### No. 80-353 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981

SHIRLEY RAE 

### JENSEN,Petitioner and Respondent,

VS. 

### GORDON STEVEN JENSEN, Respondent and Appellant.

Appeal from: District Court of the Fourth Judicial District, In and for the County of Missoula. Honorable James B. Wheelis, Judge presiding. Counsel of Record: For Appellant: Sadler Law Offices, Missoula, Montana For Respondent: Balyeat, Kammerer and Rodli, Missoula, Montana

Submitted on briefs: February 25, 1981 Decided: June 

### 10, 1981 Filed:

# JUN10

## 198

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### ClerkMr. JusticeFred J. Weber delivered the Opinion of the Court. Appellant and respondent, Gordon Steven Jensen, hereinafter referred to as the husband, appeals from the judgment and order of the DistrictCourt of the Fourth Judicial District, Missoula County, the Honorable James B. Wheelis, presiding, entered after a hearing upon respondent Shirley Rae Jensen's (wife's) petition for specific enforcement and modification of the decree of dissolution of theirmarriage. The courtordered the husband to pay $1,035.74 inback child support pursuant to the parties' amended separation agreement, and then modified the agreement by increasing futuremonthly child supportpayments. Finally, the court awarded the wife reasonable attorney fees, later determined tobe $1,657.16. We affirm the decision of the lower court. The following issues 

### willbe discussed: 1. Did the District Court 

### err inconstruing the provisions of the parties' separation agreement? 2. Did the court err inmodifying the previous divorce decree so as to increase future child support payments? 3. Did the courtproperly award attorney fees towife? Weaffirm the DistrictCourt's judgment on allissues. Wedo not discuss husband's allegation that the court erred infailing to consider the contributions and expenses of Bob Stock, wife's former live-in boyfriend; that allegation 

### is completely unsupported by the record. We also note that the separation agreement 

### isnot too vague; further litigation 

### willresult only if a party fails to abide by the court's decision. The parties' marriage was dissolved by decree on January 10, 1977. The decree specifically incorporated a separation agreement executed by the parties. The separation agreement provided inpart as follows:1. the wife would have custody of the parties' two minor children; 2. the husband would pay $150 per month total child support; 3. the husband would claim both children asdependents for purposes of taking income tax exemptions; 4. the wife would take 

### title to the parties' house, which includes income-producing rental property; and, 5. the successful party inany future action to enforce, modify or interpret the agreement would be awarded reasonable attorney fees. Less than one year after entry of the decree of dissolution,

on November 

### 8, 1977, the wife filed a petition tomodify the decree. The wife alleged substantial changes incircumstances sufficient tojustify increasing child support payments to $300 per month. That action

### was settledwhen the parties stipulated to the following modifications of their original separation agreement: (1)each party was allowed to claim one child as an income tax exemption; (2) the husband agreed topay for insurance coverage on the wife's automobile; (3) the husband's monthly child support payments 

### were increased from $150 tota1,to $112.50 per child, for a new total of $225, subject to later increases. The above-stated modifications 

### wereaccepted by the District Court, and the original decree was modified by an order dated and filedApril 12, 1978. Modification no. 3 above 

### is the subject of the present dispute. The full text of thatprovision 

### is: "Child Support: [Husband] agrees topay to [wife] asand for support and maintenance of the children, the 

### sum of One Hundred Twelve Dollars and 50/100 ($112.50) per month per child 

# . . . It

### is further agreed that in the event [husband] receives as [sic] increase in salary through his employment, [wife] shall receive a percentage increase inthe payment 

### received for child support, which percentage shallbe equal to thepercentage change inthe salary of the [husband]."The husband 

### is a licensed, union plumber. Hiswage raises since the date of modification (April 12, 1978) are undisputed. On April 12, 1978, he was earning $11.68 per hour. Hishourly wage increased to $12.85 on May 1, 1978, to $14.06 on July 1, 1978, and to $15.71 on July 10, 1979. The lastratewas ineffectatthe 

### time this actionwas commenced. The last-mentioned hourly wage amounts to an increase of 34.5 percent over theApril 12, 1978, wage. Husband's gross yearly earnings, however, have not increased by the

same percentages. Due to the nature of his employment, he does notwork during various periods ineach year. Apparently for thatreason, his gross yearly earnings in 1979 increased only 9 percent over his earnings in 1978 ($26,023 in 1979, $24,212 in 1978) and hisnet earnings increased only 6 percent. The husband increased hismonthly payments by $25 during themonths of June, July, August, September and October of 1979. Such increase amounts to 11 percent over thebase support figure of $225. However, inNovember 1979, the husband paid only $150 and inDecember 1979, he paid only $200. Thus sinceApril 1978, the husband has paid a netof only $25more than a total amount computed atthe rateof $225per month. The DistrictCourt found that for the year 1978, the wife's income, exclusive of child support, was $5,631.21 and her expenses 

### were $8,850.32. The court specifically found that "thebudget on which [thewife] and her two (2) children existdoes not provide for the reasonably necessary essentials of life.

