordered 

the parties to comply with its terms. 

A year and a half after the dissolution, the husband 

petitioned the court to provide a child visitation schedule, 

and also to obtain an order permitting him to inspect the 

the 

parties' home for/purpose of making repairs. The wife filed 

a reply and a counterpetition, and sought an order which would 

divide the property and order the sale of the parties' home. 

The counterpetition, furthermore, alleged that the husband 

had not paid any child support since the dissolution, and 

asked that the husband not only pay back support but that he be 

required to pay $150 per month for the support of his minor 

daughter. The wife also requested reasonable attorney fees. 

The trial court refused to make a property division. 

The end result is that the wife is to stay in the home and 

the husband continues to make the monthly $162 payments. 

However, the trial court, in addition to this, ordered the 

husband to commence monthly $150 payments to the wife for 

child support. Additionally, the order provided that the 

husband was to pay $2,250 for back child support. This figure 

represented the time period between the time the wife filed 

her counterpetition and the time that the order for child 

support was entered. 

The trial court then filed an amended judgment. It set 

out a visitation schedule for the husband, but also provided 

that child support payments of $150 per month were - in 
addition to payments provided for by the so-called property 

settlement agreement. The order also provided for an award 

of $750 attorney fees to be paid by the husband to the 

wife's attorney. The husband appeals from both the child 

support order and the attorney fee order. 

After the husband filed his notice of appeal, the wife 

filed a motion in District Court asking for attorney fees 

and costs anticipated to be incurred in defending her husband's 

appeal. The trial court entered an order, ordering the 

husband to pay $3,000 in attorney fees and anticipated 

costs. The husband was ordered to make this payment on or 

before June 29, 1979. On June 28, 1979, the husband petitioned 

this Court for a writ of supervisory control. We issued an 

order staying the order of payment of $3,000 in fees so that 

the issue could be considered along with the other issues 

involved in this appeal. 

The wife argues that by the terms of the agreement incorporated into the divorce decree the husband did not have 

to pay child support for the first five years. Thus she now 

contends that the trial court's October 1978 order requiring 

child support payments, is not a modification of the original 

decree. The record on the whole, however, establishes that 

the wife's rent-free rental of the parties' house was agreed 

upon as a substitute for direct child support payments 

denominated as such. The wife did not dispute the husband's 

testimony that he had informed her that he would make mortgage 

payments on their house and allow her to live in the house 

for five years rather than paying her directly for child 

support. 

The husband's testimony is further supported by the 

provision of the divorce decree that the husband would 

commence direct child support payments should the wife move 

out of the house. The husband has not had to do this, 

however, because since the divorce the wife has lived in the 

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house and the husband has continued to make the mortgage 

payments. Thus we conclude that the trial court's finding 

that no child support payments have been made since the 

partiest divorce is not supported by substantial evidence. 

Clearly, therefore, the trial court's order requiring the 

husband to pay $150 per month for child support, is a modification 

of the support payments incorporated in the divorce decree. 

The trial court did not enter the appropriate findings 

and conclusions by which this Court can review an order 

modifying child support payments. Section 40-4-208(2)(b), 

MCA, authorizes a trial court to modify child support payments 

only "upon written consent of the parties", or upon a showing 

that "substantial and continuing" circumstances make the 

child support provisions "unconscionable." In her proposed 

findings the wife requested $150 per month as a reasonable 

sum for child support. The trial court adopted her finding 

in its order which stated: "$150.00 per month for the support 

and maintenance of the minor child is a reasonable sum. . ." 

This finding is clearly insufficient upon which to predicate 

a modification of the child support provisions in compliance 

with section 41M-208(2)(b). This section requires formal 

findings that substantial and continuing circumstances make 

the terms of child support unconscionable. See, Gianotti v. 

McCracken (1977), - Mont. - , 569 P.2d 929; See also, Kronovich 

v. Kronovich (1978), - Mont . , 588 P.2d 510. Absent 

the necessary findings, this Court will not independently 

search the record to determine if there is nonetheless an 

evidentiary basis for the order modifying the child support 

provisions. It is clear, therefore, that this case must be 

remanded to the trial court for entry of the appropriate 

findings. 

The husband contends next that the trial court erred 

in awarding $750 attorney fees to wife's attorney for legal 
services rendered in seeking the increased child support 

payments. The evidence concerning each of the parties' 

incomes presented at the hearing, supports the trial court's 

decision allowing attorney fees. The husband does not 

dispute the amount of the fee and we conclude that the trial 

court did not abuse its discretion. 

The last issue concerns the award of attorney fees and 

costs to the wife so that she could defend the present appeal 

filed by the husband. We conclude that the $3,000 attorney 

fee order is manifestly in error. The trial court's authority, 

if such exists, to award attorney fees for purposes of appeal, 

arises from section 40-4-110, MCA. This section provides 

that the court may order one party to pay the other's attorney 

fees "for legal services rendered and costs incurred . . . 

after entry of judgment." (Emphasis added.) This section 

contemplates that under normal circumstances, an order for 

attorney fees will be permitted only after counsel for the 

benefited party has completed his services. 

The order here requires payment for expenses that are 

purely speculative. At the time the trial court entered the 

order requiring the husband to pay $3,000 on or before June 

29, 1979, the wife's attorney had only completed preliminary 

work in relation to the appeal. His affidavit in support of 

the wife's motion for attorney fees, indicated that he had 

completed only 20 percent of the work expected for this appeal. 

His anticipated time included hours spent for activities 

which in fact he was never required to perform. For example, 

the affidavit listed 5 hours time to prepare for and present 

oral argument before this Court. But, because of the nature 

of the case and the issues involved, this Court ordered the 

case submitted on briefs. Thus the need for oral argument 

is nonexistent. 

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And there is another factor which this Court must 

address. In his affidavit, the wife's counsel declared 

that he had spent over 60 hours in preparing for the hearing 

in support of the wife's motion for an advance award of 

attorney fees. Although the order is silent, it appears 

that the court's attorney fee award is at least in part to 

compensate counsel for the time spent in securing a court 

order for payment of his fee rather than for his time spent 

in responding to the husband's appeal. We reject the notion 

that the court may require one party to pay opposing counsel 

for his time spent in seeking justification of the fees he 

desires. The practice of law has its burdens as well as 

benefits, and this is one burden that counsel must bear 

without an expectation of compensation. 

We note with respect to the issue of attorney fees on 

appeal, the brief filed on behalf of the wife in this Court 

is silent. Counsel's failure to respond to this issue raised 

by the husband, we believe, speaks for itself. 

The trial court's child support order is vacated, and 

this issue is remanded to the District Court for further 

proceedings consistent with this opinion. The order awarding 

$3,000 in attorney fees to be paid to the wife's attorney, is 

reversed. The District Court's award of $750 attorney fees 

for services rendered in District Co 

We Concur: u 

Chief Justice