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. 

APPE AL FROM: District Court of the Thirteenth 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, 1990 
Chief Justice J. A. Turnage delivered the Opinion of the Court 

Jodi Rae Hall (now Jodi Rae Bangart) appeals the decision made 

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 in part, and reverse and remand in part. 

Appellant raises the following issues: 

1. Did the District Court err in denying appellant's Petition 

for Income Deduction? 

2. Did the District Court err in determining that retroactive 

child support increases should be 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 (hereinafter Agreement), which was incorporated into the 

Final Decree, granted Jodi sole custody of Shawn and granted Robert 

reasonable visitation rights to Shawn. Additionally, the Agreement 
called for Robert to pay Jodi monthly child support payments of 

$175.00, and specified that if either party initiated court 

proceedings concerning this Agreement, the unsuccessful party would 

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 to pay child support as specified in the Agreement. 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 in delinquent child 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) Robert would pay Jodi $35.00 

monthly toward the delinquent child support arrearage until paid, 

5) Robert would pay Jodi's attorney $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, the above payments would be renegotiated, 8) Robert must 

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, the unsuccessful party would pay the prevailing party's 

attorney fees . 
In June, 1987, Robert and Jodi orally modified the Stipulation 

and Order. Robert and Jodi, however, disagree as to the terms of 

the oral modification. In any event, Robert decreased his monthly 

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 support payment and $35.00 toward the delinquent 

child support payment. 

Beginning January 1, 1987, to the present, Robert failed to 

provide Jodi with annual sworn statements of his monthly income, 

which Robert agreed to provide by the terms of the Stipulation and 

Order. Through this same time 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 applicable here because the statute's effective 

date was January 1, 1990, 2) granted in part and denied in part 

Jodi Is Motion to Increase Child Support, with the court taking into 
consideration Robert's children from a subsequent marriage, and 3) 

granted in part and denied in part Jodi's motion for attorney fees 

based upon her partial success of this court action. From these 

decisions, Jodi appeals. 

1. Did the District Court err in denying appellant's Petition 

for Income Deduction? 

In her Petition for Income Deduction, Jodi requested that 

Robert be subject to withholding of his income regarding his child 

support payments, based upon his still outstanding pre-1987 

delinquent child support obligation and the disputed 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 1981 Agreement. Additionally, because the terms of the 1987 

oral agreement are disputed and the agreed upon amount of Robert's 

child support payment is unclear, the District Court held that Jodi 
did not prove by a preponderance of the evidence that Robert was 

delinquent in an amount equal to three months of child support with 

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 three months of child support 

under the January 7, 1987 Stipulation and 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 support obligation because of the intervening January 7, 1987 

Stipulation and Order, as well as the 1987 oral agreement, both of 

which altered the terms of the 1981 Agreement. To hold otherwise 

would result in repeated litigation with regard to modification 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 subj ect 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 their position, which provides that January 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 effective date 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 is disputed by the parties and the District Court did 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 the District Court err in determining that retroactive 

child support increases should be effective January 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 the 
first modification in child support should be considered as of 

January 1, 1988, because of the January 7, 1987 Stipulation and 

Order. In the January 7, 1987 Stipulation and 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 

support payment based on those earnings. 

We agree with the District Court's reasoning and 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 from June, 1987 through 

December, 1987. The June, 1987 oral agreement modified 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 

the modified amount of child support under 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 in her Motion to Increase Child Support, 

based on the Guidelines 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 

children when 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, 

the position is taken that the parent's prior 

child support obligations have 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 the department 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 is unjust 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, In Re the Marriage of McFarland (Mont. 1989) , 

783 P.2d 409, 412, 46 St.Rep. 2060, 2064. Here, the District 

Court found that wcommon sense and equityn demanded the consideration of Robert Is two subsequent children whom he must also support. 

Clearly the District Court did not apply the Guidelines to avoid 

an unjust result. Accordingly, we hold that the District Court did 

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? 

In Jodi's Motion for Attorney's Fees, Jodi requested reasonable attorney fees in the sum of $3,953.22 with regard to this 

action. This sum was 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 1981 Agreement or Stipulation and Order, the unsuccessful party will be responsible for the 

attorney fees of the successful party. 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 

The District Court modified Jodi's request for attorney fees, based 

upon Jodi Is success in this matter 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 reviewing a district court Is award of attorney fees, this 

Court determines whether substantial evidence supports the district 

court's findings. In Re the Marriage of Brown (1978) , 179 Mont. 

417, 427, 587 P.2d 361, 367 (citations omitted). Here, we hold 

that, based upon the 1981 Agreement and the 1987 Stipulation and 

Order, along with 5 40-4-110, MCA, the District Court did 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 

12 
We concur: