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: JUN 1 0 198 

v -- 

Clerk 
Mr. Justice Fred 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 District Court 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 their marriage. 

The court ordered the husband to pay $1,035.74 in back 

child support pursuant to the parties' amended separation 

agreement, and then modified the agreement by increasing 

future monthly child support payments. Finally, the court 

awarded the wife reasonable attorney fees, later determined 

to be $1,657.16. We affirm the decision of the lower court. 

The following issues will be discussed: 

1. Did the District Court err in construing the provisions of the parties' separation agreement? 

2. Did the court err in modifying the previous divorce 

decree so as to increase future child support payments? 

3. Did the court properly award attorney fees to wife? 

We affirm the District Court's judgment on all issues. 

We do not discuss husband's allegation that the court erred 

in failing 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 is not too vague; further litigation 

will result 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 in part 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 as dependents 

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 in any 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 to modify the 

decree. The wife alleged substantial changes in circumstances 

sufficient to justify increasing child support payments to 

$300 per month. That action was settled when 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 to pay 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 were accepted by the District 

Court, and the original decree was modified by an order 

dated and filed April 12, 1978. 

Modification no. 3 above is the subject of the present 

dispute. The full text of that provision is: 

"Child Support: [Husband] agrees to pay to [wife] 

as and 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 in the payment received for child support, which percentage shall be 

equal to the percentage change in the salary of the 

[husband]." 
The husband is a licensed, union plumber. His wage 

raises since the date of modification (April 12, 1978) are 

undisputed. On April 12, 1978, he was earning $11.68 per 

hour. His hourly 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 last rate was in effect at the time this action was 

commenced. 

The last-mentioned hourly wage amounts to an increase 

of 34.5 percent over the April 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 not work during various periods in each year. Apparently 

for that reason, his gross yearly earnings in 1979 increased 

only 9 percent over his earnings in 1978 ($26,023 in 1979, 

$24,212 in 1978) and his net earnings increased only 6 

percent. 

The husband increased his monthly payments by $25 

during the months of June, July, August, September and 

October of 1979. Such increase amounts to 11 percent over 

the base support figure of $225. However, in November 1979, 

the husband paid only $150 and in December 1979, he paid 

only $200. Thus since April 1978, the husband has paid a 

net of only $25 more than a total amount computed at the 

rate of $225 per month. 

The District Court 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 "the budget on which [the wife] and her two (2) children 

exist does not provide for the reasonably necessary essentials 

of life. " 

The wife filed this action on July 25, 1979. In her 
"Petition for Specific Enforcement and Modification of 

Decree of Dissolution of Marriage" she prayed for all back 

support owed to her because of the husband's increases in 

salary since April 12, 1978, and for modification of the 

decree to provide for future monthly support payments of 

$350 per child. She also requested that her maiden name be 

restored to her. 

The husband responded with his own "Petition to Amend" 

in which he prayed that the child support provision be 

declared null and void, alleging that such a provision is 

against public policy and will only foster continual litigation. 

He alleged that the child support figure of $225 per month 

should remain in effect. 

Trial was held on January 23, 1980. Each party then 

submitted proposed findings and conclusions, and supporting 

briefs. 

The District Court entered judgment by "Decree Modifying 

the Decree of Dissolution of Marriage." The new decree 

orders the husband to pay back support, pursuant to the 

separation agreement as amended, in the amount of $1,035.74; 

that amount is equal to the increases in support which the 

husband should have paid as his hourly wages rose. The 

decree also orders the husband to pay future support in the 

amount of $275 per child, per month. The decree provides 

that all other provisions of the original separation agreement 

as amended shall remain effective. Finally, the decree 

awards wife reasonable attorney fees, which were determined 

at a later hearing to be $1,657.16. 

The husband appeals. 

This Court will not substitute its judgment for that of 

the trier of fact. We will consider only whether substantial 
credible evidence supports the findings and conclusions. 

Findings will not 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 is presumed correct, and this Court will draw 

every legitimate in£ erence to support that presumption. 

Marta v. Smith (1981), - Mont. , 622 P.2d 1011, 1015, 38 

St.Rep. 28, 32; Madison Fork Ranch v. L & B Lodge, Etc. 

(1980) - Mont. , 615 P.2d 900, 905-906, 37 St.Rep. 1468, 

1473. 

The District Court awarded back child support in the 

amount of $1,035.74, calculated by determining the percentage 

increases in the husband's hourly wage rate. The husband 

claims error, arguing that the provision was intended to 

apply to increases in his net earnings, which amount here to 

approximately 6 percent in 1979 over 1978, whereas the court 

tied the provision to increases in his 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 that he interpreted the agreement 

as calling for increases in child support in the same percentage as that by which his net salary increased, computed 

at the end of the year. The court is not bound by the 

parties' agreements as to child support where 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 to determine at the end of the 

year his net increase in salary over the previous year, and 

then to increase his succeeding monthly support payments by 
the same Percentage. The District Court has interpreted the 

agreement in light of the best interests of the children; 

the requirement that child support be increased as the 

husband's wage rate rises will better enable the wife to 

meet current 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 District Court had applied the 34.5 percent increase in hourly wage to future child support payments, the 

result would 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 144 percent. 

In the absence of evidence showing a wage increase of 144 percent, the determination by the District Court constitutes a 

modification of the divorce decree. 

Because the husband did not consent in writing to a 

modification of his child support obligation, the District 

Court could modify that obligation only upon a showing of 

changed circumstances so substantial and continuing as to 

make the original child support provision 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 

to pay such support. There is an evi-dentiary basis to 

support the determination that it would be unconscionable to 

continue the child support payments presently in effect. 

Gall v. Gall (19801, - Mont. - , 608 P.2d 496, 498, 37 St.Rep. 

639, 641. 

In pertinent part, the evidence shows that the husband's 

hourly wage increased approximately 34 percent from ~pril 1978 
to July 1979, while his gross earnings for 1979 increased 9 

percent over the 1978 gross earnings; and in addition 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 support payments, 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 the prior 

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 the wife 

was not entitled to the judgment, so should not have been 

awarded fees. We affirm the judgment. Here, both contractual 

and statutory bases are present for awarding attorney fees. 

Section 40-4-110 , MCA. The parties' separation agreement 

provides, " [s] hould any action be commenced to enforce, 

modify or interpret any provision contained herein, the 

court, as a cost of suit, shall award a reasonable attorney's 

fee to the successful party." This action fits squarely 

within those terms. A hearing was held on March 31, 1980, 

giving the husband the opportunity to object to the claimed 

fees. The District Court's order of June 16, 1980, awarded 

attorney fees based upon the evidence presented. We find no 

error in the award. 

The wife requests attorney fees be awarded upon this 

appeal. Her need for the award is shown in the court's 

findings as to her present financial condition. We affirm 
the decision of the District Court and remand for findings as 

to reasonable attorney fees upon appeal, pursuant to the separation agreement and section 40-4-110, MCA. 

We concur: 

.$+%- jfidt, 

Justices