NO. 87-503 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

IN RE THE SUPPORT OF 

K. F. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Joel Roth, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Clary & Clary; Thomas Clary, Great Falls, Montana 

For Respondent: 

Baiz & Olson; Kenneth R. Olson, Great Falls, Montana 

Submitted on Briefs: May 12, 1988 

Decided: June 14, 1988 

~i "JUN 1 4 198% led :- 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

The mother appeals an order of the District Court for 

the Eighth Judicial District, Cascade County. The court 

denied the mother's requests for increased child support and 

for income tax information from the father's farm corporation. It ordered her to pay the attorney fees incurred by 

the father. We affirm. 

The issues are: 

1. Did the District Court err in refusing to order the 

father to produce the income tax returns of his farm 

corporation? 

2. Did the court err in denying the mother's motions 

filed after the denial of her request to require the father 

to produce tax returns for the farm corporation? 

3. Did the court err in denying the petition to increase child support? 

4. Did the court err in awarding the father his attorney fees? 

The marriage of the mother and father was dissolved in 

1978. The mother was granted custody of their son, then 4 

years old. The father was ordered to pa17 child support in 

the amount of $200 per month. 

In 1981, the father signed a relinquishment and consent 

to adoption so that the son could be adopted by the mother's 

second husband. Assuming that the adoption had taken place, 

the father paid no child support and had no relationship with 

the son for approximately five years. However, the mother's 

second husband never adopted the boy, and the mother's second 

marriage ended. The mother's third husband is her attorney 

in this action. 

The father is remarried and has three children by that 

mararj-age. He is a farmer. In January 1985, he and his 
brother incorporated their farm. The father receives a 

salary as farm manager, along with nontaxable benefits from 

the corporation. 

In February 1986, the mother filed a petition for enforcement of prior child support and for increased child 

support. She requested payment of back child support to the 

date of the father's relinquishment. The parents, both 

represented by counsel, subsequently entered a stipulation 

whereby the father would pay $1,000 per year for 5 years as 

full satisfaction of back support owing, plus $125 per month 

for current support, plus a $300, $600, or $900 lump sum each 

January, with the amount of the lump sum depending on the 

father's income for the previous year. The stipulation also 

reestablished a visitation schedule for father and son. 

In late 1986 and early 1987, the mother began a series 

of actions in which she tried to obtain the tax returns from 

the father's farm corporation. She argued that these were 

relevant to the determination of the amount of child support 

payable under the stipulation. The District Court disagreed, 

ruling in May 1987 that the stipulation bases the lump sum 

child support upon the father's income as reportable on his 

personal tax returns. Those returns had been provided to the 

mother. The mother filed a motion to reconsider, to set 

aside the agreement, or to determine child support. The 

court denied the motion and reaffirmed its prior ruling. 

In September 1987, the mother petitioned for increased 

child support. She also served interrogatories seeking 

income tax information for the farm corporation. The father 

refused to provide that information. A hearing was held at 

which the father asked that the petition be dismissed because 

it did not satisfy the provisions of S 40-4-208, MCA, governing modification of child support. The court denied the 
mother's claim for relief and ordered her to pay $297.09 for 

the father's attorney fees. The mother appeals. 

I 

Did the District Court err in refusing to order the 

father to produce the income tax returns of his farm 

corporation? 

The stipulation entered by the mother and father 

provided: 

MICHAEL further agrees that, for purposes of 

determining whether the additional support is to be 

paid, the income under all farming operations in 

which he is engaged, regardless of whether it is 

reported under his Social Security number or his 

spouse's Social Security number, together with all 

income he receives from other sources, reportable 

under his Social Security number, shall be used to 

determine the amount of income attributed to him in 

any given taxable year. 

In its May 1987 order, the District Court interpreted 

the above language to include all income reportable under the 

father's social security number and all farm income reported 

under his wife's social security number. The court ruled 

that the above language did not include nontaxable benefits 

from the farm corporation to the father and his family. We 

conclude that the court's ruling is supported by the plain 

language of the stipulation. 

