No. 87-351 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

IN RE THE MARRIAGE OF 

ROSEMARY HAGEMO , 

Petitioner and Respondent, 

AND 

GARY THEODORE HAGEMO, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Third Judicial District, 

In and for the County of Deer Lodge, 

The Honorable Robert Boyd, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Gough, Shanahan, Johnson & Waterman; Alan L. Joscelyn, 

Helena, Montana 

Wendell B. Dunn, Whitefish, Montana 

For Respondent: 

Knight, Dahood, McLean & Everett; David M. McLean, 

Anaconda, Montana 

Submitted on Briefs: Dec. 31, 1987 

Decided: February 9, 1988 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

The District Court of the Third Judicial District, Deer 

Lodge County, Montana, entered judgment on April 2, 1987 

further modifying a property settlement agreement, which the 

parties already had modified on June 24, 1983. Gary Hagemo 

(hereinafter husband) argues that the court's modification, 

which granted Rosemary Hagemo (hereinafter wife) maintenance 

of $250 per month and increased husband's child support 

obligation from $300 to $500 per month for each of two 

children, is improper since the couple had modified their 

agreement to do away with his maintenance obligation. He 

cites S 40-4-208, MCA, as requiring that wife petition for 

modification within two years. He further argues that the 

court abused its discretion by failing to provide appropriate 

findings of fact to bolster its conclusions of law and by 

accepting the wife's proposed findings and conclusions in 

toto and verbatim. 

We affirm the District Court. 

The couple's marriage was dissolved in February, 1983. 

By terms of the initial settlement agreement incorporated by 

the dissolution decree wife received custody of the parties' 

two children and $250 per month per child in support. She 

also was to receive one-half the proceeds from the sale of 

the family home plus an amount sufficient to resume her 

teacher's retirement. From the month after the family home 

sold until wife took a teaching job in the Anaconda school 

system, which the parties assumed would be by September, 

1984, she was to receive $500 per month in maintenance. 

Husband is a locomotive engineer for Burlington 

Northern. His gross earnings from tax year 1986 were 

$53,126.80. Wife had taught in the Anaconda schools for four 
years before this marriage. Her testimony was that had she 

been hired as a teacher she would have earned $22,000 for the 

1986-87 term. Because she has not been able to find a 

teaching job she works as a receptionist and earned 

$10,539.14 in 1986. 

In June, 1983, the family home was sold leaving the 

parties with net proceeds of $19,122.01. The parties 

modified the settlement agreement so that wife was to receive 

$20,000 in payment in lieu of periodic maintenance. Thus, 

she received the total proceeds from the home sale, and 

husband's monthly child-support obligation was raised from 

$500 to $600 eight months earlier than in the original 

schedule. The remaining $77.99 was to be paid as the parties 

determined. Again it appears that the parties envisioned 

wife would be teaching when the 1984 school year began. 

On January 26, 1987, more than three years after the 

parties had modified the agreement, wife petitioned the 

District Court to enter another modification. She said that 

changes in circumstances had occurred, namely that she had 

been unable to find a teaching job despite "diligent efforts" 

forcing her to take jobs paying substantially less. Her 

monthly expenses exceeded her monthly income and she sought 

maintenance. Meanwhile, she claimed, husband had bought lake 

property, motorcycles, all terrain vehicles, automobiles, and 

a share in an airplane and had taken vacations. This, she 

said, meant that the level of child support was inadequate. 

Husband's first argument is that the wife's petition 

for modification was not timely under B 40-4-208, MCA: 

(2) (a) Whenever the decree proposed for 

modification does not contain provisions 

relating to maintenance or support, 

modification . . . may only be made 

within 2 years of the date of the decree. 
(b) Whenever the decree proposed for 

modification contains provisions relating 

to maintenance or support, modification 

. . . may only be made: 

(i) upon a showing of changed 

circumstances so substantial and 

continuing as to make the terms 

unconscionable; . . . 

This argument is not persuasive since both the original 

agreement and the parties' modified agreement spoke to 

maintenance and both explicitly provided for certain levels 

of child support. Thus, they are not subject to the two-year 

limitations of $ 40-4-208(2) (a), MCA, but rather are subject 

to modification at any time upon a showing of substantial and 

continuing change of circumstance. Section 40-4-208 (2) (b) , 

MCA . Husband's argument is that as of January, 1987, he was 

not making monthly maintenance payments, thus they were 

forgiven, and cannot be resumed at this late date. However, 

the mere fact that a party is not currently paying 

maintenance does not necessarily preclude modification. See, 

Fraunhofer v. Price (1979), 182 Mont. 7, 19, 594 P.2d 324, 

331; In re the Marriage of Rush (Mont. 1985), 699 P.2d 65, 

66-7, 42 St.Rep. 581, 583. The fact that one party has 

satisfied his maintenance obligations to the other party must 

be considered by the District Court when it determines 

whether modification is justified since the amount and 

duration of maintenance payments are frequently bargained. 

Marriage of Rush, 699 P.2d at 67. 

Husband relies on In re the Marriage of Cooper (Mont. 

