No. 04-852 IN THE SUPREME COURT OF THE STATE OF MONTANA 2006 MT 149

_______________________________________ IN RE THE MARRIAGE OF: PAMELA A. MILLS, Petitioner and Appellant, and MICHAEL J. MILLS, Respondent and Respondent.

______________________________________ APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, Cause No. ADR 95-144(B) The Honorable Julie Macek, Judge presiding.

COUNSEL OF RECORD: For Appellant: Gary M. Zadick and Mary K. Jar aczeski, Ugrin, Alexander, Zadick & Higgins, P.C., Great Falls, Montana For Respondent: Jeffrey S. Ferguson, Hoines & Ferguson, PLLP, Great Falls, Montana

____________________________________ Submitted on Briefs: October 11, 2005 Decided: July 5, 2006 Filed:

______________________________________ ClerkJustice John Warner delivered the Opinion of the Court. ¶1 Pamela A. Mills (Pamela) appeals from an Order of the Eighth Judicial District Court, Cascade County, modifying child support. We affirm in part and remand in part for further proceedings. ¶2 The issues Pamela raises on appeal are wh ether the District Court erred in finding a sufficient change of circumstances to modi fy child support, and whether the District Court erred in imputing income of $21,835 per year to Pa mela for the purposes of determining the amount of child support. ¶3 The marriage of Pamela and Michael J. Mills (Michael) was dissolved by decree entered July 6, 1995. They are the parent s of two children: Kyndal, born May 9, 1990, and Logan, born August 19, 1991. The pa rties entered into a dissolution agreement, adopted by the District Court, wherein Michael agreed to pay Pamela child support of $157.50 per month per child, fo r a total of $315.00 per m onth. The agreement also provided that they would share equally th e children’s medical costs not covered by Medicaid, and both children would primarily resi de with Pamela. The record reflects that a car accident rendered Pamela paraplegic, at least to some degree, before the dissolution. ¶4 On September 11, 2003, Michael filed a moti on to modify child support. Pamela responded by filing a motion to increase child support. Th ey reached an agreement and filed a stipulation to modify child support. The District Court issued an order adopting the stipulation on March 11, 2004. ¶5 Pursuant to the 2004 order, Michael was to pay Pamela child support of $250 per month per child, for a total of $500. Al so, Michael was to stop providing health

2insurance for the ch ildren, but was to pay 90% of thei r health care costs. Additionally, Pamela was to apply for health insuranc e coverage for Kyndal and Logan from the government sponsored CHIPS program, which pr ovides health insurance for low income families. Pamela applied for coverage; however, CHIPS denied her application. ¶6 On June 30, 2004, Michael again m oved to modify the child support arrangements, and also to modify the pare nting plan due to changed circumstances. Kyndal had decided that she wanted to live primarily with her father. Along with his motion, Michael submitted a proposed parentin g plan whereby Kynd al would generally reside with him, and Michael and Pamela would each pay half of the health care expenses for both children. Later, on October 26, 2004, Michael filed a proposed parenting plan in which he sought an order that neither he nor Pamela woul d pay child support, because each parent would have one of the children living with th em and they had similar annual incomes. ¶7 At the hearing on Michael’s motion, th ere was substantial testimony concerning Pamela’s income and potential income. The evidence showed that Pamela had, during 2003, worked full-time at FM C Leasing, earning $19,096.73. Additionally, her 2003 U.S. income tax return showed income of $2 1,835. Pamela testified that her physical health forced her to leave FMC leasing, because she was physically unable to perform the required work. ¶8 The record reflects that Pamela began working part-time at a jewelry store in October of 2003. She first testified that he r monthly gross income was capped at $700 to avoid losing at least a part of her disa bility payments. But, she admitted on cross-

3examination that she could ma ke up to $810 without affecti ng her disability payments. Pamela took the position that child support shou ld be the same amount ordered in March of 2004, based on her actual income. ¶9 Pamela has a bachelor’s degree in couns eling psychology. However, licensing in this field requires a master’s degree, and sh e claimed that her financial situation made pursuit of a master’s degree unfeasible. Pame la also claimed that her mother’s illness and her own health conditions prevented her from lo oking for employment that would not require her to be on her feet as much as sh e was during her employme nt at FMC Leasing. Also, she previously directed productions fo r a group known as First Night Great Falls, for which she received compensation. Sh e kept less than $7 00, and donated any remaining compensation back to the group. She said that she did not plan to direct again. ¶10 Pamela was also an unsuccessful candi date for Cascade C ounty Commissioner. A newspaper article was introduc ed which quoted her as sa ying that she “could bring energy, enthusiasm, and pride back to the commission.” On the witness stand, Pamela expressed uncertainty as to whether she could have physically handle d the task of being a county commissioner, but had thought it possibl e. A Cascade Coun ty Commissioner is paid $47,000 a year. ¶11 After hearing the evidence, by order of November 18, 2004, the District Court granted Michael’s motion to modify the paren ting plan to the effect that Kyndal would live primarily with him. The District Court al so found that Kyndal’s change of residence constituted a change of circumstances, citing ' 40-4-208(2)(b)(i), MCA. The order required counsel for the parties to submit calc ulations of the amou nt of child support

