No. 90-050 IN THE SUPREME COURT OF THE STATE OF MONTANA

IN RE THE MARRIAGE OF JODI RAE HALL, Petitioner and Appellant, and ROBERT WALKER HALL, Respondent and Respondent.

APPEAL FROM: District Court of theThirteenth Judicial District, In and for the County of Carbon, The Honorable G. Todd Baugh, Judge presiding.

COUNSEL OF RECORD: For Appellant: Gary R. Thomas, Thomas Law Office, Red Lodge, Montana For Respondent: Kent E. Young, Red Lodge, Montana

Filed: Submitted on Briefs: August 9, 1990

O Decided: September 11, 1990Chief Justice J. A. Turnage delivered the Opinion of the Court Jodi RaeHall (nowJodi Rae Bangart) appeals thedecisionmade by the Thirteenth Judicial Court, Carbon County, which denied her Petition for Income Deduction, denied a retroactive child support increase for 1987, modified her requests for retroactive child support increases for 1988 and 1989, and modified her award of attorney fees. We affirm inpart, and reverse and remand in part. Appellant raises the following issues: 1. Did the DistrictCourt err indenying appellant's Petition for Income Deduction? 2. Did the District Court err indetermining that retroactive child support increasesshouldbe effective January 1, 1988,rather than January 1, 1987? 3. Did the District Court err in determining 1988 child support to be $235.00 per month and 1989 child support to be $255.00 per month? 4. Did the District Court err in awarding the appellant's attorney fees of $1,125.00? Jodi Rae Hall and Robert Walker Hall were divorced on August 3, 1981, following 

### a five-year marriage. One child, Shawn David Hall, was born during the marriage on August 7, 1976. The partiess Custody, Support and Property Settlement Agreement (hereinafterAgreement), whichwas incorporated into the Final Decree,granted Jodi solecustody of Shawnand granted Robert reasonable visitation rightstoShawn. Additionally,theAgreementcalled for Robert to pay Jodi monthly child support payments of $175.00, and specified that if either party initiated court proceedings concerningthisAgreement,theunsuccessfulpartywould pay the prevailing party's attorney fees. In 1986,when Robert was seriously in arrears with his child support payments, Jodi moved the District Court for a show cause hearing, requesting the court to hold Robert in contempt for failing topay child support as specified intheAgreement. Robert and Jodi, in a Stipulation approved by an Order filed on January 7, 1987, agreed, among other things, to the following: 1) Robert owed Jodi $3,357.20 indelinquentchild support payments, 2) Robert owed Jodi $290.74 for Jodi's attorney fees and costs, 3) Robert would increase his monthly child support payment from $175.00 to $200.00 effective November 1,1986,4) Robertwould pay Jodi $35.00 monthly toward the delinquent child support arrearage until paid, 5) Robertwould pay Jodi'sattorney $35.00 monthly toward the above mentioned attorney fees and costs until paid, 6) Jodi would be responsible for Shawn's health insurance, 7) if Robert's income increased,theabove paymentswould be renegotiated, 8)Robertmust provide Jodi with an annual sworn statement, beginning every January lst,hereafter, as to his total monthly income, and 9) if Robert or Jodi were to initiate a court action with regard to this agreement,theunsuccessfulparty would pay theprevailing party's attorney fees

# .InJune, 1987,Robert andJodi orally modified the Stipulation and Order. Robert and Jodi,however, disagree as to the terms of the oralmodification. In any event, Robert decreased hismonthly child support payment beginning in June, 1987, from $200.00 to $180.00, which resulted in total payments to Jodi of $215.00, $180.00 for child supportpayment and $35.00 toward the delinquent child supportpayment. Beginning January 1, 1987, to the present, Robert failed to provide Jodi with annual sworn statements of his monthly income, which Robert agreed toprovide by the terms of the Stipulation and Order. Throughthis sametime period, however, Robert consistently paid Jodi $215.00 a month, $180.00 for child support and $35.00 toward the pre-1987 child support delinquency. Two years later,

on June 15, 1989, Jodi filed a Petition for Income Deduction, a Motion to Increase Support, a Motion for Order to Show Cause, and

on November 3, 1989, a Motion for Attorney's Fees. On December 11, 1989, the District Court: 1) denied Jodi's Petition for Income Deduction because Jodi failed to prove by a preponderance of the evidence that Robert was three months in arrears in child support payments as specified in 3 40-5-304,MCA, and the 1989 amendments to 3 40-5-204, MCA, which provide for an exception to the three-month delinquency requirement for income deduction,was not applicablehere because the statute's effective date was January 1, 1990, 2) granted in part and denied in part JodiIsMotion to IncreaseChild Support, with the court taking into

### considerationRobert's children from a subsequent marriage, and 3) 

### granted inpart and denied inpart Jodi'smotion for attorney fees based upon her partial success of this court action. From these decisions,Jodi appeals.