1985), 699 P.2d 1044, 42 St.Rep. 619, for his contention that 

wife was barred from seeking modification after the two 

years. That case does not control because there the District 

Court was asked by the wife to make a determination of the 
proper rate of maintenance. It held that wife was entitled 

to none, thus deleting the maintenance provision entirely. 

Marriage of Cooper, 699 P.2d at 1046. Here, the initial 

modification was by agreement of the parties. 

Whether the change in circumstances was so substantial 

and continuing as to be unconscionable is primarily a 

question for the District Court. This Court has not defined 

the term unconscionable as it is used in 540-4-208 (2) (b) (i) , 

MCA; its interpretation relies on case by case scrutiny of 

the underlying facts. In re the Marriage of McNeff (Mont. 

1983), 673 P.2d 473, 475, 40 St.Rep. 2050, 2052. The facts 

in this case are consistent with those factors set forth in 

55 40-4-203 and 40-4-204, MCA. Award of maintenance is 

proper if: (1) the party seeking maintenance lacks 

sufficient property to provide for his or her needs, and 

(2) the party is unable to support himself or herself 

through appropriate employment. In re the Marriage of Watson 

(Mont. 1987), 739 P.2d 951, 955, 44 St.Rep. 1167, 1171-72. 

The court found that the agreements made by the parties were 

based on the assumption that wife would have found a teaching 

job by September, 1984 but that she had been unsuccessful in 

job searches for four years straight. This, coupled with 

husband's higher earnings represents the required changes of 

circumstances. 

The District Court adopted the wife's proposed findings 

totally and completely to the exclusion of the husband's 

proposed findings. The record shows two sets of proposed 

findings with the notation on the wife's that it had been 

"adopted by the court" and signed by the judge. Husband 

claims there is insufficient evidence to justify adopting 

wife's findings and that this is an abuse of discretion. It 

is preferred that the District Court consider the proposed 

findings of both parties and then prepare its own findings. 
By doing so, the court demonstrates its conscientious concern 

and exercises its independent judgment, which provides this 

Court with a better basis for review. See, Tomaskie v. 

Tomaskie (Mont. 1981), 625 P.2d 536, 538-39, 38 St.Rep. 416, 

419; Marriage of Watson, Among the findings 

of fact the court adopted from the wife were: 

25. The Court notes that the husband is 

driving a 1986 Audi automobile, that he 

owns a 1973 boat, a 25% interest in an 

airplane, he possesses a T.V. satellite 

that requires a $1,000.00 annual payment; 

that he rents a hangar for his airplane, 

and is spending over $2,000.00 this year 

for overhaul on the airplane. 

26. The evidence presented at the trial 

demonstrates that the wife and two 

children of the marriage are attempting 

to meet the necessary obligations of life 

on approximately $1,210.00 per month. On 

the other hand, the husband has 

approximately $2,750.00 for meeting 

living expenses which include luxury 

items such as airplanes, boats, T.V. 

satellites and paying rent on a home that 

he is not living in. 

27. The wife testified at the trial that 

in order to meet the necessary living 

expenses for herself and the children she 

will require a payment of $250.00 per 

month alimony and will require that the 

child support for each child be raised 

from $300.00 per month to $500.00 per 

month . . . 

Among the conclusions of law adopted were: 

3. There was a showing of change of 

circumstances that was substantial and 

continuing so as to make the terms of the 

original decree of divorce and property 

settlement agreements unconscionable. 

4. The standard of living of the 

children has been substantially reduced 
below that which would have existed had 

this marriage continued but that the 

standard of living of the husband has not 

diminished to a like degree. 

We have developed a test for determining the validty of 

findings adopted from one party: 

[W] here, as here, findings and 

conclusions are sufficiently 

comprehensive and pertinent to the issues 

to provide a basis for decision, and are 

supported by the evidence, they will not 

be overturned simply because the court 

relied upon proposed findings and 

conclusions submitted by counsel. 

Kowis v. Kowis (1983), 202 Mont. 371, 379, 658 P.2d 1084, 

1088. Error occurs when the court relies on one party's 

proposed findings instead of its own consideration of the 

facts and exercise of its independent judgment. In re the 

Marriage of Alt (Mont. 1985), 7'08 P.2d 258, 262, 42 St.Rep. 

1621, 1626. The District Court heard the testimony of both 

parties and examined the exhibits placed into evidence. 

Because there is sufficient evidence within the record to 

support the wife's findings and conclusions, the court did 

not abuse its discretion in adopting them. In re the 

Marriage of Hamill (Mont. 1987), 732 P.2d 403, 408, 44 

St.Rep. 220, 225. Therefore, we will not reverse. 

We note lastly that the husband appeals the court's 

determination that he was technically in contempt of court 

for defying a District Court order that purportedly requires 

him not to share the premises with female companions 

overnight when he has custody of the children. We cannot 

review this question, however, since the record fails to 

include the text of this order. Rule 9(b), M.R.App.P. We 

would note, however, that providing there is such an order, 

husband has not been prejudiced since the court, in its 
discretion, did not punish him for this contempt, but merely 

issued a warning. 

Affirmed . 

We concur: _I' 

ief Justibe