No. 14556 

IN THE SUPRE-ME COURT 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: AFR 2- I$;@ 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

The wife appeals from an order of the Beaverhead 

County District Court modifying the visitation provisions 

and child support provisions of the original dissolution 

decree. 

The wife 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 support payments from $150 to $100 per 

month. We conclude that the trial court properly 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 therefore must remand the child support issue to 

the District Court. 

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 the wife'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 findings of 

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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 court modified the original 

dissolution decree by reducing the child support payments 

from $150 to $100 per month and requiring the husband to 

pay an additional $25 each month until all of the delinquent 

child support payments 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 two months. This appeal followed. 

The wife contends now that in the absence of supporting 

affidavits, the trial court had no jurisdiction to entertain a motion to modify the child custody provisions. 

Furthermore, she contends that the trial court should not 

have reduced the child support payments. 

It is clear, however, that the trial court had jurisdiction to modify visitation. Section 40-4-220, MCA, upon 

which the wife relies, requires that appropriate supporting 

affidavits be filed when a change of custody is sought. 

See Olson v. Olson (1978), 175 Mont. 444, 574 P.2d 1004. 

Thus the wife'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, 

173 Mont. 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 court may modify visitation rights whenever modification would serve the best interest of the child. 

Accordingly, it was not error for the trial court to 

modify the visitation rights of the husband. 

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Neither the wife, in contending that the child 

support payments 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 court may 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), 174 Mont. 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 it would be unconscionable to continue the child support payments presently 

in effect. 

Here, there are virtually no findings at all on this 

issue, let alone a determination that enforcement of the 

present child support payments would be unconscionable. 

The only findings are to the effect that the circumstances 

changed by reason of the wife's remarriage to another person. 

Even though the record is replete with 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 $150 per month for child support. In the absence of 

findings we cannot review the propriety of the trial court's 

decision. 

It appears that the trial court's decision turned on 

the conclusion that the wife had since remarried and that 

although she was having difficulties in her new marriage, 

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 ofthe modification hearing, and 

may not be based upon mere speculative future conditions 

or possible conditions. See Scott v. Scott (1979), 121 

Ariz. 492, 591 P.2d 980; In Re Marriage of Cobb (1977), 

68 Cal.App.3d 855, 137 Cal.Rptr. 670. Here the trial 

court's findings as to the wife's marital status and 

relationship with her second husband are improperly based 

upon assumptions and speculation. Furthermore, they fail 

to satisfy the standard contained in section 40-4-208, MCA, 

that the changed circumstances must 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 modification of child support, we decline to rule on this 

issue. Because circumstances may have changed since this 

appeal was 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 District Court. 

'I 

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We Concur: 

Justice