CUSTODY SUPPORT OF H Q T Q
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No. 84-530 I N THE SUPREME COURT O F T H E S T A T E O F MONTANA 1985 I N RE THE CUSTODY AND SUPPORT O F H . Q. a n d T . Q . 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 a n d 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 R . D. K c P h i l l i p s , Judge p r e s i d i n g . COUNSEL O F RECORD: For Appellant: J a r d i n e , S t e p h e n s o n , B l e w e t t & Weaver; K . Schwanke, G r e a t F a l l s , Montana Dale For Respondent: Clary & Clary; Thomas C l a r y , G r e a t F a l l s , Montana S u b m i t t e d o n briefs: Aug. Decided: Filed: OCT 2419%' f C l emk ar P P 15, 1985 O c t o b e r 2 4 , 1985 L.C. M. J u s t i c e r Court. The Gulbrandson delivered appellant, appeals father, Court District of County, denying custody and the his Eighth requests reduction of from Judicial for child Opinion the an modification the of order District, support of the Cascade of child obligations. We affirm. The f a t h e r and m o t h e r joined at ( a l s o r e f e r r e d t o a s respondent) i n a p r o p e r t y s e t t l e m e n t and c h i l d c u s t o d y a g r e e m e n t time the their divorce decree a d v e r s a r y h e a r i n g on May 2 7 , was 1982. entered without an The a g r e e m e n t p r o v i d e d t h e p a r t i e s would have j o i n t c u s t o d y o f H.Q. and T.Q., their minor c h i l d r e n , w i t h t h e m o t h e r t o h a v e r e s i d e n t i a l c u s t o d y . The c h i l d r e n would b e w i t h t h e i r f a t h e r o n e n i g h t e a c h week, every other agreement prior to weekend, contained visits and two provisions during the months each about week, the the summer. The required mother's notice visitation d u r i n g t h e summer, h o l i d a y v i s i t a t i o n s , and an a l t e r n a t e p l a n if either parent should leave Great Falls, Montana. The f a t h e r a g r e e d , and was o r d e r e d , t o p a y c h i l d s u p p o r t o f $ 2 0 0 1982, a t which t i m e t h e p e r month p e r c h i l d u n t i l December s u p p o r t would i n c r e a s e t o $ 2 5 0 p e r month p e r c h i l d . The f a t h e r l o s t h i s j o b a b o u t November 1982 and d e c i d e d H e c o n t a c t e d t h e mother t o t o e s t a b l i s h h i s own b u s i n e s s . arrange a d e f e r r a l of him some reached time an c h i l d s u p p o r t and s h e a g r e e d t o g i v e t o make agreement on period of t i m e involved. the father's bank the the payments. amount However, t o be they deferred never or the I n March 1983, t h e m o t h e r l e v i e d on accounts for past due amounts. He responded by requesting modification his of support o b l i g a t i o n and v i s i t a t i o n p r i v i l e g e s . The i n h i s support f a t h e r c o n t i n u e d t o be d e l i n q u e n t payments. In proceedings June and 1983, the mother attorneyfs requested initiated fees and contempt the father requested exclusive custody of t h e children. t h e course of Over h e a r i n g s i n August, September and O c t o b e r 1 9 8 3 , b o t h t h e p a r t i e s and t h e i r w i t n e s s e s t e s t i f i e d about t h e p a r e n t s f d i f f i c u l t i e s with each o t h e r . the mother drank to excess, The f a t h e r neglected the contended that children, and p e r s i s t e n t l y v i o l a t e d t h e s p i r i t and i n t e n t o f the custody that, pay in their agreement. a d d i t i o n t o a r e d u c t i o n of in child three provisions testified He income, h i s a b i l i t y t o s u p p o r t had new s u b s t a n t i a l l y changed b e c a u s e h e had dependents; a m a r r i a g e , and a new baby. new w i f e , a son from an The m o t h e r produced e v i d e n c e t h a t he had more t h a n a d e q u a t e e a r n i n g s t o pay c h i l d the first half uncooperative, schedules. witnesses other of 1983 and inconsiderate Each parent testify, parent's about wrongdoing earlier and testified not several and that prompt testified, on was visitation own s p e c i f i c i n s t a n c e s of the his had he their about and support i n or her own good parenting s k i l l s . In its order filed June 1, 1 9 8 4 , t h e District Court found t h a t n e i t h e r p a r e n t was u n f i t a l t h o u g h e a c h a t t e m p t e d t o use the children t o aggravate t h e other. The D i s t r i c t C o u r t a l s o found t h a t t h e c u s t o d y a r r a n g e m e n t a g r e e d on by t h e p a r e n t s remained a d e q u a t e and i n t h e b e s t i n t e r e s t s o f the children and t h e r e was no showing t h a t the children's p r e s e n t e n v i r o n m e n t e n d a n g e r e d t h e i r p h y s i c a 1, mora 1 , menta 1 o r emotional health. The f a t h e r was found t o have s u f f i c i e n t income t o pay a l l p a s t c h i l d s u p p o r t and t o c o n t i n u e p a y i n g the agreed S 40-4-219, MCA, appropriate. should amount. be The court no m o d i f i c a t i o n of concluded that, under t h e c u s t o d y d e c r e e was The o r d e r s t a t e d t h a t a l l b a c k s u p p o r t payments made within thirty days. The order required s p e c i f i c b e h a v i o r o f e a c h p a r t y and s t a t e d t h e c o n s e q u e n c e s f o r any f a i l u r e t o f o l l o w t h e o r d e r . The f a t h e r r a i s e s two i s s u e s on a p p e a l : (1) Whether t h e D i s t r i c t C o u r t a b u s e d i t s d i s c r e t i o n i n f a i l i n g t o g r a n t h i s m o t i o n t o modify c h i l d c u s t o d y ? Whether t h e D i s t r i c t C o u r t a b u s e d (2) its discretion by d e n y i n g h i s motion t o modify h i s c h i l d s u p p o r t o b l i g a t i o n ? This Court w i l l not reverse a determination of child c u s t o d y a b s e n t an a b u s e o f d i s c r e t i o n by t h e d i s t r i c t c o u r t . Gilmore v. Gilmore S e c t i o n 40-4-219, (1975), 166 Mont. 47, 530 MCA p r o v i d e s : (1) The c o u r t may i n i t s d i s c r e t i o n modify a p r i o r c u s t o d y d e c r e e i f it f i n d s , upon t h e b a s i s o f f a c t s t h a t have arisen s i n c e the p r i o r decree o r t h a t w e r e unknown t o t h e c o u r t a t t h e t i m e o f e n t r y o f t h e p r i o r d e c r e e , t h a t a change has occurred i n t h e circumstances of t h e c h i l d o r h i s c u s t o d i a n and t h a t t h e modification is necessary t o serve t h e b e s t i n t e r e s t o f t h e c h i l d and i f it further finds that: fc) the child 's present environment endangers s e r i o u s l y h i s p h y s i c a l , mental, m o r a l , o r e m o t i o n a l h e a l t h and t h e harm l i k e l y t o b e c a u s e d by a c h a n g e o f is outweighed by its environment a d v a n t a g e s t o him; ... P.2d 480. In order to prevent recurring litigation, S 40-1-219, MCA "places a heavy burden on the person seeking to modify a prior custody decree." Groves v. Groves (1977), 173 Mont. 291, 298, 567 P.2d 459, 463. The District Court received evidence regarding conduct that occurred prior to the decree and on facts which arose after the initial decree. This included evidence on changes in the lives of both parents. lengthy and conflicting present environment. The District Court listened to testimony about the children's No abuse of discretion occurred when the District Court found no endangerment to the children in their present environment. Our review of the record shows substantial evidence to support the decision. The father also challenges the District Court's refusal to lower his child support obligation. MCA, allows modification of Section 40-4-208, support for installments due after the request "upon a showing of changed circumstances so substantial and unconscionable P.2d continuinq ..." as to make the terms In Hughes v. Hughes (Mont. 1983), 666 739, 741, 40 St.Rep. 1102, 1105, we reversed a district court's modification of child support and remanded for a determination of the continuing nature of the change in the father's circumstances. The father in Hughes requested a reduction of support payments on the grounds that his job had terminated, he was unemployed reduction of income. He and started consequently he his own had business a and anticipated that it would take three to six months to rebuild it. We stated that the reduction in income for this relatively short period of time was not so continuinq as to make the original agreement unconscionable. In the case at bar, the District Court found that despite the father's job loss he had payments. sufficient current income to make the agreed This is consistent with the statements in Hughes, that a temporary reduction of income is not a continuing change so as to make prior terms on support unconscionable. We hold that the District Court did not abuse its discretion by refusing to lower the father's child support obligation. Affirmed. We concur: R , ' , ,* ; '
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