The court then found in its November 1987 order, based 

on the previous ruling, that the father had no obligation 

under the stipulation to provide the mother with corporate 

tax returns. The mother argues that $ 40-4-204, MCA, requires the court to consider all relevant factors in setting 

the reasonable and necessary amount of support, and that 

nothing could be more relevant than the father's income from 

the corporation. However, as the District Court concluded, 

an action for modification of child support is governed by 
S40-4-208, MCA. The standard for modification of child 

support under that statute is a change in circumstances so 

substantial as to make the present terms of support unconscionable. The mother, aside from pleading under the wrong 

statute, has made no allegations of substantial changes in 

her own financial circumstances or those of the father. She 

presented no evidence of such a substantial change of circumstances. We conclude that in this situation it was not error 

for the court to deny the request for production. 

I1 

Did the court err in denying the mother's motions filed 

after the denial of her request to require the father to 

produce tax returns for the farm corporation? 

After the District Court entered its May 1987 order 

denying the mother's request for an order for production, the 

mother filed three motions. One asked the court to reconsider its ruling. The second asked the court to set aside the 

stipulation for lack of consideration. The third motion 

asked the court to hold an evidentiary hearing for the purpose of setting the amount of child support. The father did 

not file responses to the motions. After hearing the arguments of counsel for both sides, the court denied all three 

motions without stating its reasons. The mother argues that 

she is entitled to know the court's reasons for denying her 

motions. 

As the father points out, the three motions were reiterations of the arguments made prior to the order denying the 

request for production. When post-trial motions are based on 

questions about the court's discretionary rulings and no new 

facts are raised, it is not required that the opposing party 

file objections in order for the court to affirm its ruling. 

Matter of Adoption of S.E. (Mont. 1988), - P.2d - , 45 
St.Rep. 843. We hold that the denial of the mother's motions 

was not error. 

Did the court err in denying the petition to increase 

child support? 

In September 1987, the mother filed her petition to 

increase child support, citing S 40-4-204, MCA. A hearing 

was held, at which the mother's counsel argued that $125 per 

month is not enough support for a 14 year old boy. The 

mother argues on appeal that the court should have held an 

evidentiary hearing on her petition and should have found 

that the $125 per month under the stipulation is 

unconscionable. 

Although she had the opportunity at the hearing on her 

petition, the mother produced no evidence demonstrating 

changed circumstances between the time the stipulation was 

signed and the time her petition was filed. Given the absence of proper pleadings, and the absence of any allegation 

or proof of changed circumstances as required by 5 40-4-208, 

MCA, we hold that the court did not err in denying the petition to increase child support. 

Did the court err in awarding the father his attorney 

fees? 

The court's finding on attorney fees was: 

Petitioner's motion is the third attempt in 

six months to extract more money from respondent 

than that to which she is entitled under the agreement she freely entered into on June 13, 1986. It 

is noted that petitioner's attorney is, also, her 

husband. While the court does not speculate as to 

the issue of petitioner's attorney fees, the court 

does acknowledge that respondent is forced to 

retain counsel and incur costs each time this 

matter is brought before the court. On previous 
occasions the court has refused to order petitioner 

to pay respondent's attorney fees and costs. Due 

to the history of this case, the insufficiency of 

petitioner's pleadings and proof and the need for 

finality in judgments in this type action, the 

Court finds that it is appropriate to order petitioner to pay respondent's reasonable attorney's 

fees and costs. 

The mother argues that the award of attorney fees to the 

father is unsupported by any basis in law. However, a district court has the equitable power to order attorney fees 

when justice so requires. Holmstrom Land Co. v. Hunter 

(1979), 182 Mont. 43, 48, 595 P.2d 360, 363. We conclude 

that this is such a case. The mother has made repetitive 

claims on issues already decided by the court. We hold that 

the District Court did not abuse its discretion. 

Affirmed.