No. 83-517 

IN THE SUP-ME COURT OF THE STATE OF MONTANA 

1984 

IN RE THE MARRIAGE OF 

EARLENE D. WEST, 

Petitioner and Appellant, 

and 

ARTHUR C. WEST, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable H. William Coder, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

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: stp ,: 

Clerk 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

The petitioner and mother, Earlene D. West, appeals from 

a judgment of the Cascade County District Court denying her 

petition for modification 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 cannot properly 

review this case on the merits because neither the parties in 

their evidence nor the court in its findings and 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 

change has been proved, the law requires consideration of the 

financial needs and resources of the children as well as the 

financial needs and resources of the mother and father. 

Duffey , supra. However, the financial needs 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 not have enough cash to pay increased child support, the 
evidence demonstrates otherwise. Between February 19, 1982, 

and June 20, 1983, the father had 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 snowmobiles at a cost of $3,000, 

to replace the siding and windows on his current home at a 

cost of approximately $5,000, to purchase three pictures at a 

cost of $1,000, and to purchase 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 the mother and her minor 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 

supplement her 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. The mother is finding it increasingly 

difficult to meet her own support needs, let alone those of 

her minor children. 
The father argues that the mother's deteriorating 

financial position was solely caused by several voluntary 

changes made by the mother. These changes include moving her 

family from an unmaintained house to a maintained apartment 

which is more expensive, and allowing the parties' adult son 

to 1 ive in her home. Although the father attacks the 

mother's judgment and financial mamagement skills, he appears 

to he content to leave the major share of the parenting to 

the mother. It makes no sense for the fa-ther to 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.lleviate the detrimental effects upon his 

children if they are suffering from the mother's inability to 

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 should not have 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 parties did not present 

further evidence, the tri-a1 court 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 the 
children, a d-etermination that is essential when considering 

a petition 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 the mother to provide for the support of the 

children and 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 District Court 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.