No. 14702 IN THE SUPREME COURT OF THE STATE OF MONTANA 1980

IN RE THE MARRIAGE OF DONNAM. 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

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ClerkMr. Justice Daniel J. Shea delivered the Opinion of the Court.

The husband appeals from an order of the Yellowstone County District Courtwhich modified his child support payments and awarded attorney fees to the wife for representation necessitated by thehusband's initiationof the original petition tomodify 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 thewife 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 onemonth before their divorce. The agreementprovided for child custody and child support and stated that the husband should have sole interest in the familyhome. The husband agreed to pay the wife $100per month for the support of the parties' minor daughter, with the proviso, however, that they were not to begin until the expiration of fiveyears. He contends, however, that he made housepayments as a substitute for child support. The agreementprovided for child custody in the wife, but it appears that child supportwas tied into the house payments. Itpermitted the wife to live in the house rentfree for a fiveyearperiod. If,on the other hand, the wife moved out of the house before the expiration of the fiveyearperiod,monthly child support payments in the amount of $100 would start immediately. The husband also informed the wife that hewould assume responsibility for the housepayments which amount to $162per month. The husband was not represented by counsel. Four days after the wife filed -2-her petition fordissolution of the marriage, the husband signed a document incorporating the termspreviously mentioned. The husband was still not representedby counsel. In dissolving themarriage, the trial court entered an order which incorporated the parties' agreement and ordered the parties to complywith its terms. A year and a half after the dissolution, the husband petitioned the court toprovide a child visitation schedule, and also to obtain an order permitting him to inspect the the parties' home for/purpose of making repairs. Thewife 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 notpaid any child support since the dissolution, and asked that the husband not only pay back support but that he be required to pay $150per month for the support of his minor daughter. Thewife 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 $162payments. However, the trial court, in addition to this, ordered the husband to commencemonthly $150 payments to the wife for child support. Additionally, the order provided that the husbandwas to pay $2,250 forback child support. This figure represented the timeperiod between the time the wife filed her counterpetition and the time that the order for child supportwas 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 $150per month were - inaddition to payments provided for by the so-called property settlementagreement. The order alsoprovided 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 supervisorycontrol. We issued an order staying the order of payment of $3,000 in fees so that the issue could be considered alongwith 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 fiveyears. 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 thewife's rent-free rental of the parties' housewas agreed upon as a substitute fordirect child supportpayments denominated as such. The wife did not dispute the husband's testimony that he had informedher that he would make mortgage payments on their house and allow her to live in the house for five years rather thanpaying her directly for child support. The husband's testimony is further supportedby the provision of the divorce decree that the husband would

commencedirect 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 -4-house and the husband has continued to make the mortgage payments. Thuswe conclude that the trial court's finding that no child supportpayments have been made since the partiestdivorce isnot supported by substantial evidence. Clearly, therefore, the trial court's order requiring the husband to pay $150per month for child support, is 

### amodification of the support payments incorporated in the divorce decree. The trial courtdid not enter the appropriate findings and conclusionsby which thisCourt can review an order modifying child supportpayments. Section 40-4-208(2)(b), MCA, authorizes a trial court tomodify child support payments only "uponwritten consent 

### of the parties", or upon 

### a showing that "substantial and continuing" circumstancesmake the child support provisions "unconscionable." Inher proposed findings the wife requested $150per month as a reasonable

sum for child support. The trial court adopted her finding in its order which stated: "$150.00per month for the support and maintenance of theminor child is a reasonable sum. 

# . ." This finding is clearly insufficient upon which to predicate a modification of the child support provisions in compliance with section41M-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 legalservices rendered in seeking the increased child support payments. The evidence concerning each of the parties' incomespresented at the hearing, supports the trial court's decision allowing attorney fees. Thehusband 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 ismanifestly 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 courtmay order oneparty to pay the other's attorney fees "for legal servicesrendered and costs incurred

# . . . after entry of judgment." (Emphasisadded.) This section contemplatesthat 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 requirespayment 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, thewife's attorneyhad only completed preliminary work in relation to the appeal. His affidavit in support of thewife's motion for attorney fees, indicated that he had completed only 20 percent of thework 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 5hours 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 onbriefs. Thus the need for oral argument 

### is nonexistent. -6-And there is another factorwhich this Court must address. In his affidavit, the wife's counsel declared that he had spent over 60hours in preparing for the hearing in support of thewife'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 forpayment of his fee rather than for his time spent in responding to the husband's appeal. We reject the notion that the courtmay requireoneparty to pay opposing counsel forhis time spent in seeking justification of the fees he desires. The practice of lawhas its burdens as well as benefits, and this is oneburden that counsel must bear without an expectation of compensation. We notewith 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 thewife's attorney, is reversed. The DistrictCourt's award of $750 attorney fees for servicesrendered in District Co



### u We Concur:

Chief Justice