No. 84-557 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

IN THE MATTER OF L. R., Youth 

In Need of Care. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Joel G. Roth, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hartelius & Ferguson; Cameron Ferguson, Great Falls, 

Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Kathy Seeley, Asst. Atty. General, Helena, Montana 

Patrick L. Paul, County Attorney, Great FaI.ls, Montana 

Barbara Bell, Deputy County Atty., Great Falls 

Jeffrey T. McAllister, Atty. for L.R., Great Falls, 

Montana 

Submitted on briefs: July 25, 1985 

Decided: October 15, 1985 

Filed: 
Mr. Justice William E. Hunt, Sr., delivered the Opinion of 

the Court. 

A. R. and W. R. appeal an Order of the Cascade County 

District Court requiring them to pay $28.80 per day for the 

care of their adopted daughter, L.R., in a foster care 

institution known as the Rxhievement Home. The court 

determined the parents were financially able to contribute to 

L.R. 's placement costs based upon A.R. 's monthly income, and 

his wife, W.R.'s ability to work. 

The sole issue raised by appellants is whether the 

District Court abused its discretion in setting the parent's 

support obligation at an excessivel-y high level. 

We reverse with instructions. 

In 1976, A.R. and W.R. adopted a seven-year-old 

daughter, L.R. The District Court determined she was a youth 

in need of care, and she was removed from her home when she 

was 15 years old. Her adoptive parents then attempted to 

relinquish custody of her and to terminate their parental 

rights and obligations. 

At the time of the financial support hearing, IJ.R. was 

residing at an institution known as the Achievement Home, in 

Great Falls. Her cost at the Achievement Home was $28.80 per 

day (approximately $875.00 per month). The cost of regular 

foster care in a private home would be between $300 and $350 

per month. L.R. was placed in the more expensive Achievement 

Home because of difficulty finding a foster home for a child 

of her age, and because of L.R.'s difficulty in adapting to a 

private foster home. In an order entered subsequent to its 

original order, the District Court refused to modify L.R.'s 

placement in the Achievement Home. 
In arriving at its finding that the parents were 

financially able to support L.R. in the Achievement Home, the 

District Court relied on § 41-3-1124(3), MCA, which provides 

in part: 

If the court determines that the parents are able 

to contribute to the support of the youth . . ., 

the court sha.11 issue an order directing the 

parents or guardian to make specified payments to 

the department to the extent considered appropriate 

under the circumstances. 

Further, we note in A.R.M. § 46.5.692: 

PARENTAL CONTRIBUTION COMPUTATION (1) For purposes 

of determining whether a parent is financially able . . . to support the child in a youth care facility 

and for purposes of determining a recommended 

amount of contribution, the department hereby 

adopts and incorporates by reference ARM 42.6.101 

through ARM 42.6.108, which sets forth the formula 

for determining the suggested minimum monthly child 

support contribution for purposes of child support 

enforcement purposes. 

A.R.M. 42.6.101 (4) defines " [mlonthly gross available 

resources" as "the sum of monthly income and %% of assets." 

From this amount is deducted an allowance for each person 

living in the home and financially dependent upon the 

parents. The resulting figure is used to determine the 

suggested. support contribution. 

On this appeal, the parents assert that the District 

Court erred by including as income, the wife's "ability to 

work" as this is a speculative condition. In its finding of 

fact no. 5, the District Court provid-ed: "[W.R.] is not 

working at the present time, but has worked in the past." 

Finding of fact no. 8 provided: "[A.R. and W.R.1 are 

financially able to support the cost of TL.R.'sl placement in 

at the Achievement Home based on [A.R. Is] monthly income and 

[W.R. Is] ability to work." The parents cite our opinion in 

Gall v. Gall (1980), 187 Mont. 17, 20, 608 P.2d 496, 498, 

which provides: 
[tl he conditions and circumstar~ces of the parties 

must be examined and determined at the time of the 

modification hearing, and may not be based upon 

mere speculative future conditions or possible 

conditions. 

We reiterated the point in Duffey v. Duffey (Mont. 1981), 631 

P.2d 697, 38 St.Rep 1105, when we vacated an ord.er which 

premised increased child support on the speculation that 

certain social security benefits "were sure to increase in 

the future. l1 While both Gall and Duffey address the child 

support obligation between divorced parents, and the present 

case involves a child support obligation of parents who are 

still married, we see no substantive distinction which would 

preclude an analogy to the present case determination that 

the amount of support should not be based upon speculative 

conditions. 

In order to affirm an order of the District Court, 

substantial credible evidence must exist in the record 

supporting its conclusions. The court concluded. the support 

order was based in part on its finding no. 8 of " [W.R. 'sl 

ability to work." However, nothing in the record supports 

that finding. The only relevant reference is on the parents1 

financial statement, which provided: "[A.R.'s] income is our 

only income since [W.R.] is not working." 

The obligation of support cannot be based upon 

speculative conditions. But a parent's ability to contribute 

is a legitimate consideration in determining the amount of an 

obligation of support. In the present case, the allegations 

that W.R. is able to work are not supported by record 

evidence, and without more, amount to mere speculation. 

We reverse with instructions to conduct a hearing on 

W.R.'s ability to contribute to L.R.'s support. 
We Concur: 

f 

Chief Justice 

Justices