No. 80-408 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

IN RE THE MARRIAGE OF 

VIRGINIA LOUISE KNOWLTON, 

Petitioner and Appellant, 

-vsORA GALE KNOWLTOW, 

Respondent and Respondent. 

Appeal from: District Court 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: AuG 11 flW 
Mr. 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 (the father) and from 

an order changing custody of two of their five children from 

the mother to the father. 

The parties were divorced in 1978. The support agreement 

merged with the decree, provided among other things, that 

the father would provide the wife and children "with two 

full beef cattle per year for the use of the family." The 

father was also to have the beef cut, wrapped and delivered 

to the mother's residence. This proceeding started because 

the father failed to provide the two beef per year as required 

by the decree. The mother filed an affidavit alleging the 

father's failure to provide the beef together with a motion 

asking that the father be held in contempt of court. 

The father countered 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 live with the father. Only the attorneys signed the 

father's pleadings, which recite no evidentiary facts, only 

bald conclusions. 

The father failed to comply with section 40-4-220(1), 

MCA, which requires that the party seeking modification of a 

custody decree: 

". . . shall submit, together with his moving 

papers, an affidavit setting forth facts 

supporting the requested order or modification 

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: 

". . . The court shall deny the motion unless 

it finds that adequate cause for hearing the 

motion is established by the affidavits, in 

which case it shall set a date for hearing on 

an order to show cause why the requested order 

or modification 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 15 year 

old girl and the 13 year 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 issue was not raised on appeal 

by either party, we have no alternative but to set aside the 

order granting modification of custody. Based on section 

40-4-220(1), there was 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 

different problem. The father admits he did not furnish 

the beef as provided 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 as much beef for three children as she would 

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. The mother 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 up 
the past beef support arrearages. Although we do not here 

address the mother'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 from his 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 

(606 P.2d 518-519). That obligation, therefore, is still owed. 

We do not view beef support obligations different than we 

view child support obligations. Therefore, the trial court 

must enter an order compelling the father to comply with the 

accrued beef support obligations. 

The father argued he couldn't comply with the decree that 

he was to provide the family with two beef per year. If 

it is so, then we suggest that an appropriate action is to 

require the father to provide his family with additional 

money equal to the price of the beef he failed to provide. 

We again refer to the child custody modification proceedings. 

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 father has 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 trial 
court level when the result is to have the case dumped on 

this Court in such a procedural mess that we cannot reach 

the issues on 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, it means 

only that the parties must pay double for services rendered: 

first, for the initial proceedings; and, second, for the 

proceedings necessitated because of the errors of counsel. 

The order is vacated and this cause is remanded for 

proceedings consistent with this opinion. 

We concuj: 

Justices /