No. 14556 IN THE SUPRE-MECOURT OF THE STATE OF MONTANA 1980

JANICE LYNN GALL, Plaintiff and Appellant,

VS. STEPHEN THOMAS GALL,- Defendant and Respondent.

Appeal from: District Court of the Fifth Judicial District, Honorable Frank E.Blair, Judge presiding. Counsel of Record: For Appellant: Daniel R. Sweeney argued, Butte, Montana For Respondent: Berg, Angel, Andriolo and Morgan, Bozeman,Montana Gig Tollefsen argued, Bozeman,Montana



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# - Filed: Submitted: January 18, 1980 Decided: 

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## 2- I$;@Mr. Justice Daniel J. Shea delivered the Opinion of the Court.
The wife appeals from an order of the Beaverhead County District Courtmodifying the visitation provisions and child supportprovisions of the original dissolution decree. Thewife contends that the court had no jurisdiction to change visitation rights because the husband failed to file affidavits in support of his petition. Furthermore, she contends that the trial court abused its discretion in reducing child supportpayments from $150 to $100per month. We conclude that the trial courtproperly modified the child visitation rights. On the other hand,we determine that the trial court did not enter appropriate findings

on the issue of child support and also that it failed to comply with the standard set forth in section 40-4-208, MCA. We thereforemust remand the child support issue to the DistrictCourt. On May 15, 1978, the husband filed a petition to modify the original dissolution decree. He sought a change in visitation privileges, and also a reduction of monthly child support payments from $150 to $75. On June 6, 1978 the wife filed a motion to dismiss contending that the husband had failed to file supporting affidavits and had improperly served the petition to modify in the form of

a summons. On August 22, 1978,a hearing was held and the trial court denied thewife's motion to dismiss but entered

no order. On September 5, 1978, the trial court simply filed a memorandum denying the request, and filed no order. The wife appealed from this memorandum and we dismissed without prejudice for the reason that no final order had been entered. Later, the trial court entered findingsof -2-fact and conclusions of law and adopted the memorandum by reference. On July 17, 1979, the trial court entered

an order which incorporated those findings and conclusions. By its order the trial courtmodified the original dissolution decree by reducing the child support payments from $150 to $100per month and requiring the husband to pay an additional $25 eachmonth until all of the delinquent child supportpayments were paid in full. The trial court also restricted the husband's visitation privileges by allowing the husband to take the child to his parents' ranch

once every twomonths. This appeal followed. Thewife contends now that in the absence of supporting affidavits, the trial court had no jurisdiction to entertain a motion tomodify the child custodyprovisions. Furthermore, she contends that the trial court should not have reduced the child supportpayments. It is clear,however, that the trial court had jurisdiction tomodify visitation. Section 40-4-220,MCA, upon which thewife relies,requires that appropriate supporting affidavits be filed when a change of custody is sought. See Olson v. Olson (1978),175Mont. 444, 574 P.2d 1004. Thus thewife's reliance on Olson is misplaced. Here, the husband sought a change of visitation rights and section 40-4-217,MCA, is controlling. This statute does not require supporting affidavits. See Lee

### v. Gebhardt (19771, 173Mont. 305, 567 P.2d 466; Solie v. Solie (1977),172 Mont. 132, 561 P.2d 443. Under section 40-4-217(3), MCA, the trial courtmay modify visitation rights whenevermodificationwould serve the best interestof the child. Accordingly, it was not error for the trial court to modify the visitation rights of the husband. -3-Neither thewife, in contending that the child supportpayments should not have been reduced, nor the husband in contending that they were properly reduced,have cited the controlling statute to this Court, section 40-4- 208,MCA. Under this statute, the trial courtmay modify child support payments only upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable, or upon written consent of the parties. See Gianotti 

### v. McCracken (1977),174Mont. 209, 569 P.2d 929. Since the parties did not consent to the child support modification, the essential requirement is that there be

an evidentiary basis to determine that itwould be unconscionable to continue the child supportpayments presently in effect. Here, there are virtually no findings at all on this issue, let alone a determination that enforcement of the present child supportpayments would be unconscionable. The only findingsare to the effect that the circumstances changed by reason of the wife's remarriage to anotherperson. Even though the record is repletewith evidence as to the financial condition of each party, the trial court made no specific findings as to the wife's increased ability to support the child or the husband's decreased ability to pay the $150per month for child support. In the absence of findingswe cannot review the propriety of the trial court's decision. It appears that the trial court's decision turned on the conclusion that thewife had since remarried and that although shewas having difficulties in her newmarriage, nonetheless the new husband had an obligation to provide her with a home. The trial court simply assumed that the wife's marital problems would be resolved. But the conditions -4-and circumstances of the parties must be examined and determined at the time ofthemodification hearing, and may not be based upon mere speculative future conditions

or possible conditions. See Scottv. Scott (1979),121 Ariz. 492, 591 P.2d 980; In Re Marriage of Cobb (1977), 68Cal.App.3d 855, 137 Cal.Rptr. 670. Here the trial court's findings as to thewife's marital status and relationship with her second husband are improperlybased upon assumptions and speculation. Furthermore, they fail to satisfy the standard contained in section 40-4-208,MCA, that the changed circumstancesmust be so substantial and continuing as to make the terms of the original decree unconscionable. The order changing the visitation rights is upheld. But without the required findings on the issue of modificationof child support,we decline to rule on this issue. Because circumstancesmay have changed since this appealwas undertaken, this cause is remanded for another evidentiary hearing and the trial court is further instructed to enter the required findings of fact and conclusions of law in support of whatever judgment it reaches. This cause is remanded to the DistrictCourt. 'I 

# - - & -,---------------d-------- We Concur: Justice