MARRIAGE OF CLYATT
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No. 94-226 IN THE SUPREME COURT OF THE STATE OF MONTANA 1994 IN RE THE MARRIAGE OF TERI LYNN CLYATT, Petitioner and Respondent, and EUGENE GIBSON CLYATT, Respondent and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable John S. Henson, Judge presiding. COUNSEL OF RECORD: For Appellant: Christopher Daly, Missoula, Montana For Respondent: Douglas G. Skjelset, Missoula, Skjelset Law Offices, Montana Submitted on Briefs: Decided: Filed: August 11, 1994 October 13, 1994 Chief Justice J. A. Turnage delivered the Opinion of the Court. Eugene Clyatt, Jr., appeals from the denial of his motion to modify his child support obligations by the Fourth Judicial District Court, Missoula County. We affirm. The issue is whether the District Court abused its discretion in denying Eugene's motion to modify his child support obligations. Teri Clyatt and Eugene Clyatt, Jr., were married in July, One child was born of this marriage, Amanda Jean Clyatt. 1987. Teri and Eugene were divorced in January, 1992. The District Court granted joint custody and appointed Teri primary residential parent. The court ordered Eugene to pay Teri $300 per month for child support. Eugene made the required payments fror, the divorce decree until July, 1993. the time of He failed to make support payments for the months of July, August, September, and October of 1993. Eugene also failed to pay for one-half of his daughter's medical expenses for which he was responsible. Teri moved the District Court to order Eugene to show cause why he should not be held in contempt of court for his failure to pay child support. Following a hearing, the court found Eugene in contempt of court for failing to pay his child support obligations. Eugene then moved the District Court to reconsider its contempt of court ruling and to modify his child support obligation. denied both motions. The court Eugene appeals only the court's denial of his motion to modify the child support obligation. 2 The District Court based its decision on the following facts. Prior to and immediately following the divorce, Eugene worked for his father at Clyatt Construction Company. While employed at Clyatt Construction, Eugene had sufficient income to pay the $300 per month child support obligation. He voluntarily quit his job with Clyatt Construction due to personal problems between him and his father. ment, Eugene did not seek alternative construction employ- despite having experience and expertise in that field. Rather, he enrolled in college at the University of Montana. Eugene worked part-time at McDonald-Armstrong Investment, Limited, earning a net income of approximately $460 per month. with his parents and paid no rent. He lived Bis parents paid for his college tuition. * * * Did the District Court abuse its discretion when it denied Eugene's motion to modify his child support obligation? Eugene argues that the District Court should have modified his child support obligation. modified, Before a child support obligation can be a party must establish that there are changed circum- stances so substantial and continuing as to make the terms of the existing agreement unconscionable. Section 40-4-208(2)(b), MCA. The District Court found that no substantial and continuing change in circumstances existed. As such, the court did not address whether the alleged changed circumstance rendered the terms of the agreement unconscionable. 3 We will not disturb the District Court's ruling absent a clear abuse of discretion. In Re the Marriage of Durbin (1991), Mont. 51, 55, 823 P.2d 243, 245. 251 This Court gives great deference to the trial court's judgment, presuming its decision to be correct. In Re the Marriage of Carlson (1984), 214 Mont. 209, 214, 693 P.2d 496, 499. The District Court found that Eugene did not show a substantial and continuing change in circumstances. There is sufficient evidence in the record to uphold this finding. Eugene voluntarily quit his employment with Clyatt Construction and did not actively seek other employment in the construction field. is a skiiied carpenter, Eugene admits he yet he chose to return to schooi rather than remain employed in the construction business. Eugene's current employment condition was clearly of his own making. When an individual voluntarily decreases his or her ability to pay child support, it is up the district court to determine whether there has been a substantial and continuing change in circumstances. In In Re the Marriage of Rome (1981), 190 Mont. 495, 497, 621 P.2d 1090, 1092, the father voluntarily left his employment in the hardware business and began a less lucrative career in the logging industry. In upholding the district court's denial of the father's motion to modify his child support payments, this Court stated: Although we hold that a reduction in ability to pay brought about through a voluntary change in circumstances is not, in itself, sufficient to mandate a modification of support, neither do we approve the view that selfimposed changes can never be considered as reasons for 4 modification. The better approach is to allow the judge to consider the nature of the changes and the reasons for the changes, and then to determine whether, under all the circumstances, a modification is warranted. Rome -I 621 P.2d at 1092. There is substantial evidence in this case that Eugene voluntarily terminated his employment with Clyatt Construction and did not attempt to procure substitute employment in the field in which he was skilled. It therefore was within the discretion of the District Court to determine that no substantial and continuing change in circumstances existed. District courts should consider several factors when determining whether a parent can meet his or her current child support obligations or if such support obligations should be modified, including: (1) The parent's ability to earn an income: (2) The parent's willinqness to earn an income and support his child: (3) The availability of jobs: (4) The parent's use of his funds to provide himself only with the bare necessities of life prior to providing support for his child. In Re the Marriage of Callahan (1988), 233 Mont. 465, 469, 762 P.2d 205, 208 (emphasis added). able to earn The record indicates that Eugene was an income sufficient to pay his child support obligation while working at Clyatt Construction. likewise reflects his unwillingness The record to support his child by voluntarily quitting his construction job and returning to school. Taking these factors into consideration, the District Court did not 5 abuse its discretion in finding that Eugene's choice to quit his job and subsequently return to school did not constitute a substantial and continuing change in circumstances. Eugene argues that the District Court erred in not making a finding concerning argument. unconscionability. We find no merit in this This Court recently indicated that a change in circum- stances and unconscionability are two distinct factors which must be independently (Mont. 1994), established. In In Re the Marriage of Barnard 870 P.2d 91, 51 St.Rep. 173, we stated: It is obvious that Timothy's financial success constitutes a change in circumstance. However, this fact, by itself, does not render the prior child support award unconscionable. Barnard, 870 P.2d at 93-94. Changed circumstances and unconsciona- bility are clearly two separate factors that the court can address independently of each other. Section 40-4-208(2)(b), MCA, likewise suggests that a finding of changed circumstances is a prerequisite to any inquiry into the unconscionability of the agreement: 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 . . . . Absent a finding of changed circumstances, the court's analysis need go no further. Only surrounding support the child after finding that the obligation have substantially 6 circumstances and continually changed must the court make a determination concerning unconscionability. The District Court denied Eugene's motion for modification of his child support obligation because it found no substantial and continuing change in circumstances. The District Court stated: The Court finds that [Eugene] has shown little initiative to provide support for his child, despite his contentions to the contrary. While his stated goal of furthering his it does not override his education is commendable, obligation to provide his child with support, nor constitute chansed circumstance. (Emphasis added.) We conclude that the court did not abuse its discretion in finding that no substantial or continuing change in circumstances existed. We therefore affirm the decision of the District Court. We need not address Eugene's argument regarding 5 40-4-204, MCA. Section 40-4-204(3)(a), MCA, states: 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 . . . . Since we conclude that the District Court properly denied modification of the child support obligation, the child support guidelines do not come into effect. Court. We affirm the decision of the District We concur: Justices Justice Terry N. Trieweiler dissenting. I dissent from the majority opinion. I would reverse the judgment of the District Court. Although the record in this case is less than satisfactory, it must be pointed out that due to his economic circumstances, Eugene proceeded pro se at all times prior to the District Court's order which held him in contempt for failure to pay child support. There is no indication that he was represented when Teri filed her petition for dissolution, or when he signed the property settlement agreement which the basis formed January 7, 1992, decree. for the District Court's Finally, he was unrepresented at the only hearing held in this matter on October 12, 1993. However, even the uninformed testimony given at that hearing established a parties' change in circumstances since the date of the dissolution decree which was so substantial that his original child support obligation was unconscionable. The District Court's failure to modify the support obligation was unsupported by substantial evidence, and therefore, an abuse of discretion. The uncontroverted evidence established that at the time he consented to the dissolution decree, Eugene worked as a carpenter for his differences father's with construction his business. father, they