1. 

### Did theDistrict Court err in denying appellant's Petition for Income Deduction? In her Petition for Income Deduction, Jodi requested that Robert be subject towithholding of his income regardinghis child support payments, based upon his still outstanding pre-1987 delinquentchild support obligationand thedisputed child support payments following the June, 1987 oral agreement, under § 

### 40-5- 301, et. seq., MCA. 

### Income deduction, however, is allowed only when payments are considered delinquent. Section 40-5-304, MCA, provides:

### Nonpayment of child support required by any order of a district court or by a similar order of a court of another jurisdiction becomes delinquent under this part when the amount owed is equal to 3 

### months of child support payments. The District Court found that Jodi did not prove that Robert was delinquent in an amount equal to three months of child support payments because of the intervening January 7, 1987 Stipulation and Order, which dealt with the pre-1987 delinquency and altered the 1981Agreement. Additionally, because the terms of the 1987 oral agreement are disputed and the agreed upon amount of Robert's child supportpayment isunclear,theDistrict Court held that Jodidid not prove by a preponderance of the evidence that Robert was delinquent in an amount equal to threemonths of child supportwith regard to any child support payments due after June, 1987. Jodi,however, argues that it does not matter whether Robert

was delinquent in an amount equal to threemonths of child support under the January 7, 1987 Stipulationand Order, and the 1987 oral agreement; it matters only that Robert was over three months delinquent under the 1981 Agreement. We disagree and hold that Robert is not delinquent in an amount equal to three months in his child supportobligation because of the interveningJanuary 7,1987 Stipulation and Order, aswell as the 1987 oral agreement,both of which altered the terms of the 1981Agreement. To hold otherwise would result in repeated litigation with regard tomodification of agreements, stipulated and approved by court order, and executed oral agreements. Jodi further argues that even if Robert is not determined to be three months delinquent in child support payments, Robert is still subject to income deduction because of the 1989 amendments to 5 40-4-204, MCA, which provide for automatic withholding of child support payments with regard to modifications of existing child support agreements. See 5 40-4-204(5), MCA. The District Court held that these 1989 amendments to 5 40- 4-204, MCA, were inapplicable to the facts of this case because the amendmentst effective date was January 1, 1990, nearly one month after the final decision in this matter. Jodi, however,argues that the 1989 amendments are applicable because their effective date was October 1, 1989. The District Court relied on opinion letters issued by the Department of Social and Rehabilitation Services and the Montana Legislative Council when it found that the effective date was January 1, 1990. These letters, which have no legal effect, state that the drafters of the 1989 amendments intended the effective date to be January 1, 1990, in order to allow the Child Support Enforcement Division time to plan and prepare the collection process. The opinion letters cite 5 40-5-411(1 (a)

## , MCA, to support theirposition,which provides thatJanuary 1, 1990,is the effective date with regard to the 1989 amendments. However, 9 40-5-411(1) (a) specifically excepts 5 40-4-204, MCA, from this effective date of January 1, 1990. Additionally, the enabling legislation of the 1989 amendments, Laws of Montana, Ch. 702, 5 32 (1989) provides: Applicability. [This act] applies to child support orders and modifications of child support orders issued after September 30, 1989. Therefore,we hold that the effectivedate for the 1989 amendments of 5 40-4-204, MCA, was October 1, 1989. Here, because the District Court's Memorandum and Order on Income Deduction, Child Support and Attorney's Fees was dated December 7, 1989 and filed December 11, 1989, the 1989 amendments of 5 40-4-204 are applicable, and Robert is subject to automatic income withholding.Robert further argues that if the 1989 amendment applies, he falls within the exception provided in 

### 5 40-4-204(5)(b)(i), MCA: (b) Income is not subject to automatic withholding if:

(i) the obligee or obligor demonstrates and the court finds that there is good cause not to require automatic income withholding

...a Robert asserts that since the 1987 oral agreement,he has consistently paid $180.00 monthly child support payments to Jodi, and this constitutes good cause not to require automatic withholding. We disagree. Because the amount agreed upon in the 1987 oral agreement isdisputedby theparties and theDistrict Courtdid not determine the amount, Robert's consistent monthly payment of $180.00 does not constitute good cause not to require automatic income withholding. We therefore reverse the District Court's Order Denying Income Deduction, and remand this case for proceedings consistent with this opinion.