### " The wife filed this actionon July 25, 1979. 

### Inher"Petition for Specific Enforcement and Modification of Decree of Dissolution of Marriage" she prayed for allback support owed to her because of the husband's increases in salary sinceApril 12, 1978, and formodification of the decree to provide for futuremonthly supportpayments of $350 per child. She alsorequested thather maiden name be restored toher. The husband responded with his own "Petition toAmend" inwhich he prayed that the child support provision be declared null and void, alleging that such a provision 

### is againstpublic policy and 

### willonly foster continual litigation. He alleged that the child support figure of $225 per month should remain ineffect. Trial was held on January 23, 1980. Each party then submitted proposed findings and conclusions, and supporting briefs. The DistrictCourt entered judgment by "Decree Modifying the 

### Decree of Dissolution of Marriage." The new decree orders the husband topay back support, pursuant to the separation agreement asamended, inthe amount of $1,035.74; that amount 

### is equal to the increases in supportwhich the husband should have paid ashis hourly wages rose. The decree also orders the husband topay future support inthe amount of $275per child, per month. The decree provides that allother provisions of the original separation agreement

as amended shall remain effective. Finally, the decree awards wife reasonable attorney fees, which were determined ata later hearing tobe $1,657.16. The husband appeals. This Court

### willnot substitute

### its judgment for thatof the 

### trier of fact. We

### willconsider only whether substantialcredible evidence supports the findings and conclusions. Findings 

### willnot be overturned unless there 

### is a clear preponderance of evidence against them, recognizing that evidence may be weak or conflicting, yet 

### still support the findings. Phennicie v. Phennicie (1979), 

## - Mon

### t

# . , 604 P.2d 787, 790, 36 St.Rep. 2378, 2381. The judgment of the trial court 

### ispresumed correct, and this Court

### willdraw every legitimate in£ erence to support thatpresumption. Marta v. Smith (1981), - Mont. 

## , 622 P.2d 1011, 1015, 38 St.Rep. 28, 32; Madison Fork Ranch v. L & B Lodge, Etc. Mont. (1980) 

## - 

## , 615 P.2d 900, 905-906, 37 St.Rep. 1468, 1473.The DistrictCourt awarded back child support inthe amount of $1,035.74, calculated by determining the percentage increases inthe husband's hourly wage rate. The husband claims error, arguing that the provision was intended to apply toincreases inhis net earnings, which amount here to approximately 6percent in 1979 over 1978, whereas the court tied the provision to increases inhis wage rate, which amounted ultimately to 34.5 percent. We find there 

### is no clear preponderance of evidence against the court's findings. Only the husband testified thathe interpreted the agreement

ascalling for increases inchild support in the same percentage as thatby which his net salary increased, computed atthe end of the year. The court 

### is not bound by the parties' agreements as to child supportwhere the welfare of the children 

### is concerned. Winters v. Winters (1980), Mont. 

## , 610 P.2d 1165, 1168, 37 St.Rep. 847, 850. The 

## - - husband's approach would be todetermine atthe end of the year his net increase in salaryover the previous year, and then to increase his succeeding monthly support payments bythe same Percentage. The DistrictCourt has interpreted the agreement in lightof the best interestsof the children; the requirement that child support be increased as the husband's wage rate

### rises 

### willbetter enable the wife to 

### meetcurrent expenses of raising and maintaining the children. The findings as to the wife's financial plight support such

an interpretation. We decline to overturn the District Court

## 's judgment

# . If the DistrictCourt had applied the 34.5 percent increase inhourly wage to future child support payments, the resultwould have been a total of $302.63 per month for both children. The court, instead, 

### set future support payments at

a total of $550 per month, which 

### is an increase of 144percent. In the absence of evidence showing a wage increase of 144percent, the determination by theDistrict Court constitutes a modification of the divorce decree. Because the husband did not consent inwriting to a modification of his child support obligation, the District Court could modify thatobligation only upon a showing of changed circumstances so substantial and continuing as to make the original child supportprovision unconscionable. Section 40-4-208(2) (b)(i), MCA; Firman v. Firman (1980), Mont.

## - 

## , 610 P.2d 178, 181, 37 St.Rep. 888, 890. The record here does contain evidence showing the need for increased child support and the husband's increased ability topay such support. There 

### is an evi-dentiarybasis to support the determination that 

### itwould be unconscionable to continue the child supportpayments presently ineffect. Mont. Gall 

### v. Gall (19801, 

### - 

## , 608 P.2d 496, 498, 37 St.Rep. 

## - 639, 641. Inpertinent part, the evidence shows that the husband's hourly wage increased approximately 34 percent from ~pril 1978to July 1979, while hisgross earnings for 1979 increased 9 percent over the 1978 gross earnings; and inaddition to such gross earnings, he received nontaxable, per diem "subsistence" payments when he worked out of Missoula which totaled $4,654 in 1979, making total compensation for 1979 equal to $30,677. The evidence shows that the wife's income in 1979, including child supportpayments, was $8,356, which was $494 

### less than her expenses; and, that additional money 

### is necessary to adequately provide for the children. This 

### is sufficient evidence of substantial and continuing circumstances which render theprior decree unconscionable and justifies modification. In

### re Marriage of Bliss (1980), Mont. 

## , 609 P.2d 1209, 1212, 37 St.Rep. 708, 710-711. The husband contests the award of attorney fees to the wife in the amount of $1,657.16. He argues that thewife

was not entitled to the judgment, so should not have been awarded fees. We affirm the judgment. Here, both contractual and statutorybases arepresent for awarding attorney 

### fees. Section 40-4-110 

## , MCA. The parties' separation agreement provides, 

### "[s] hould any actionbe commenced toenforce, modify or interpret any provision contained herein, the court, asa costof suit, shall award a reasonable attorney's fee to the successful party." This action fitssquarely within those 

### terms. A hearing was held on March 31, 1980, giving the husband the opportunity toobject to the claimed fees. The District Court's order of June 16, 1980, awarded attorney feesbased upon the evidence presented. We find no

error inthe award. The wife requests attorney fees be awarded upon this appeal. Her need for the award 

### is shown in the court's findings as toher present financial condition. Weaffirmthe decision of the DistrictCourt and remand for findings as toreasonable attorney fees upon appeal, pursuant to the separation agreement and section 40-4-110, MCA.

Weconcur:



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Justices