mutually However, agreed due to to the termination of his employment shortly after the decree was entered. Eugene testified, without contradiction, that from January 1992 until the date of his hearing, his gross income was $7973.60, while 9 his child automobile, no Eugene his savings, and never worked had father. realized obligation support After that construction there were well as his returned to school time the of Eugene was working hour. His net At the obligation be conform a the He was Instead, on finding him support and executing a his wife's amount of within 15 his on in assignment $15.50; and based was a could do in in the of held pay his repay court he the be he few his, himself, SO in this earning case, that his reduced and that purge the medical District for per support income, the of of past-due Court failure himself amount amount his $5.25 to court more. 1993, in father, would week, Guidelines, he 8, than month. Support that: fees hours per contempt attorney that on November his reeducate modified, to no but it he other Missoula, proposed which had student. 24 $460 unable ordered wage hearing in that that anyone with hearing, Eugene Child schedule obligation. order only temporarily to establish of decided full-time was for employment a He assets. carpenters he McDonalds income time his interest as $5380. carpenter best the at a numerous child's, he other as Therefore, jobs. as At no terminating was alone $300 entered to from pay its child contempt per month: $242.50; pay in the amount provides in relevant bills support costs of in by pay the $327.50 days. Section 40-4-208(2)(b), MCA, follows: 10 part as Whenever the decree proposed for modification contains provisions relating to maintenance or support, modification under subsection (1) may only be made: upon a showing of changed circumstances so (i) continuing as to make the terms substantial and unconscionable . . . . A district court's decision to modify or deny modification of a child support obligation is reviewed for an abuse of discretion. In this case, I conclude there clearly was an abuse of discretion when, under the above circumstances, the District Court found that Eugene was capable of making child support payments in the amount of $300 per month: and that he quit his carpentry job only because he did not enjoy it. The District Court made no specific findings regarding a change in circumstances or the conscionability of Eugene's child support obligation--the factors to be considered under 3 40-4-208, MCA. However, in the court's later opinion and order denying Eugene's motions for reconsideration and modification, the District Court stated: The Court finds that the respondent has shown little initiative to provide support for his child, despite his contentions to the contrary. While his stated goal of furthering his education is commendable, it does not override his obligation to provide his child with support, nor constitute changed circumstance. Other fathers in similar circumstances have been diligent enough to pursue an education and provide for their children. Such is not beyond the ability of the respondent. To the extent that these remarks by the District Court constitute its findings, they were also clearly erroneous and unsupported by any evidence in the record. 11 The evidence was that Eugene had borrowed substantial amounts of money since going back to school in an effort to make child support payments, but was apparently unable to continue doing so. With no assets, assuming that Furthermore, that should not be surprising. what other fathers had done under similar circumstances may have been relevant, there was simply no evidence of what any other father had done. The majority terminates income, his concludes employment, that when a person voluntarily and thereby sustains a reduction in it is completely up to the district court's discretion to determine whether a modification is warranted. discretion is not unlimited. Where, However, that as in this case, there were sound reasons for Eugene's termination of his employment, and sound economic reasons for his reeducation, this Court has not served anyone's best interest by punishing him for seeking the reeducation Where he needs. a parent makes reasonable progress toward reeducation with the objective of improving his earning capacity, it is in both his best interest, and the long-term best interest of his child, that he be encouraged, not discouraged, from doing so. The District Court has imposed a harsh obligation which Eugene is unable to meet. However, there will be little benefit to his child from his incarceration. Court in The alternative is that he go to jail. their Any pride taken by the District Court and this assumption that they have enforced another recalcitrant father's child support obligation is unfounded. This decision will, in the long term, punish the very child it seeks to 12 benefit. The District Court's decision, and this Court's opinion affirming that decision, are shortsighted and serve no one's best interest. For these reasons, I would reverse the judgment of the District Court. 13
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