No. 87-353 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

IN RE THE MARRIAGE OF 

KAYLENE DIANE FORSMAM, 

Petitioner and Appellant, 

and 

MARTIN WILLIAM FORSMAN, 

Respondent and Respondent. 

APPEAL FROM: The District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable James R. Wheelis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Fred Thornson, Missoula, Montana 

For Respondent: 

Geiszler, Taylor, Newcomer & McClain; Kerry N. 

Newcomer, Missoula, Montana 

Submitted on Briefs: Oct. 16, 1987 

Decided: December 18, 1987 

~iled~~~ 1 5 1987 

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

Court. 

This is an appeal from the District Court of the Fourth 

Judicial District, Missoula County, Montana, requesting a 

reduction of support obligation from a decree of dissolution 

granted December 6, 1982, by the Honorable Jack L. Green, 

District Judge. The request for temporary order reducing 

support was filed on February 27, 1987. The temporary order 

came before the Honorable James B. Wheelis on April 24, 1987. 

Judge Wheelis entered his findings of facts and conclusions 

of law and amended the original decree on June 1, 1987, 

granting a temporarv reduction. Appellant now appeals the 

District Court's reduction in child support. We reverse. 

Four issues are presented for our review: 

(1) Did the District Court commit reversible error 

when it modified child support payments temporarily for the 

months of March and April, 1987? 

(2) Did the District Court commit reversible error 

when it modified child support for the months, May, June, 

July, August and September, 1987? 

(3) Did the District Court commit reversible error 

when it excluded the inflation clause and modified the 

medical care obligation? 

(4) Did the District Court commit reversible error 

when it refused to award attorney's fees and costs to the 

appellant. 

At the time of the dissolution in 1982, the parties had 

been married for twelve years. From that marriage, two 

children were born: Jillian, now age fifteen and Christian, 

now age twelve. The original decree of dissolution was 

issued by Judge Jack L. Green in December of 1982. According 

to the decree appellant mother (mother) was to receive $250 
per month per child for support of the parties' two children. 

These payments included a yearly cost of living increase 

which began in November of 1983. Child support was to be paid 

prior to and throughout the four years of each child's 

college education. ~espondent father (father) was also to 

maintain medical and dental insurance on the children and a 

life insurance policy on himself with the children as 

beneficiaries. 

Prior to the dissolution, the family owned a home 

valued at approximately $56,000. For 1981, the last full 

year prior to the dissolution, the father had an annual 

adjusted gross income of $23,019, and for 1982 his adjusted 

gross income was $25,003. At that time father was an 

employee of a local department store. The mother was 

employed on an occasional basis, working five hours per week, 

but with the majority of her time spent in caring for the 

home and the parties' two children. 

Following the dissolution, father changed jobs and 

started working as a travelling salesman for a major clothing 

manufacturer. His sales route covers the states Montana, 

northern Idaho and eastern Washington and his salary is on 

commission basis. He has now remarried and currently lives 

with his new wife in Missoula, Montana, in a home valued at 

over $50,000. 

It is father's contention that his gross income has 

declined from 1985 levels by approximately forty percent, 

blaming the decline on several factors that influence retail 

clothing sales. 

Following the dissolution, mother moved with the 

children to Butte, Montana, where, in June, 1985, she 

purchased a home valued at $29,000. She has obtained 

employment as a medical librarian working twenty hours a week 

while continuing to care for herself and the two children 
with additional care required for her youngest child, who is 

emotionally disturbed. Mother has sought full-time 

employment, however, the economically depressed condition of 

the city of Butte has affected her full-time employability. 

Mother's annual adjusted gross income in 1986 was 

$6,673. In accordance-with the decree, mother was entitled 

in 1986, to $570 per month in child support. Mother's annual 

income therefore was $13,513. The record reveals that annual 

expenses for mother and the two children were approximately 

$14,196. House payments and living expenses were met with 

mother's income, the $570 monthly support payments, money 

remaining from mother's share of the sale of the parties' 

former home and interest accrued from her savings account. 

This money has been depleted as mother used that money to 

meet monthly expenses, especially when father paid only a 

total of $100 per month in child support during the months of 

February, March and April of 1987. 

For the purpose of our discussion, issues (1) and (2), 

whether the District Court erred when it modified child 

support payments temporarily for the months of March and 

April and modified support payments for the months of May, 

June, July, August and September, 1987, will be discussed 

together. 

Our statute applicable to modification for child 

support is B 40-4-208, MCA. Subsection (2) (b) of S 40-4-208, 

MCA, controls in this case and states in part: 

(2) (b) Whenever the decree proposed for 

modification contains provisions relating 

to maintenance or support, modification 

under subsection (I) may only be made: 

(i) upon a showing of changed 

circumstances so substantial - and 

continuing as to make the terms 

unconscionable, . . . (Emphasis added.) 
Our statute provides that the District Court must 

determine that circumstances since the entering of the 

original decree have changed so substantially and with such 

continuity that to continue with the original terms would be 

unconscionable. Here there is no question that because of 

the economic situation, there has been a slowdown in clothing 

sales. However, that slowdown may well be only a temporary 

situation and it does not suffice to substantially change 

support for the two children. Additionally, the two children 

are now into their teenage years. This Court has recognized 

that children in the age bracket 12-17 generate greater 

expenditures for the parent than children in the age bracket 

0-11. Order Adopting Guidelines For Determining Child 

Support (Mont. 1987), 44 St.Rep. 828, 836. 

Section 40-4-208, MCA, is intended to allow 

modification of the original terms only when the newly 

modified terms are "substantial and continuing." The statute 

by its own terms precludes modification to cure a temporary 

change in circumstances. The father's circumstances have not 

changed sufficiently that he cannot pay child support as 

ordered by the original decree. 

Mother and the children's circumstances have severely 

worsened. As noted, mother has depleted all of her resources 

that she had and is able to work only twenty hours per week 

because of the economic condition in Butte and to enable her 

to spend the necessary time with her emotionally disturbed 

child. In addition, her failure to receive the full amount 

of child support provided by the original decree has 

endangered her ability to continue making payments on their 

home. Mother purchased the home for herself and the two 

children in good faith based upon the settlement of the 

dissolution. Mother fears the loss of the family home would 

have a devastating effect on the youngest child's stability. 
Father's adjusted gross income in 1982 was $25,003; in 

1985 it was $30,249; and in 1986, it was $27,000. In his 

argument father contends that he has unavoidable business 

expenses with his clothing sales job and these expenses 

should be deducted from his gross income. Father further 

contends that from his gross income minus business expenses, 

his "living expenses" should be deducted. FJe note that 

several deducted business expenses have also been deducted as 

living expenses. It appears that father's changed 

circumstances are not substantial and continuing and the 

District Court erred in granting a temporary modifi-cation 

under S 40-4-208 (2) (b) , MCA. 

Issue three concerns whether the court erred in 

modifying the terms of the child support excluding the 

inflation provision and reducing father's obligation to pay 

total medical insurance costs. We find clear error here for 

there was no prayer for relief for the exclusion of the 

inflation provision nor for a reduction of his obligation to 

pay for health care. Here the mother had no opportunity to 

hear arguments in favor of any modification in respect to 

these matters. The court also erred in taking the father's 

proposed findings of fact and conclusions of law, which 

contain said provisions, over the mother's objections and 

adding them to the findings of the court. See, Marriage of 

Baer (1982), 199 Mont. 21, 647 P.2d 835. We find the 

District Court abused its discretion when it modified both 

the inflation and the health provisions of the decree without 

providing ample opportunity for the mother to argue against 

such modification. 

Lastly we discuss the District Court's refusal to award 

attorney's fees and costs to mother. See 5 40-4-110, MCA. 

This Court has previously held that this statute generally 

holds that a showing of necessity is a condition precedent to 
the award of attorney's fees. Carr v. Carr (Mont. 1983), 667 

P.2d 425, 40 St.Rep. 1263. In that case we held that due to 

the husband's substantially greater salary and other factors, 

that when considered with the wife's economic position, the 

court did not abuse its discretion in awarding attorney's 

fees to the wife. 

In this case there is no question of the mother's need. 

The father has a considerably higher income and mother is 

charged with the care of their two children. Clearly 

mother's standard of living has been lowered considerably 

since the dissolution. In addition, the father is the one 

that moved for the modification decree bringing the mother 

into the court for litigation. The father is in a much 

better economic situation than the mother, this fact is a 

compelling reason to award mother attorney's fees. Jn 

addition this Court has also held that when the trial court 

refuses to award attorney's fees, the underlying reason must 

be indicated in the findings of fact. Hammeren v. Hammeren 

11982), 201 Mont. 443, 663 P.2d 1152. This order of the 

District Court does not substantiate its reasoning for not 

awarding costs and attorney's fees. In fact, attorney's fees 

are not mentioned. 

Here in the Findings of Fact, Conclusions of Law and 

Order the District Court modified the payments for a period 

of eight months. The court further noted that the mother or 

father may schedule further review for chi16 support after 

September, 1, 1987. In the event no review was scheduled by 

mother, the order would remain in effect. This is an 

interesting finding by the District Court because in this 

action the court denied the mother attorney's fees and yet in 

another finding proposes that she can apply in September, 

1987, for further "review." This "review" would again call 

for attorney's fees which she cannot afford in the first 
place. The District Court erred by refusing to award 

attorney's fees and costs to the appellant mother. 

We reverse and direct the District Court to restore 

full amount of child support award, $570, with regular 

increases for inflation and further restore father's 

obligation to pay total medical insurance costs as ordered in 

the original December 6, 1982, decree of dissolution. 

Furthermore, the District Court is directed to provide 

reasonable attorney's fees to the 

We Concur: -4 U