                                           No. 00-307

                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2002 MT 72N


IN RE THE MARRIAGE OF
PATRICK R. CAFFREY,

               Petitioner and Appellant,

         and

DEBRA A. CAFFREY,

               Respondent and Respondent.


APPEAL FROM:          District Court of the Fourth Judicial District,
                      In and for the County of Missoula,
                      The Honorable John W. Larson, Judge presiding.



COUNSEL OF RECORD:

               For Appellant:

                      John H. Sytsma, Seeley Lake, Montana; Hank T. Waters, Waters, Smith &
                      Gahagan, Hamilton, Montana

               For Respondent:

                      Charles D. Wall, Jr., French, Mercer, Grainey & O'Neill, Polson, Montana



                                                         Submitted on briefs: December 7, 2000

                                                                   Decided: April 11, 2002
Filed:



                      __________________________________________
                                        Clerk
Justice James C. Nelson delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited as precedent but shall be filed as a

public document with the Clerk of the Supreme Court and shall be reported by case title,

Supreme Court cause number and result to the State Reporter Publishing Company and to

West Group in the quarterly table of noncitable cases issued by this Court.

¶2     Patrick R. Caffrey (Patrick) appeals an order issued by the District Court for the

Fourth Judicial District, Missoula County, modifying Patrick's monthly child support

payment. We affirm.

¶3     Patrick raises the following issues on appeal:

¶4    1. Did the District Court err by modifying child support without finding substantial
and continuing changed circumstances?

¶5     2. Should the District Court's order be reversed and the parties' agreement enforced
for equitable reasons?

¶6     3. Is this Court's jurisprudence as set forth in In re Marriage of Widhalm and similar
cases which hold that parents may never contract with each other regarding child support and
child custody, inconsistent with United States Supreme Court jurisprudence and the Due
Process Clause of the Fourteenth Amendment?

¶7     In addition, Debra requests that this Court award her damages pursuant to Rule 32,

M.R.App.P., based upon Patrick's appeal of the District Court's order "without substantial or

reasonable grounds."



                          Factual and Procedural Background

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¶8     Patrick and Debra Caffrey (Debra) were married on August 4, 1983. In late 1991,

Patrick and Debra decided to dissolve their marriage, thus they entered into mediation to

resolve issues regarding property distribution, child custody and child support.

Consequently, Patrick and Debra signed a mediation agreement in February 1992 and, after

five months of negotiations, they each signed the "Marital and Property Settlement

Agreement" (the Agreement) on July 2, 1992.

¶9     On March 23, 1993, the District Court entered its Decree of Dissolution in this matter.

At the time of dissolution, the parties' marital estate was valued in excess of $580,000.

Properties received by Debra as an inheritance from her father seven years before the

dissolution of the parties' marriage were included in the marital estate as Patrick's income and

labor had been required to maintain those properties during the marriage.

¶10    Patrick works as a forest manager for Plum Creek in Seeley Lake and earns

approximately $66,000 per year. Debra works as a special education teacher in Missoula and

earns approximately $25,000 per year. Patrick and Debra have three children, a son who will

be 18 years old in July 2002, and twin daughters who will be 16 years old in May 2002. The

Agreement called for Debra to have primary physical custody of the children and for Patrick

to surrender $25,000 of his interest in the marital home to Debra in lieu of child support.

¶11    Although the Agreement called for Patrick to claim the children as dependents on his

income tax return, Debra claimed the children as dependents on her 1997 return asserting that

she provided the majority of support for the children. Thereafter, Patrick petitioned the court

to enforce the March 23, 1993 decree as it related to the tax exemptions and to modify the

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decree as it related to visitation and transportation of the children. The District Court

appointed a Guardian Ad Litem for the children to address the issues raised by Patrick's

petition. The Guardian did not address the issue of child support.

¶12    In its November 9, 1998 order resolving the parenting issues, the District Court

adopted the recommendations of the Guardian Ad Litem as to visitation, but did not make

any determination as to the tax exemptions pending the resolution of Debra's Motion to

Determine Child Support Obligation filed on May 14, 1998. The District Court appointed

another Guardian Ad Litem for the purpose of calculating child support. This Guardian Ad

Litem determined that the Agreement did not provide for the needs of the children, hence she

recommended a modification of child support using the Montana Child Support Guidelines

with a resulting payment from Patrick to Debra of either $605 per month or $1,022 per

month, depending on whether the District Court found that a lopsided property distribution

had occurred.

¶13    In its March 15, 2000 Order on Child Support, the District Court concluded that the

Agreement did not provide for the support of the parties' children, thus a modification of

child support was necessary. The court did not make any express findings regarding changed

circumstances or unconscionability.

¶14    In its order, the court elected the higher figure recommended by the Guardian Ad

Litem and ordered Patrick to pay Debra $1,022 per month in child support payments. The

court also ordered that these payments be retroactive to the date of the court's November



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1998 order. In addition, the District Court ordered that the tax exemptions for the children be

attributed to Patrick.

¶15    Patrick appeals the District Court's March 15, 2000 order regarding child support.

                                    Standard of Review

¶16    In cases involving modification of child support, we review a district court's findings

of fact to determine whether they are clearly erroneous. In re Marriage of Pearson, 1998

MT 236, ¶ 29, 291 Mont. 101, ¶ 29, 965 P.2d 268, ¶ 29 (citing In re Marriage of Widhalm

(1996), 279 Mont. 97, 100, 926 P.2d 748, 750). We review a district court's conclusions of

law to determine whether the court's interpretation of the law was correct. Pearson, ¶ 29.

And, we review a district court's overall decision on modification of child support for abuse

of discretion keeping in mind the best interests of the children. Pearson, ¶ 29.

                                           Issue 1.

¶17 Did the District Court err by modifying child support without finding substantial and
continuing changed circumstances?

¶18    Patrick argues that the District Court erred in modifying child support in this case

without first meeting the criteria established in § 40-4-208(2)(b), MCA. He contends that

since the District Court did not make express findings that there had been substantial and

continuing changed circumstances and that the Agreement was unconscionable, the court was

without the authority to modify the Agreement regarding child support.

¶19    Patrick is correct that § 40-4-208(2)(b), MCA, sets forth the standard for district

courts to follow when considering the propriety of modifying child support provisions in a


                                              5
dissolution decree. However, Patrick is incorrect in his interpretation of that statute as it

applies to this case.

¶20    Section 40-4-208(2), MCA, provides in pertinent part as follows:

              (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, modification under subsection (1) may only be made:
              (i) upon a showing of changed circumstances so substantial and
       continuing as to make the terms unconscionable;
              (ii) upon written consent of the parties; or
              (iii) upon application by the department of public health and human
       services, whenever the department of public health and human services is
       providing services under Title IV-D of the federal Social Security Act. The
       support obligation must be modified, as appropriate, in accordance with the
       guidelines promulgated under 40-5-209. Except as provided in 40-4-251
       through 40-4-258, a modification under this subsection may not be made
       within 12 months after the establishment of the order or the most recent
       modification. [Emphasis added.]

¶21    In the March 23, 1993 Decree of Dissolution, the District Court specifically decreed:

"That the provisions of the Marital and Property Settlement Agreement executed between the

parties is approved, but the Agreement is not part of the record in this matter, nor is it to be

set forth as part of the court’s decree." Consequently, since the parties' Marital and Property

Settlement Agreement containing provisions relating to child support was not incorporated

into the decree, the provisions of § 40-4-208(2)(b), MCA, are not applicable. In other words,

it was not necessary for the District Court to find that there were "changed circumstances so

substantial and continuing as to make the terms unconscionable" before the court could

modify child support.