2. Did theDistrictCourt err indetermining that retroactive child support increases shouldbe effectiveJanuary 1,1988,rather than January 1, 1987? In her Motion to Increase Child Support, Jodi's request included a retroactive increase in child support for 1987, based upon the Guidelines for Determining Child Support and Robert's increased income for those years. The District Court denied the retroactive increase in child support for 1987, finding that thefirst modification in child support should be considered as of January 1, 1988, because of the January 7, 1987 Stipulation and Order. IntheJanuary 7, 1987 Stipulationand Order, Robert agreed to increase his child support and included Robert's then current income based on his December, 1986 earnings. The District Court held that it was not a material breach of the January 7, 1987 Stipulation and Order for Robert to fail to report his monthly earnings on January 1, 1987, because he had just reported his earnings the previous month and had just renegotiated his child supportpayment based on those earnings. We agreewith theDistrictCourt's reasoningand hold that the court properly denied Jodi's request for a retroactive child support increase for 1987. There remains,however, an unresolved issue regarding the child support payments fromJune, 1987 through December, 1987. TheJune, 1987 oral agreementmodified the amount of child support, but Jodi and Robert disagree as to the agreed upon amount. The District Court failed to determine this amount. We therefore remand this case to the District Court to determine themodified amount of child supportunder the 1987 oral agreement, which will affect the child support payments from June, 1987 through December, 1987.

3. Did the District Court err in determining 1988 child support to be $235.00 per month and 1989 child support to be $255.00 per month?

### Jodi additionally requested retroactive increases in child support for 1988 and 1989 inherMotion to Increase Child Support, based on theGuidelines for Determining Child Support and Robert's income for these years. According to Jodi's calculations, Robert should have paid $337.84 a month in 1988, and $386.12 a month in 1989. The District Court modified Jodi's request, taking into consideration the fact that Robert had remarried following his divorce from Jodi and had two subsequent children to support. Based on this consideration, the District Court modified Jodi's request, and increased Robert's child support to $235.00 a month for 1988 and $255.00 a month for 1989. Considering subsequent childrenwhen determining an increase in child support contradicts Part 13 

### of the Guidelines for Determining Child Support (Guidelines): 

### when this guide is being used to reevaluate a prior child support order for modification, theposition is taken that the parent's prior child supportobligationshave absolute precedence over the needs of a new family. Jodi argues that the District Court abused its discretion when it did not apply Part 13 of the Guidelines and considered Robert's subsequent children when determining Robert's increase in child support. Section 40-4-204(3) (a) and (b)

## ,MCA, provides: (a) Whenever a court issues or modifies an order concerning child support, the court shall determine the child support obligation by applying the standards in this section and the uniform child support guidelines adopted by thedepartment of social and rehabilitation

### services pursuant to 40-5-209, unless the court finds by clear and convincing evidence that the application of the standards and guidelines isunjust to the child or to any of the parties or is inappropriate in that particular case.

(b) If the court does not apply these standards and guidelines to determine child support, it shall state its reasons for finding that the application of such standards and guidelines is unjust to the child or a 

### party or is inappropriate in that particular case. Hence, a court is not bound to apply the Guidelines if the court, by clear and convincing evidence, finds that the application of the Guidelines would have an unjust result to the parties or siblings. See also, InRe theMarriage ofMcFarland (Mont. 1989)

### , 783 

### P.2d 409, 412, 46 St.Rep. 2060, 2064. Here, the District Court found that wcommonsenseand equityndemanded the consideration of RobertIs two subsequent childrenwhomhemust also support. Clearly the District Court did not apply the Guidelines to avoid

anunjust result. Accordingly,wehold thattheDistrict Courtdid not abuse its discretion in considering Robert's subsequent children, when it modified Jodi's request for a retroactive increase in child support for 1987 and 1988.

4. Did the District Court err in awarding the appellant's attorney fees of $1,125.00? InJodi's Motion forAttorney's Fees, Jodi requested reasonable attorney fees in the sum of $3,953.22 with regard to this action. This sumwas later reduced to $3,620.72 due to errors in

### fee calculations. Both the 1981 Agreement and the January 7, 1987 Stipulation and Order provide that if either Jodi or Robert initiate proceedings with regard to the 1981Agreement or Stipulation and Order, the unsuccessfulparty will be responsible for the attorney fees of the successfulparty. Additionally, 5 

### 40-4-110, MCA, provides that the court: may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under chapters 1 

### and 4 of this title and for attorney's fees

TheDistrict Courtmodified Jodi'srequest for attorney fees,based upon JodiIs success inthismatter and 5 

### 40-4-110, MCA, and awarded her costs and expenses of $264.87 and attorney fees of $1,125.00. Jodi argues that the District Court abused its discretion when it modified her request for attorney fees. When reviewingadistrict courtIsawardof attorney fees, this Courtdetermineswhether substantial evidence supportsthedistrict court's findings. In Re the Marriage of Brown (1978)

## , 179 Mont. 417, 427, 587 P.2d 361, 367 (citationsomitted). Here, we hold that, based upon the 1981 Agreement and the 1987 Stipulation and Order, alongwith 5 

### 40-4-110,MCA, theDistrict Courtdid not abuse its discretion when it modified Jodi's award of attorney fees. 

### Affirmed in part, and reversed and remanded in part.

if-----'- 

### Chief Justice 

### 12We concur: