                                            NO.    87-503

               I N THE SUPREME COURT O F THE STATE O F MONTANA

                                                  1988




I N RE THE SUPPORT O F
K. F .




APPEAL FROM:       D i s t r i c t C o u r t of t h e E i g h t h J u d i c i a l D i s t r i c t ,
                   I n and f o r t h e C o u n t y of C a s c a d e ,
                   T h e H o n o r a b l e J o e l R o t h , Judge p r e s i d i n g .

COUNSEL O F RECORD:

       For A p p e l l a n t :

                   C l a r y & C l a r y ; Thomas C l a r y , G r e a t F a l l s , Montana

       F o r Respondent:

                   B a i z & O l s o n ; K e n n e t h R.     O l s o n , G r e a t F a l l s , Montana




                                                  S u b m i t t e d on B r i e f s :   May 1 2 , 1 9 8 8

                                                     Decided:        June 1 4 , 1 9 8 8
           14
        "JUN
~i e d :-
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                                                  Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.

     The mother appeals an order of the District Court for
the Eighth Judicial District, Cascade County.     The court
denied the mother's requests for increased child support and
for income tax information from the father's farm corpora-
tion.   It ordered her to pay the attorney fees incurred by
the father. We affirm.
     The issues are:
      1. Did the District Court err in refusing to order the
father to produce the income tax returns of his farm
corporation?
      2. Did the court err in denying the mother's motions
filed after the denial of her request to require the father
to produce tax returns for the farm corporation?
      3. Did the court err in denying the petition to in-
crease child support?
      4. Did the court err in awarding the father his attor-
ney fees?
     The marriage of the mother and father was dissolved in
1978.   The mother was granted custody of their son, then 4
years old.    The father was ordered to p 1 child support in
                                         a7
the amount of $200 per month.
      In 1981, the father signed a relinquishment and consent
to adoption so that the son could be adopted by the mother's
second husband. Assuming that the adoption had taken place,
the father paid no child support and had no relationship with
the son for approximately five years. However, the mother's
second husband never adopted the boy, and the mother's second
marriage ended.   The mother's third husband is her attorney
in this action.
      The father is remarried and has three children by that
mararj-age. He i s a farmer.    In January 1985, he and his
brother incorporated their farm.      The father receives a
salary as farm manager, along with nontaxable benefits from
the corporation.
     In February 1986, the mother filed a petition for en-
forcement of prior child support and for increased child
support. She requested payment of back child support to the
date of the father's relinquishment.       The parents, both
represented by counsel, subsequently entered a stipulation
whereby the father would pay $1,000 per year for 5 years as
full satisfaction of back support owing, plus $125 per month
for current support, plus a $300, $600, or $900 lump sum each
January, with the amount of the lump sum depending on the
father's income for the previous year. The stipulation also
reestablished a visitation schedule for father and son.
     In late 1986 and early 1987, the mother began a series
of actions in which she tried to obtain the tax returns from
the father's farm corporation.    She argued that these were
relevant to the determination of the amount of child support
payable under the stipulation. The District Court disagreed,
ruling in May 1987 that the stipulation bases the lump sum
child support upon the father's income as reportable on his
personal tax returns. Those returns had been provided to the
mother.   The mother filed a motion to reconsider, to set
aside the agreement, or to determine child support.       The
court denied the motion and reaffirmed its prior ruling.
     In September 1987, the mother petitioned for increased
child support.     She also served interrogatories seeking
income tax information for the farm corporation. The father
refused to provide that information. A hearing was held at
which the father asked that the petition be dismissed because
it did not satisfy the provisions of S 40-4-208, MCA, govern-
ing modification of child support.     The court denied the
mother's claim for relief and ordered her to pay $ 2 9 7 . 0 9   for
the father's attorney fees. The mother appeals.
                                 I
     Did the District Court err in refusing to order the
father to produce the income tax returns of his farm
corporation?
     The stipulation entered by the mother and father
provided:

