No. 86-329 IN THE SUPREME COURT OF THE STATE OF MONTANA 1986

IN RE THEMATTER OF CHILD SUPPORT, MARY ANN ISAACS,n/k/a KURTZ, Petitioner and Respondent,

MURR ISAACS, Respondent and Appellant.

APPEAL FROM: District Court of the ThirteenthJudicial District, In and for theCounty ofYellowstone, TheHonorable Charles Luedke, Judge presiding.

COIJNSEL OF RECORD:

ForAppellant: D. Michael Eakin and Russell LaVigne,Montana Legal Services,Helena,Montana

For Respondent: J. Dennis Corbin,Miles City,Montana

- -- -- -- Submitted on Briefs: Sept. 25, 1986 Decided: 

### December 9,1986

Filed: 

## DEC9

# -1986

ClerkMr. Justice Fred J. Weber delivered the Opinionof the Court.
This is an appeal from an order of the District Court for Yellowstone County, granting $150 per month in child support to the father. We remand to the District Court for clarification. The issuesare: 1. Did the District Court abuse its discretion by granting an amount of child support which is less than the amount determined under the Carlson formula and less than the boys would be entitled to under Aid to Families with Dependent Children (AFDC) ? 2. Did the District Court err by failing to make adequate findings as to how the amount of child support was determined? The parents marriage was dissolved in 1976. Themother
was awarded sole custody of theyounger son,Charles,and the father was given sole custody of the older son, William. Both parties were to provide support for the child in their custody. The fatherwas also ordered to pay the mother $75 per month for the supportofCharles. InDecember 1985Charleswas found to be ayouth inneed of care and was removed fromhismother's custody and placed in his father's custody. That court order stated that "any determination as to what, if any, support should be paid by the boy's natural mother to the boy's natural father for his care, shouldbe determined in the Court of original jurisdiction in Yellowstone County." Shortly thereafter, the father filed his petition for child support, and in March 1986 he moved for temporary child support. He asked for $180 per month for eachboy.At the hearing, the mother's monthly income was established as between $800 and slightly over $900. The father testified that he had been laid off fromhis job at which he had earned $1,298.90 per month and was presently receiving $644per month in unemploymentbenefits. The District Court ordered the mother to pay $150 per month in child support until Charles reaches the age of majority. The father appeals.

Did the District Court abuse its discretionby granting an amount of child support which is less than the amount determined under the Carlson formula and less than the boys would be entitled to under Aid to Families with Dependent Children (AFDC) ? The parents agree that child support must be determined in accordance with § 40-4-204(1),MCA:

In a proceeding for dissolution ofmarriage, legal separation, maintenance, or child support, the courtmay order either orboth parents owing a duty of support to a child to pay an amount reasonable or necessary for his support, without regard to marital misconduct, after considering all relevant factors including: (a) the financial resources of the child; (b) the financial resources of the custodial parent; (c) the standard of living the child would have enjoyed had the marriage not been dissolved; (d) the physical and emotional condition of the child and his educationalneeds; (e) the financial resources and needs of the noncustodial parent; and (f) for thepurposes ofdeterminingaminimum amount for support, the amount receivedby children under the AFDC program, as defined in 53-2-702. Modification of child supportmust complywith § 40-4-208(b), MCA:Whenever the decree proposed for modification contains provisions relating to maintenance or support,modifi.cationunder subsection (1)may only be made:(i)upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable;or (ii)upon written consent of the parties. The court's findings and conclusions do not specify the statutes employed in rendering its decision. After making findings concerning the custody of the children and the income ofboth parents, theDistrict Courtmade this finding:
7. The present circumstances of petitioner, in the way she is supporting her present family, has the effect, to at least somedegree,of placing support of her current husband ahead of supporting her children. Some realignment of priorities in that regard appearsappropriate. The court concluded:
1. That the respondent is the legal custodian of the two minor childrenof theparties. 2. That thepetitioner is financially able to contribute to the support of said minor children. 3. Thatbased upon the incomesof the parties and the needs of the children, thepetitioner,MARY ANN KURTZ, is able to contribute the amount of $150.00 as child support for the minor children, commencing June lst, 1986, and on the 1st day of each month thereafter, until the youngest of the children shall have attained majority or otherwise become emancipated. The mother contends that the father failed to meet the criteria set forth in § 40-4-208,MCA, and that thereforeno child support could be awarded forWilliam. It is true that the father did not allege and the District Court did not specifically state that there was a change of circumstances so that the original support decree is now unconscionable. However, it is obvious that the change of custody of Charles
was a changed circumstance so substantial and continuing as to make the original child support terms unconscionable. The father states that the order for $150 per month in child support does not comply with the formula set forth in In re Marriage of Carlson (Mont. 1984), 693 P.2d 496, 41St.Rep. 2419. That formula sets the child support amount based on the ratiosof theparents' incomesas they relate to the total needs of the child. The father argues that under that formula, even if his pre-layoff income rather than his unemployment income was used, the wife would be required to pay child supportof $287per month, to meet the needs of the boys as determined by the amounts of AFDC, food stamps, and Medicaid to which they would be entitled. However, the formula in Carlsonwas offered as a guideline, not a requirement. Also, this Court has never required that children's needs be set at the total ofAFDC, food stamps,and Medicaid amounts for that number of children. The statutory standards control. The father also states that the amount of child support ordered by the court does not provide support for the children in an amount at least equal towhat they would be entitled to under the AFDC program. He points out that theAFDC amount must be considered under S 40-4-204(1)(f), MCA, and states the monthly AFDC amount as $354. Actually, that is the amount for two children and an adult. The amount for two children is $104 per month. Section 46.10.403 (4)(b)

## ,A.R.M. The court's support amount exceeds that. We conclude that the District Court did not err on either of these grounds. I1 Did the District Court err by failing to make adequate findings as to how the amount of child support was determined? The father cites Hansen v. Jurgens (Mont. 1986), 722 P.2d 1151, 43 St.Rep. 1316, inwhichwe remanded findingsandconclusions for clarificationof the origin of the amount set for child support:
Because the [child support] figure appears inconsistent with other relevant findings supported in the record and its origin is not clear from the record on appeal, this Court remands the original District Court order to the

# ... judge for clarification on thispoint. Hansen, 722 P.2d at 1155. Here, the District Court stated that itbased its order
on the incomes of theparties and the needs of the children. The court received into evidence tablesof U.S. Department of Agriculture estimates of the costs of raising a child. It made specific findings as to the income of the parents, but nowhere in the findings and conclusions does the court set forth any statement of the needs of the children. As was true in the Hansen case, the origin of the child support figure is not clear from the record. A child support amount cannot be set or reviewed without a determination of the needs of the children. Accordingly, we remand to the District Court for clarification of the findings, conclusions and order.

We Concur: