Marriage of Rhonda and Donald Damsc
265 P.3d 1245
Mont.2011Background
- Rhonda Damschen and Donald Damschen married in June 1989 and divorced in October 2000 in Missoula County.
- At dissolution, Donald was a surgeon and Rhonda cared for three children at home; Rhonda later worked part-time as a physician.
- The 2000 Decree included a Marital Dissolution Settlement Agreement with a child-support schedule that tied payments to percentages of Donald’s gross salary (26% to Rhonda until child A turns 18, 20% to Rhonda until child B turns 18, 14% to Rhonda until child C turns 18).
- An August 2003 permanent settlement amended custody from Rhonda sole custody to shared residential custody, later modified by January 2005 orders to alternating custody and public schooling.
- On September 28, 2007, Donald moved to modify child support under § 40-4-208(2)(b)(i), alleging substantial and continuing changed circumstances; Rhonda began part-time employment and the children shifted to public schooling and shared custody.
- The District Court ordered further calculation by Guidelines Consulting, held a master-supervised settlement conference, and later granted Donald’s motion to modify child support, retroactive to September 28, 2007; Rhonda appealed the modification and related attorney’s-fee orders.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court erred in granting modification of child support. | Damschen argues the changes were not substantial/continuing or unconscionable. | Damschen contends substantial and continuing changed circumstances and unconscionable terms exist. | No error; court properly found substantial changes and unconscionable terms under § 40-4-208(2)(b)(i). |
| Whether the district court erred awarding attorney’s fees to Donald and in the amount. | Rhonda argues fee award relies on contract and includes non-prevailing matters. | Donald says prevailing-party clause in the agreement supports fees; amount is reasonable. | Fees awarded; contract allowed prevailing-party fees and the amount was reasonable under Plath/Montana standards. |
Key Cases Cited
- In re Marriage of Jarussi, 1998 MT 272 (Mont. 1998) (review of changes in circumstances and unconscionability standard not necessarily requiring express statutory wording)
- Minder v. Hampton, 2006 MT 294 (Mont. 2006) (review of factual findings in child-support modification for clear error; discretion in determining substantial changes and unconscionability)
- In re Marriage of Mills, 2006 MT 149 (Mont. 2006) (recognizes changes in custody/expenses can render prior support unconscionable)
- In re Marriage of Kovash, 270 Mont. 517, 893 P.2d 860 (Mont. 1995) (separation or settlement agreements not binding on court for child support)