DUFFEY v DUFFEY
Annotate this Case
Download PDF
NO. 50-386 I N THE SUPREME COURT O THE STATE OF M N A A F OTN 1981 R N L F. DUFFEY, O AD P l a i n t i f f and Appellant, -vsHARRIET DUFFEY, Defendant and Respondent. Appeal from: District Court of t h e F i f t h J u d i c i a l D i s t r i c t , I n a n d f o r t h e County o f J e f f e r s o n . The H o n o r a b l e F r a n k E . B l a i r , J u d g e p r e s i d i n g . Counsel o f Record: For Appellant: H u l l a n d S h e r l o c k , H e l e n a , blontana For Respondent: R. Thomas G a r r i s o n , V i r g i n i a C i t y , Montana Submitted on B r i e f s : Decided : Filed: JM16 1988 March 4 , 1981 -&L 16 1981 Mr. Justice Daniel J. Shea delivered the Opinion of the Court. Ronald Duffey (the father) appeals from the judgment of the Jefferson County District Court denying his petition for modification of custody and granting the counterclaim of his ex-wife, Harriet Duffey (the mother) for increased child support, attorney's fees, and modification of the visitation rights. The father claims that the trial court erred in increasing the amount of child support payments because it relied on the income of his present wife in increasing the award, and because the trial court speculated that the father's Social Security benefits would be increased in the future (the father is disabled and receives disability benefits including benefits for his children). He also claims that the trial court erred in granting the wife's attorney's fees and to reimburse the wife for her court costs. The father also claims that the court erred by modifying the visitation order to let him take the children one weekend a month rather than at least two Saturdays each month. After the father had filed his petition to modify custody, at least five months went by before the matter was set for hearing. The mother did not file her response and counterclaim until the day of the hearing, in fact, she did so while the hearing was taking place. At the conclusion of the hearing, the court gave each party 15 days to submit proposed findings and conclusions. The father submitted his on time, but the mother obtained an ex parte extension from the court and filed hers at a later time. The father claims that the court should have granted his motion to strike the mother's response and counterclaim, and that the court erred in giving her an extension to file her proposed findings and conclusions. The parties were divorced in 1972 and both have remarried. They have previously litigated questions of child custody and child support. The father filed his last petition in November 1979, to obtain custody of the three children, and that petition was heard in May. At no time during the time the petition was filed and the hearing did the father take any action to compel the mother to file her response. We must remand this cause for another hearing because it is clear that the trial court based its order for increased child support on improper considerations. First, in a memorandum accompanying the findings and conclusions, the trial court clearly implies that it considered the income of the father's present wife in its determination of the father's ability to pay increased child support. The implication is that since the wife was bound to support her disabled husband, that more of his income was therefore freed to support his children by a previous marriage. But section 40-6-217, MCA, states that "[A] married person is not bound to support his spouse's children by a former marriage . . ." and section 40-2-208, MCA, provides that "the property of a married person is not liable for the debts of the person's spouse contracted before the marriage." The clear effect of the court order is to make the father's present spouse's property or income indirectly available to pay child support for her husband's children by a previous marriage. Under these statutes, this cannot be done. Second, the court premised the husband's ability to pay increased child support on the fact that he had his present wife deposit $1,200 in a Keogh Retirement Plan over a two year period, and that as of July 1, 1980, there had been a 14 percent increase in Social Security disability benefits, and that such benefits were sure to increase in the future. The trial court cannot base child support upon speculative conditions. Gall v. Gall (1980), - Mont . -, 608 P.2d 496, 37 St.Rep. 639. Third, there is no evidence in the record concerning the children's financial needs, and resources, nor the financial needs and resources of the mother and father. The law requires this evidence to be before the trial court. See, Olson v. Olson (1978), 175 Mont. 444, 574 P.2d 1004, 35 St.Rep. 175. $1 Section 40-4-20 (b), MCA, states that unless the parties agree in writing to a new arrangement for child support, child support can only be modified upon a showing so substantial and continuous as to make the original child support payments unconscionable. (19801, - Mont . -, See, Firman v. Firman 610 P.2d 178, 37 St.Rep. 888, 890. The record contains no such showing and the trial court made no such finding. We cannot affirm the trial court's award of attorney fees, small as it was--$200. We have repeatedly held that written findings are required to establish both the need and reasonableness of an award of attorney's fees. See, e.g., In Re Marriage of Gohner (1980), - Mont. - 609 P.2d , 288, 37 St.Rep. 613, 615; Knudson v. Knudson (1980), Mont . , 606 P.2d 130, 37 St.Rep. 147; In Re Marriage of , Aanenson (1979), - Mont. - 598 P.2d 1120, 36 St.Rep. 1525, 1529; Downs v. Downs (1979) - Mont 938, 940, 36 St.Rep. 577, 581. section 40-4-110, MCA. . -, 592 P.2d These cases are based on The trial court failed to make either of these essential findings, and for that reason alone the award of attorney fees must be vacated. O t h e q u e s t i o n of m o d i f i c a t i o n of v i s i t a t i o n , we n a f f i r m t h e t r i a l c o u r t , b u t a l s o hold t h a t i n l i g h t of o u r remand, t h e t r i a l c o u r t can t h e n determine whether o r n o t it wants t o r e c o n s i d e r t h i s p a r t of i t s o r d e r . Before t h e h e a r i n g , t h e f a t h e r was e n t i t l e d t o v i s i t a t i o n on a t l e a s t two Saturdays p e r month. distance apart. He and t h e mother l i v e a l o n g The f a t h e r , mother, and c h i l d r e n , t e s t i f i e d t h a t i t was exceedingly hard having t o t r a v e l t o t h e f a t h e r ' s home and back t o t h e m o t h e r ' s home on t h e same day, i n o r d e r t o meet t h e Saturday v i s i t a t i o n schedule. The f a t h e r t e s t i f i e d t h a t Saturday v i s i t a t i o n involved a t l e a s t t h r e e and a h a l f t o f o u r hours t r a v e l i n g time on a normal day, and up t o s i x hours i n t h e w i n t e r . He admitted t h a t Saturday v i s i t a t i o n i s " n o t o n l y expensive b u t i t ' s hard on t h e k i d s and h a r d on everyone concerned." The t r i a l c o u r t simply modified t h e v i s i t a t i o n ( s e e , s e c t i o n 40-4-217(3), MCA) s o t h a t i t would s e r v e t h e b e s t i n t e r e s t of t h e c h i l d r e n . W b r i e f l y discuss t h e procedural questions r a i s e d . e In e f f e c t , t h e f a t h e r would have us g r a n t him custody of t h e c h i l d r e n by d e f a u l t ; t h a t i s , because t h e mother f a i l e d t o f i l e h e r response w i t h i n t h e time provided by t h e r u l e s . W have c o n s i s t e n t l y h e l d , however, t h a t any doubt i n t h e e l a t e f i l i n g of an answer should be r e s o l v e d by t r i a l on t h e m e r i t s (Cure v. Southwick ( 1 9 6 0 ) , 137 Mont. 1, 349 P.2d 575; B r o t h e r s v. B r o t h e r s ( 1 9 2 4 ) , 71 Mont. 378, 2 3 0 P . 6 0 ) , and custody c a s e s p r e s e n t a compelling reason f o r a h e a r i n g on t h e m e r i t s . f a u l t here. Further, t h e f a t h e r i s not without procedural A f t e r he f i l e d h i s p e t i t i o n f o r c u s t o d y , a t l e a s t s i x months e l a p s e d b e f o r e t h e h e a r i n g , and d u r i n g t h e i n t e r i m , he could have rnoved t h e c o u r t t o compel t h e mother t o f i l e an answer o r t o have h e r h e l d i n contempt of c o u r t i f s h e f a i l e d t o do so. The f a t h e r d i d n o t h i n g . W e do n o t see e r r o r i n t h e t r i a l c o u r t g r a n t i n g a n e x p a r t e r e q u e s t o f t h e mother t o have a d d i t i o n a l t i m e t o f i l e h e r proposed f i n d i n g s and c o n c l u s i o n s . M.R.Civ.P. Rule 6 (b) (1) , g i v e s t h i s r i g h t t o t h e c o u r t , and t h e f a t h e r h a s n o t shown t h a t t h e e x t e n s i o n w a s g i v e n a f t e r t h e e x p i r a t i o n of t h e t i m e due f o r submission o f t h e proposed f i n d i n g s and c o n c l u s i o n s . F u r t h e r , t h e f a t h e r h a s f a i l e d t o show how h i s s u b s t a n t i a l r i g h t s w e r e p r e j u d i c e d by t h e c o u r t ' s g r a n t i n g t h i s extension. The o r d e r i s v a c a t e d and t h i s c a u s e i s remanded t o t h e D i s t r i c t Court f o r f u r t h e r proceedings c o n s i s t e n t w i t h t h i s opinion. W e concur: A Chief J u s t i c e \
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