                                               6
¶22    Similarly, the cases Patrick relies on in support of his argument regarding

unconscionability (In re Marriage of Jarussi, 1998 MT 272, 291 Mont. 371, 968 P.2d 720; In

re Marriage of Pearson, 1998 MT 236, 291 Mont. 101, 965 P.2d 268; In re Marriage of

Clyatt (1994), 267 Mont. 119, 882 P.2d 503; and In re Marriage of Barnard (1994), 264

Mont. 103, 870 P.2d 91) are all distinguishable from the case sub judice. In each of those

cases, the child support obligation was incorporated into the decree of dissolution, thus,

pursuant to § 40-4-208(2)(b), MCA, the court had to find that there were "changed

circumstances so substantial and continuing as to make the terms unconscionable" before the

court could modify child support. As we have already noted, that is not the case here.

¶23    Accordingly, we hold that the District Court did not err by modifying child support

without finding substantial and continuing changed circumstances.

                                          Issue 2.

¶24 Should the District Court's order be reversed and the parties' agreement enforced for
equitable reasons?

¶25    Patrick argues that the Agreement provides adequate support for the parties' three

children and that it contains clauses that allow for consultation and appropriate adjustment.

He contends that modifying the Agreement at this point would create an unconscionable

result and that there has been no finding that the children's needs are not being met. Patrick

also argues that his children enjoy an "exceptional" standard of living because he takes them

on "adventure vacations" throughout the United States and to places like Bora Bora,

Australia and the Caribbean.


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¶26    Contrary to Patrick's contentions, the children's needs are not being met under the

terms of the Agreement. Patrick claims he contributed a lump sum of $25,000 as support for

the children at the time of dissolution and that further support is not really necessary even

though he claims to have contributed more over the years. Nevertheless, $25,000 was not an

adequate amount to provide for Patrick's share of the needs of the parties' three children until

they reached the age of majority (which, in the case of the two younger children, was more

than eleven years from the date of dissolution). In addition, because of continuing problems

between Patrick and Debra, the clauses in the Agreement that "allow for consultation and

appropriate adjustment" became unworkable and a determination by the District Court was

necessary.

¶27    Furthermore, as Debra noted in her brief on appeal, while the District Court may not

have found that the children are "underprivileged" or that Debra is "destitute as Patrick would

have the court require," it did determine that the children's needs were not being met on

Debra's salary alone without the contribution of their father, and further determined that the

children's best interests would be better met if Patrick began contributing to their support.

Patrick's taking the children to exotic parts of the globe does not operate to put food in the

children's mouths or clothes on their backs. The District Court correctly determined that

Patrick's expenditures on vacations with the children do not relieve him of an actual child

support contribution towards their daily needs.

¶28    This Court has repeatedly held that a district court must consider the Uniform Child

Support Guidelines and the statutory criteria set forth at § 40-4-204, MCA, when it makes its

                                               8
child support determination. In re Marriage of Cowan (1996), 279 Mont. 491, 497-98, 928

P.2d 214, 218 (citations omitted). Section 40-4-204(3)(a), MCA, provides in pertinent part:

       Whenever a court issues or modifies an order concerning child support, the
       court shall determine the child support obligation by applying the standards in
       this section and the uniform child support guidelines adopted by the
       department of public health and human services pursuant to 40-5-209. The
       guidelines must be used in all cases, including cases in which . . . the parties
       have entered into an agreement regarding the support amount. [Emphasis
       added.]

¶29    Here, the Guardian Ad Litem made a recommendation based upon the Uniform Child

Support Guidelines. The District Court determined that Patrick was not providing for the

care and support of his children according to his respective abilities, thus the court properly

adopted the guardian's recommendation and ordered Patrick to pay $1,022 each month as

support for the children.

¶30    Accordingly, finding no abuse of discretion in the District Court's determination, we

affirm the court's award of child support.

                                             Issue 3.

¶31 Is this Court's jurisprudence as set forth in In re Marriage of Widhalm and similar
cases which hold that parents may never contract with each other regarding child support
and child custody, inconsistent with United States Supreme Court jurisprudence and the Due
Process Clause of the Fourteenth Amendment?

