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No. 85-89
IN THE SUPREME COURT OF THE STATE OF MONTANA

1985
IN RE THE MARRIAGE OF
KARL A. GIES,

Petitioner and Respondent,

ELSIE L. GIES,
Respondent and Appellant.

APPEAL FROM: District Court of the Tenth Judicial District,
In a.nd for the County of Petroleum,
The Honors-ble Peter Rapkoch, Judge presiding.

COUNSEL OF RECORD:

For Appellant:
Linda L. Harris, Billings, Montana

For Respondent:
Jon A. Oldenburg, Lewistown, Montana

Submitted on briefs: July 11, 1985 Decided: November 12, 1985
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Mr. Justice William E. Hunt, Sr., delivered the Opiniorl of
the Court.

Elsie Gies appeals from a decree of the District Court
of the Tenth Judicial District, Petroleum County, which
modified a child support order.

We affirm.

The appellant raises two issues on appeal. The first is
whether the District Court erred in failing to partition the
parties' real property. The second is whether the District
Court erred in changing the method by which the child support
obligation is calculated.

As to the first issue, we hold that the doctrine of the
"law of the case" applies. That doctrine provides that where
a decision has been rendered by the Supreme Court on a
particular issue between the same parties in the same case,
such decision is binding on the parties and the courts and
cannot be relitigated in a subsequent appeal. Belgrade State
Bank v. Swainson (1978), 176 Mont. 444, 446, 578 P.2d 1166,
1-167. This case was before this Court last year in In re the
Jqarriage of Gies (Mont. 1984), 681 P.2d 1092, 41 St.Rep.
1028. That appeal resulted in an affirmance of the District
Court's finding that partition of the parties' real property
would produce hard feelings and adversely affect salabj.1-ity
of property. Gies, 681 P.2d at 1093. We hold the first
issue raised by appellant falls within the doctrine of the
law of the case and we do not address that issue.

The second issue, regarding modification of child
support, does raise new matter, and requires a brief factual
discussion. The District Court dissolved the parties'
marriage by decree entered April 15, 1980. The decree

incorporated the settlement agreement of the parties, which

provided for child support as follows:

The Petitioner [Karl] shall pay to the Respondent

TElsie] the sum of $150.00 a month, for each child,
until such time as each child becomes of legal age,
marries or is otherwise emancipated.

The Petitioner shall also pay the Respondent an
additional 10% in each child's support, commencing
Zanuary 1, 1981, and each year thereafter, to cover
the inflationary cost of living for each child.
The additional 10% cost of living shall be
terminated when each child becomes of legal age,
marries or is otherwise emancipated. This
additional sum shall also cease if inflation ceases
in our economy or if the United States enters a
period of depressi.on.

After paying the support obligation for the years 1980

through 1984, Karl Gies petitioned the District Court to

amend and modify the decree and dissolution.

The District Court in its findings of fact, found:

4. That said child support provision is unreasonably vague, undefined and unascertainable, in that there is no objective criterion prescribed, Sy which to measure the fact or a-mount of inflation, deflation or depression and it is therefore impossible to determine the amount of child support required to be paid by the Petitioner to the Respondent at any particular time.
6. That it is generally accepted and the Court
hereby takes judicial notice of the fact that
inflation has decreased below the rate of inflation
in existence at the time of the Decree.

Based upon its findings of fact, the Court concluded:

3.
That the provisions of the Settlement Agreement of the parties and therefore the Decree heretofore entered no longer apply with reasonableness and justice to the situation and circumstances of the parties herein and should. therefore be amended . .

4.
That the level of child support of the payment
of which the Petitioner is obligated should be
changed to the sum of $300.00 per month, being
$150.00 per month per child, the amount thereof to
be increased or decreased according to the rate of
inflation from that point, according to the United
States Department of Labor Consumer Price Index, as
shown on January 1 of each year.



On the issue of modification of child support, this

Court will reverse the District Court only if the findings of
the District Court are clearly erroneous in light of the
evidence in the record. Johnson v. Johnson (~ont. 1983), 667

The relevant statute is 40-4-208, MCA. That statute provides:
(1) . . . a decree may be modified by a court as to maintenance or support only as to installments accruing subsequent to the motion for modification.
(2)(b) 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 . . . .
The District Court's decision does not violate the
statute. First, the ruling is prospective only. The
decision makes no attempt to modify payments already made by
petitioner for the years 1981 through 1984, but only affects
payments accruing subsequent to the motion for modification.

Second, the decision is based upon a substantial and continuing change of circumstances. The inflation provision of the decree invites disagreement and confusion. The District Court judge recognized this when he found that the provision was "unreasonably vague, undefined, and unascertainable," and that it was "impossible to determine the amount of child support to be paid by the Petitioner . . .." By tying the increase in support to the Consumer Price Index, the District Court judge clarified a vague and troublesome provision.
This Court has recognized that a modification is
warranted to clarify a vague provision that has become

unworkable. In In re the Marriage of Smith and Smith (Mont.
1984), 692 P.2d 1221, 41 St.Rep 2325, the original
dissolution decree granted the husband reasonable visitation
rights. The parties continually disagreed as to what
constituted reasonable visitation. The District Court
clarified the provision by defining reasonable visitation as
every other weekend from 4:00 p.m. Friday through 8:00 p.m.
Sunday. We affirmed the modification.

Although that case dealt with visitation and the case at
bar deals with support, the two cases are analogous. When a
provision becomes vague and unenforceable, the District Court
has the power to clarify the provision so long as the
intention of the parties is given effect. Here, the base
amount of support remains unchanged at $300.00 per month.
The parties intended the inflation provisions "to cover the
inflationary cost of living for each child." The effect of
the new provision is to clarify the ambiguous inflation
component of Karl's obligation, and to clearly establish a
level of support which covers the inflationary cost of living
for each child. We find no error.

Affirmed.

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We Concur:

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