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Marriage of Durbin12/19/1991
Rehearing Denied January 16, 1992.
48 St.Rep. 1142
Submitted September 18, 1991.
Terri D. Durbin, now known as Terri D. Ward (Terri), appeals the November 1, 1990 findings of fact, conclusions of law, and order of the Tenth Judicial District Court of Fergus County, Montana, which denied her cross-petition for modification of child support , denied her attorney fees and costs, and granted Edwin Durbin (Ed) a tax exemption for their son, Aaron. We reverse and remand.
Terri presents the following issues:
1. Did the District Court err in failing to modify child support payments to reflect change of circumstances, the children's ages, the standard of living the parties' minor children would have enjoyed had the marriage not been dissolved, and Ed's ability to pay increased child support?
2. Should Terri be awarded attorney fees and costs incurred in responding to Ed's petition for modification, and further, should she be awarded attorney fees and costs of appeal?
3. Did the District Court improperly allow Ed to claim a tax deduction for Aaron while not ordering him to pay any child support ?
I.
Terri married Ed on December 27, 1975, in Lewistown, Montana. The couple had two children, Aaron born July 9, 1976, and Shelley, born November 3, 1979. On November 5, 1986, the couple divorced. The divorce decree 1) awarded the couple joint custody of the children, 2) awarded Terri primary physical custody of the children, 3) awarded Terri and Ed one tax deduction each for the children, and 4) required Ed to pay Terri monthly child support totaling $150 per child, except for two months in the summer, where he was to pay monthly child support totaling $75 per child.
On December 18, 1986, Ed lost his sight as a result of a work-related accident. Thereafter, Ed began to receive monthly Workers' Compensation benefits of $820. In June or July 1987, Ed received from his employer's Fireman's Fund disability insurance policy a lump sum payment of $5,000; he also began to receive monthly payments of $87 from this policy. In June 1987, Ed began to receive monthly Social Security benefits, which reduced the amount of monthly Workers' Compensation benefits he received. At this time, Ed's total monthly income, including Workers' Compensation benefits, Social Security benefits, and Fireman's Fund disability benefits was $1154.
In June 1987, Terri, on behalf of the children, began to receive monthly Social Security benefits totaling $174 per child. Ed ceased paying Terri child support at this time. Ed testified that he believed the Social Security benefits on behalf of the children served as a credit toward his child support obligation.
In December 1989, Terri received a degree in accounting from Eastern Montana College. In January 1990, she secured employment as a staff tax accountant in Portland, Oregon. She financed her schooling with student loans, totaling $11,539 as of June 1990. Terri's adjusted gross income was $11,759 in 1988 and $9,765 in 1989. In 1988 and 1989, Terri took tax deductions for both children on her income tax returns as she was able to prove to the Internal Revenue Service that she was providing over half of the children's financial support.
In May 1990, Ed received a lump sum settlement for his injuries totaling $373,557 after costs, expenses, and attorney fees. Additionally, as part of a structured settlement, Ed began receiving monthly payments of $3788 in July 1990, these payments guaranteed to continue for thirty years.
On May 21, 1990, Terri filed an action for an order to show cause in Ore
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