¶32    In its March 15, 2000 Order on Child Support, the District Court cited to In re

Marriage of Widhalm (1996), 279 Mont. 97, 926 P.2d 748, in support of its conclusion that

since the Agreement did not provide support for the parties' children it would be in the best

interests of the children to modify any support arrangement. In Widhalm, this Court


                                                9
determined that issues of custody and support of children are never left to contract between

the parties because it is the children and not the parents who are the beneficiaries of child

support decrees. Widhalm, 279 Mont. at 101, 926 P.2d at 750 (citations omitted).

¶33    Patrick objects to the District Court's determination arguing that this Court's long

standing jurisprudence that District Courts are not bound by contracts concerning child

support and child custody should only apply in cases where it has been established that the

State has a compelling interest, superior to that of the parents, in the children at issue. He

maintains that since this Court has not identified any threshold requirement, such as a finding

of abuse or neglect that would trigger such an imposition on a parent's right to raise his or her

children, the holdings in Widhalm and similar cases are blatantly unconstitutional and in

direct conflict with United States Supreme Court jurisprudence such as Troxel v. Granville

(2000), 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49.

¶34    However, contrary to Patrick's contentions, Troxel is distinguishable from this case

because Troxel dealt with a parent's rights regarding care, custody and control of children and

not with child support obligations. In Troxel, paternal grandparents petitioned for increased

visitation with their deceased son's children. While the children's mother did not deny the

grandparents visitation, she believed that the extent of the visitation the grandparents were

requesting was not in the children's best interests. The Supreme Court held in Troxel that a

Washington state statute providing that any person may petition the courts for visitation at

anytime and that the courts may order visitation rights for any person when visitation may

serve the best interests of the child violated the substantive due process rights of the mother

                                               10
to make decisions concerning the care, custody and control of her children. Troxel, 530 U.S.

at 75, 120 S.Ct. at 2065.

¶35    Patrick also relies on this Court's decision in In re E.A.T., 1999 MT 281, 296 Mont.

535, 989 P.2d 860, for the proposition that parents have a fundamental liberty interest in

raising their children and that the associated rights must be protected by fair procedures.

Once again, E.A.T. dealt with a parent's rights regarding care, custody and control of children

and not with child support obligations. E.A.T. involved the termination of a mother's rights

because she continually failed to protect her child from sexual abuse by the child's father.

While Patrick is correct that parents have a fundamental liberty interest in parenting their

children, in the absence of proper care or support, a parent's wishes may be overridden by the

State's compelling interest in protecting the best interests of the children.

¶36     In this case, Patrick's fundamental liberty interests in parenting his children have not

been jeopardized. Only his decision to withhold child support for his children's needs have

been affected by the District Court's decision.

¶37    Accordingly, we hold that this Court's jurisprudence as set forth in Widhalm and

similar cases which hold that parents may never contract with each other regarding child

support and child custody, is consistent with United States Supreme Court jurisprudence and

the Due Process Clause of the Fourteenth Amendment.

                                          Damages

¶38    Debra requests that we award her damages pursuant to Rule 32, M.R.App.P., based

upon Patrick's appeal of the District Court's order "without substantial or reasonable

                                              11
grounds." As a general rule, this Court will not impose sanctions pursuant to Rule 32,

M.R.App.P., unless the appeal is entirely unfounded and intended to cause delay or unless

counsel's actions otherwise constitute an abuse of the judicial system. In re Marriage of

Moss, 1999 MT 62, ¶ 41, 293 Mont. 500, ¶ 41, 977 P.2d 322, ¶ 41 (citations omitted).

Although we did not rule in Patrick's favor nor grant him the relief he requested, the issues he

raised had merit and were not unreasonable. Therefore, we deny Debra's request for damages

pursuant to Rule 32, M.R.App.P.

¶39    Affirmed.

                                                           /S/ JAMES C. NELSON

We Concur:

/S/ KARLA M. GRAY
/S/ JIM REGNIER
/S/ TERRY N. TRIEWEILER
/S/ W. WILLIAM LEAPHART


/S/ JOHN W. WHELAN
District Judge John W. Whelan sitting for
Justice James A. Rice

/S/ MIKE SALVAGNI
District Judge A. Michael Salvagni sitting
for Justice Patricia O. Cotter




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