No. 80-408
INTHE SUPREME COURT OF THE STATE OF MONTANA 1981

INRE THE MARRIAGE OF VIRGINIA LOUISE KNOWLTON, Petitioner and Appellant,

-vsORA GALE KNOWLTOW, Respondent and Respondent.

Appeal from: DistrictCourt of the Second Judicial District, In and for the County of Silver Bow, The Honorable James D. Freebourn, Judge presiding.
Counsel of Record: For Appellant: W. D. Murray, Jr., Butte, Montana

For Respondent: Dunlap & Caughlin, Butte, Montana

Submitted on Briefs: Ffarch 26, 1981 ~ecided; August 1.1, 1981

Filed: 

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## 11flWMr. Justice Daniel J. Shea delivered the Opinion of the Court

# . Virginia Knowlton (the mother) appeals from an order of the Silver Bow County District Court dismissing contempt proceedings against Ora Gale Knowlton (thefather) and from
an order changing custody of two of their five children from themother to the father. Thepartieswere divorced in 1978. The support agreement merged with thedecree,provided among other things, that the fatherwould provide thewife and children "with two fullbeef cattle per year for the use of the family." The fatherwas also to have the beef cut,wrapped and delivered to themother's residence. This proceeding started because the father failed to provide the two beef per year as required by the decree. Themother filed an affidavit alleging the father's failure toprovide the beef togetherwith a motion asking that the father be held in contempt of court. The fathercountered by asking for custody of two of the children. A daughter,age 15, lived with him during the
summer of 1979,and all of the followi~~ year,with the mother's acquiescence. A son, age 13, lived with the father during the summer of 1980,and apparently desired to continue to livewith the father. Only the attorneys signed the father's pleadings, which recite no evidentiary facts,only bald conclusions. The father failed to complywith section 40-4-220(1), MCA, which requires that the party seeking modification of a custody decree: 

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. . shall submit, together with hismoving papers, an affidavit setting forth facts supporting the requested order ormodification and shall give notice, together with a copy of his affidavit, to other parties to the proceeding, who may file opposing affidavits

# . .."In no uncertain terms, this same statute sets out the duty of the District Court if the affidavit fails to establish on its face a basis for holding a hearing: 

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. . The court shall deny the motion unless it finds that adequate cause forhearing the motion is establishedby the affidavits, in which case it shall set a date for hearing on an order to show causewhy the requested order ormodification should not be granted." Section 40-4-220(I),MCA. Both parties and the trial court ignored this statute and a hearing was held on the merits. In broad, conclusory findings, the trial court found that a basis was made to change custody,and therefore granted custody of the 15year old girl and the 13year old boy to the father. Because the parties and the trial court failed to abide by section 40-4- 220(1), and even though this issuewas not raised on appeal by either party, we have no alternativebut to set aside the order granting modification of custody. Based on section 40-4-220(1), therewas no basis set out by which the trial court could proceed to a hearing on the merits. The question of beef support, however, presents a differentproblem. The father admits he did not furnish the beef asprovided for in the decree. He alleged, however, that when asking for custody of two of the children, that the beef support decree be modified to reflect the changed circumstances if he should get custody--that is, the mother would not need asmuch beef for three children as shewould for all five children. To this proposition, the mother responded by asking that the beef support decree be modified by converting it into a decree providing for additional monetary support for the children. Themother also suggested
a formula for the conversion. The trial court dismissed the contempt proceedings, and also in effect ruled that the father did not have to make upthe past beef support arrearages. Although we do not here address themother's contention that the trial court should have found the father in contempt for failure to provide the beef supports,we do hold that the trial court had no right to excuse the father fromhis accrued beef support obligations. In Williams v. Budke (1980), Mont

# . , 606 P.2d 515, 37 St.Rep. 228,we held, among other things, that district courts cannot modify a delinquent child support obligation

(606P.2d 518-519). That obligation, therefore, is still owed. We do not view beef support obligations different thanwe view child support obligations. Therefore, the trial court must enter an order compelling the father to complywith the accrued beef support obligations. The fatherargued he couldn't complywith the decree that he was to provide the family with two beef per year. If it is so, thenwe suggest that an appropriate action is to require the father to provide his familywith additional money equal to the price of the beef he failed to provide. We again refer to the child custodymodificationproceedings. Time and again,we have urged counsel to observe the statutory procedures involved. Because of the failure here, all concerned suffer--except counsel. Because of the fact that the fatherhas now had custody of the girl for two years and the boy for one year, circumstances may justify a change in custody. If those circumstances exist, the trial court's jurisdiction to hear a request for modification of custody is contingent upon the filing of a properly verified petition to modify custody, setting out the evidentiary facts required to move the trial court's discretion. See, section 40-4-220(1),MCA, supra. We cannot condone the inadequate procedures used at the trialcourt level when the result is to have the case dumped on this Court in such a procedural mess thatwe cannot reach the issueson the merits. The long-term effects certainly hurt the public, but the short-term effects always hurt the parties. That is unfair, and they should not have to suffer because of the errors of counsel. We suggest in this case, therefore, that in future proceedings, counsel for both sides do not charge their clients for the services rendered. If they do, itmeans only that the partiesmust pay double for services rendered: first, for the initial proceedings; and, second, for the proceedings necessitated because of the errors of counsel. The order isvacated and this cause is remanded for proceedings consistentwith this opinion.

We concuj:

Justices 

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