Duffey v. DuffeyDuffey v. Duffey
delivered the opinion of the Court.
Rоnald Duffey (the father) appeals from the judgement of the Jefferson County District Court denying his petition for modification of custody and granting thе counterclaim of his ex-wife, Harriet 'Duffey (the mother) for increased child support, attorney’s fees, and modification of the visitatiоn rights.
The father claims that the trial court erred in increasing the amount of child support payments because it relied on the incomе of his present wife in increasing the award, and because the trial court speculated that the father’s Social Security benefits wоuld 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 visitаtion 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 married 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 fаther take any action to compel the mother to file her response.
Second, the court premised the husband’s аbility 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 yеar 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),
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),
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)
On the question of modification of visitation, we affirm the trial court, but also hold that in light of our remand, the trial court can then dеtermine whether or not it wants to reconsider this part of its order. Before the hearing, the father was entitled to visitation on at least twо Saturdays per month. He and the mother live a long distance apart. The father, mother, and children, testified that it was exceedingly hard having to travel to the father’s home and back to the mother’s home on the same day, in order to meet the Saturday visitation schedule. Thе father testified that Saturday visitation involved at least three and a half to four hours traveling time on a normal day, and up to six hours in the winter. He admitted that Saturday visitation is “not only expensive but it’s hard on the kids and hard on everyone concerned.” The trial court simply modified the visitation (see, section 40-4-217(3), MCA) so that it would serve the best interest of the children.
We briefly discuss the procedural questions raised. In effect, the fаther would have us grant him custody of the children by default; that is, because the mother failed to file her response within the time provided by the rulеs. We have consistently
We do not see error in the trial court granting an ex parte request of the mother to have additional time to file her proposed findings and conclusions. Rule 6(b)(1), M.R.Civ.P. gives this right tо the court, and the father has not shown that the extension was given after the expiration of the time due for submission of the proposed findings and conclusions. Further, the father has failed to show how his substantial rights were prejudiced by the court’s granting this extension.
The order is vacated and this cause is remanded to the District Court for further proceedings consistent with this opinion.