No. 83-517 IN THE SUP-ME COURTOF THE STATE OF MONTANA 1984

IN RE THEMARRIAGE OF EARLENE D. WEST, Petitioner and Appellant, and ARTHUR C. WEST, Respondent and Respondent.

APPEAL FROM: District Court of the Eighth Judicial District, Inand for the County of Cascade, The Honorable H. William Coder,Judgepresiding.
COUNSELOF RECORD:

ForAppellant: Alexander & Baucus;Gary M. Zadick, Great Falls, Montana For Respondent: Marra,Wenz,Johnson & Hopkins, Great Falls, Montana

Submitted on Briefs: July 27, 1984 Decided: September 24, 1984

Filed: 

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ClerkMr. Justice Daniel J. Shea delivered the Opinion of the Court.

Thepetitioner andmother,Earlene D. West, appeals from
a judgment of the Cascade County District Court denying her petition formodification of an existing child support order and request for attorney fees. This is the second time this
case comes to us on appeal-. We remanded this case once before for the trial court to take additional evidence and make additional findings. West v. West (Mont. 1983), 661 P.2d 1289, 40 St.Rep. 573. However,we still cannotproperly review this case on themeritsbecause neither the parties in their evidencenor the court in its findingsand conclusions, properly focused on the financial needs of the children, as required. Duffey v. Duffey (Mont. 1981), 631 P.2d 697, 38 St.Rep. 1105. The mother's petition for modification of the existing child support order,made pursuant to section 40-4-208,MCA, requires her to prove a change in circumstances so substantial and continuing as to make the existing child support order unconscionable. In determining whether such a changehasbeen proved, the lawrequires consideration of the financialneeds and resources of the children aswell as the financial needs and resources of the mother and father. Duffey 

## ,supra. However,the financialneeds of the children
were virtually ignored. The evidence reveals that the father, now remarried,has sufficient financial resources to meet his own needs and pay
a greater child support obligation as well. Although the father claimed, and the trial court found, that the father does nothave enough cash topay increased child support,theevidence demonstrates otherwise. Between February 19, 1982, and June 20, 1983, the fatherhad sufficient cash to retire $42,500 worth of principal on his sole significant debt of $50,000. During that time period the father also had sufficient cash to purchase snowmobilesat a cost of $3,000, to replace the siding and windows on his current home at a cost of approximately $5,000,topurchase three pictures at a cost of $1,000,and topurchase a gun and reloading equipment at a cost of $300. The evidence also shows that the father's income for the year 1982 was $89,907. Whi1.e the father's acquisition of equity in various building projects may be partially responsible for this substantial income, it is clear from the large cash expenditures that the father has the financial capability to pay an increased child support obligation. On the other hand, the financial needs and resources of the mother, indicate that her ability to support herself and her minor children has declined. Since the entry of the existing child support order in 1979, the uncontroverted evidence demonstrates that the cost of living has increased for themother and herminor children,particularly for items such as utilities, food, and the cost of operating an automobile. Since that time, the mother has also lost the social security disability payments which she had been receiving for the previous five years, and has had to supplementher income with public housing assistance, energy assistance and food stamps. The record also shows a monthly deficiency of $396 between the mother's monthly income and her monthly expenses. Themother is finding it increasingly difficult to meet her own support needs, let alone those of herminor children.The father argues that the mother's deteriorating financial position was solely caused by several voluntary changes made by themother. These changes includemoving her family from an unmaintained house to a maintained apartment which is more expensive, and allowing the parties' adult son to 1ive in her home. Although the father attacks the mother's judgment and financialmamagement skills, he appears to 

### he content to leave the major share of the parenting to the mother. Itmakes no sense for the fa-therto attack the mother's capabilities to manage her home and finances, and yet to neither move for a change in custody nor to suggest any solutions to a.lleviatethe detrimental effects upon his children if they are suffering from themother's inabilityto manage the family's finances. Finally, the trial court must consider the financial
resources 

### - a.nd needs of the children. The court considered their resources and found that the children have no assets,
no independent sources of income and no other means by which to provide for their own sustenance. However, the trial court made no findings on the needs of the children. Unfortunately, the only evidence on their needs is an uncontroverted statement by the mother that as the children have gotten older, their needs and wants have increased. Nonetheless, the trial.court shouldnothave disregarded this statement, as it did establish the mother's threshhold evidentiary burden of proving that the needs of the children have increased. At this point if the partiesdid notpresent further evidence, the tri-a1court nonetheless should have inquired further into the children's needs. Based on the evidence obtained, the trial court should have entered findings and conclusions on the financial needs of thechildren, a d-eterminationthat is essentialwhen considering
apetition for modification of child support. The financial disparity between the financial needs and resources of the mother and father, occurring since the entry of the existing child support order in 1979, surely proves the inability of themother to provide for the supportof the childrenand the ability of the father to do so. However,an order for increased child support cannot be entered without first determining whether the current support payments are adequately satisfying the financial needs of the children. We vacate the order of the DistrictCourt and remand for
an evidentiary hearing to determine whether the financial needs of the children cannot be met by the current level of support payments. Based on this evidence, the Court shall enter proper findings.

We Concur:

Mr. Chief ~udktice Frank I. Haswell dissents and will file a written dissent later.