          MICHAEL further agrees that, for purposes of
     determining whether the additional support is to be
     paid, the income under all farming operations in
     which he is engaged, regardless of whether it is
     reported under his Social Security number or his
     spouse's Social Security number, together with all
     income he receives from other sources, reportable
     under his Social Security number, shall be used to
     determine the amount of income attributed to him in
     any given taxable year.
     In its May 1 9 8 7 order, the District Court interpreted
the above language to include all income reportable under the
father's social security number and all farm income reported
under his wife's social security number.     The court ruled
that the above language did not include nontaxable benefits
from the farm corporation to the father and his family. We
conclude that the court's ruling is supported by the plain
language of the stipulation.
     The court then found in its November 1 9 8 7 order, based
on the previous ruling, that the father had no obligation
under the stipulation to provide the mother with corporate
tax returns.   The mother argues that $ 40-4-204, MCA, re-
quires the court to consider all relevant factors in setting
the reasonable and necessary amount of support, and that
nothing could be more relevant than the father's income from
the corporation. However, as the District Court concluded,
an action for modification of child support is governed by
S40-4-208, MCA.   The standard for modification of child
support under that statute is a change in circumstances so
substantial as to make the present terms of support uncon-
scionable. The mother, aside from pleading under the wrong
statute, has made no allegations of substantial changes in
her own financial circumstances or those of the father. She
presented no evidence of such a substantial change of circum-
stances. We conclude that in this situation it was not error
for the court to deny the request for production.
                             I1
     Did the court err in denying the mother's motions filed
after the denial of her request to require the father to
produce tax returns for the farm corporation?
     After the District Court entered its May 1987 order
denying the mother's request for an order for production, the
mother filed three motions. One asked the court to reconsid-
er its ruling. The second asked the court to set aside the
stipulation for lack of consideration.      The third motion
asked the court to hold an evidentiary hearing for the pur-
pose of setting the amount of child support. The father did
not file responses to the motions. After hearing the argu-
ments of counsel for both sides, the court denied all three
motions without stating its reasons. The mother argues that
she is entitled to know the court's reasons for denying her
motions.
     As the father points out, the three motions were reiter-
ations of the arguments made prior to the order denying the
request for production. When post-trial motions are based on
questions about the court's discretionary rulings and no new
facts are raised, it is not required that the opposing party
file objections in order for the court to affirm its ruling.
Matter of Adoption of S.E. (Mont. 1988), -              ,
                                                 P.2d - 45
St.Rep. 843.   We hold that the denial of the mother's motions
was not error.


     Did the court err in denying the petition to increase
child support?
     In September 1987, the mother filed her petition to
increase child support, citing S 40-4-204, MCA.    A hearing
was held, at which the mother's counsel argued that $125 per
month is not enough support for a 14 year old boy.       The
mother argues on appeal that the court should have held an
evidentiary hearing on her petition and should have found
that   the  $125  per   month under    the   stipulation is
unconscionable.
     Although she had the opportunity at the hearing on her
petition, the mother produced no evidence demonstrating
changed circumstances between the time the stipulation was
signed and the time her petition was filed. Given the ab-
sence of proper pleadings, and the absence of any allegation
or proof of changed circumstances as required by 5 40-4-208,
MCA, we hold that the court did not err in denying the peti-
tion to increase child support.

     Did the court err in awarding the father his attorney
fees?
     The court's finding on attorney fees was:

         Petitioner's motion is the third attempt in
    six months to extract more money from respondent
    than that to which she is entitled under the agree-
    ment she freely entered into on June 13, 1986. It
    is noted that petitioner's attorney is, also, her
    husband. While the court does not speculate as to
    the issue of petitioner's attorney fees, the court
    does acknowledge that respondent is forced to
    retain counsel and incur costs each time this
    matter is brought before the court.     On previous
    occasions the court has refused to order petitioner
    to pay respondent's attorney fees and costs.    Due
    to the history of this case, the insufficiency of
    petitioner's pleadings and proof and the need for
    finality in judgments in this type action, the
    Court finds that it is appropriate to order peti-
    tioner to pay respondent's reasonable attorney's
    fees and costs.
The mother argues that the award of attorney fees to the
father is unsupported by any basis in law. However, a dis-
trict court has the equitable power to order attorney fees
when justice so requires.    Holmstrom Land Co. v. Hunter
(1979), 182 Mont. 43, 48, 595 P . 2 d 360, 363. We conclude
that this is such a case.   The mother has made repetitive
claims on issues already decided by the court. We hold that
the District Court did not abuse its discretion.
    Affirmed.