4owed under the Montana Child Support Guid elines. Without maki ng any findings of fact, the District Court ordered that, in appl ying the guidelines, Pame la’s income was to be entered into the calculations as $21,835, and Michael’s income wa s to be entered as $29,500. ¶12 Counsel applied the child support guidelin es as ordered, and submitted the result to the District Court. The District C ourt adopted the calculation by order dated December 13, 2004, and require d a monthly payment of child support from Michael to Pamela of $104. The final order also requ ired Michael to pay 63% of the children’s medical expenses, with Pamela paying the remainder. This appeal followed. ¶13 Pamela appeals the reduction in child supp ort paid to her. Sh e claims that the single change in circumstances of Kyndal living with her father is in sufficient to justify a change in child suppo rt because the District Court order from March of 2004 provided that child support was $250 per month, per child. Thus , she argues, there has been no change in circumstances as a matter of la w, and she should still receive $250 per month because one child remains with her. She also argues that th e evidence does not support the use of $21,835 as her income in the calculation of child support under the guidelines. ¶14 When a district court determ ines whether a change in ci rcumstances is sufficient to justify a change in child suppo rt, we will not disturb that de termination absent an abuse of discretion. In re Marriage of Clyatt (1994), 267 Mont. 119, 122, 882 P.2d 503, 505. We give great deference to the district cour t’s judgment, and presume its decision to be

correct. Clyatt , 267 Mont. at 122, 882 P.2d at 505. ¶15 Section 40-4-208(2)(b)(i), MCA, provides:

5(2)(b) Except as provided in 40-4-251 through 40-4-258, whenever the decree proposed for modification contains provisions relating to maintenance or support, modificati on under subsection (1) may only be made: (i) upon a showing of changed circumst ances so substantial and continuing as to make the terms unconscionable. ¶16 It is uncontested that Kyndal no longer resided with Pamela, which reduced her household by one person, and that Michael’s household increased by one person. This change in circumstances would tend to render the prior child support order unconscionable as Pamela’s expenses would de crease and Michael’s would increase. To simply reduce the child support by one half, because one of th e two children went to live with the other parent, is not required as a matter of law. The a pplication of the child support guidelines takes into account not only the income and expenses of the parents, but also the size of their households. Th e guidelines call for applying a primary child support allowance per year which varies depend ing on the persons in a household. Rule 37.62.121, ARM. In addition, the change in primary resi dence of a child could well affect the amount of Federal and Montana income tax a parent is obligated to pay, which amount is a deduction from income in th e child support calculations. Rule 37.62.110(1)(d), ARM. We conclude that the District Court did not abuse its discretion in determining that Kyndal’s ch ange in primary residence fro m her mother to her father was a substantial change in circumstances. ¶17 Pamela also claims that the District Cour t erred in ordering that her income be included as $21,835 in the worksheet used to compute child support under the guidelines. As the evidence is clear that she no longer earned that amount at the time of the hearing,

6she posits that the District Court must have imputed additional income to her in violation of Rule 37.62.106(9)(b), ARM. Pamela argu es it was improper to impute income to her because the evidence shows that she is physically disa bled and cannot earn a greater income than she did at the time of the hearing. ¶18 This Court reviews a district court’s award of child support for abuse of discretion, to determine if the district court acted arb itrarily without employment of conscientious judgment or exceeded the bo unds of reason resulting in substantial injustice. In re Marriage of Helzer , 2004 MT 352, & 20, 324 Mont. 371, & 20, 102 P.3d 1263, & 20. The District Court must enter findings of fact in ruling on motions to amend a parenting plan, as an aid to the trial j udge’s process of adjudication, fo r purposes of res judicata and estoppel by judgment, and as an aid to the appellate court on re view. Failure to do so is an abuse of discretion. In re Marriage of Lawrence , 2005 MT 125, ¶ 15, 327 Mont. 209, ¶ 15, 112 P.3d 1036, ¶ 15 (citing In re Marriage of Barron (1978), 177 Mont. 161, 164, 580 P.2d 936, 938). These same reasons for requiring findings of fact apply to rulings on motions for a change in child support. We have stated that a district court is required to make specific findings of fact in writing to explain its calculation of child support. In re Marriage of Stufft (1997), 286 Mont. 239, 25 0, 950 P.2d 1373, 1379. ¶19 Pamela is correct that Ru le 37.62.106(9)(b), ARM, provides that income should not be imputed to a parent that is physically or mentally disabl ed, to the extent that parent cannot earn income. However, th e evidence in this case might support a determination that Pamela was voluntarily underemployed, or that she had the ability to earn a greater amount because of her qualifica tions and physical and mental abilities. If such were the

7case, it would be proper to impute income to her under the guidelines. Rule 37.62.106(6), (7), ARM. ¶20 The District Court made no findings of fa ct concerning its decision to order that Pamela’s income be included in the child supp ort guidelines calculations at $21,835. The District Court gave no reason whatever for setting her income at this amount. While we do not require specific findings of fact on ev ery element in Rule 37.62.106(6), (7), and (9), ARM, the District Court must set forth th e essential and determining facts underlying its decision. Lawrence , ¶ 18. Because the District Cour t’s order of November 18, 2004, is devoid of any findings of fact, we are un able to determine the re asons why the District Court ordered that Pamela’s income be ente red in the child support calculations at $21,835. Thus, the District Court abused its discretion in setting the amount of child support. Heltzer , ¶ 25; Lawrence , ¶ 18. ¶21 We affirm the order of the District Court that there was a change in circumstances sufficient to modify child support. We remand to the District Court for findings of fact and conclusions of law sufficient to allow a m eaningful review of the calculation of child support under the Montana Child Support Guidelines. /S/ JOHN WARNER We Concur: /S/ KARLA M. GRAY /S/ W. WILLIAM LEAPHART /S/ PATRICIA COTTER /S/ JAMES C. NELSON

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