No. 83-08
I N THE SUPFSIIE C U T O THE STATE OF MONTANA
O R F
1983
I N IPE T E MARRIAGE O F
H
CINDY LUELLA McNEFF,
P e t i t i o n e r and Respondent,
and
TIMOTHY RAY McNEFF,
Respondent and A p p e l l a n t .
Appeal from: D i s t r i c t C o u r t of t h e N i n e t e e n 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 Countv of L i n c o l n
Honorable Robert M. H o l t e r , Judge p r e s i d i n g
Counsel of Record:
For A p p e l l a n t :
Donald L. S h a f f e r , Libby, Montana
For Respondent :
Sverdrup & S p e n c e r , Libby, Montana
S c o t t B . S p e n c e r , Libby, Montana
Submitted on b r i e f s . September 2 , 1983
Decided. D e c e m b e r 2 2 , 1983
P
clerk
Mr. Justice John Conway Harrison delivered the Opinion of
the Court.
This appeal is taken from a judgment modifying the
support provisions of a 1980 decree dissolving the marriage
of the parties. Appellant objects to the District Court
raising the amount owed for support of the minor children of
which respondent has custody.
Cindy Luella McNeff (hereinafter Mother) and Timothy
Ray McNeff (hereinafter Father) were married on June 22,
1972, in Laramie, Wyoming. Two children were born of this
marriage; Trevor Ray McNeff, now 10 years of age, and Camron
Zack McNeff, now 4 years of age. The marriage was dissolved
on July 28, 1980. Pursuant to the decree of dissolution,
Mother was granted custody of the children and Father was
given specific visitation rights. Mother did not have
visitation rights during two months in the summer. Father
was ordered to pay all debts of the marriage, all medical
expenses of the children and $100 per month per child to
Mother for their support. The total debt incurred during
the course of the marriage was over $32,000.
Two years later on July 29, 1982, Mother petitioned
the District Court for modification of visitation rights and
support payments. After a hearing held before Judge Robert
M. Holter, judgment was entered granting the relief
requested. The visitation rights of Mother during the
summer were provided for. Father's support obligation was
raised from $100 per month per child to $175 per month, but
Father was relieved from the obligation for the two months
he has custody. From that judgment this appeal is taken.
The sole issue raised by Father is whether the facts
of the case show a change of circumstances so substantial
and continuing as to make the amount of support payments set
forth in the 1980 decree of dissolution unconscionable and
allow the District Court to modify those terms.
Father properly sets forth the threshold which must be
met. In absence of a written agreement, a modification of
the child support terms in a decree of dissolution may only
be ordered, "[Ulpon a showing of changed circumstances so
substantial and continuing as to make the terms
unconscionable." Section 40-4-208(2)(b)(i), MCA. As there
was no written agreement between the parties, we submit the
facts to this statutory test.
The facts of the case are relatively uncontested.
Father must show that those facts clearly preponderate
against the District Court's ruling to gain reversal.
Reynolds v. Reynolds (Mont. 1983), 660 P.2d 90, 40 St.Rep.
321. That preponderance of evidence is necessary to
overcome the presumption that the judgment of the District
Court is correct. Jensen v. Jensen (1979) 182 Mont. 472,
597 P.2d 733. In addition, this Court views all the
evidence in a light most favorable to the prevailing party.
Nicolai v. Nicolai (Mont. 1981), 631 P.2d 300, 38 St.Rep.
1100.
The testimony elicited at the District Court hearing
showed that Mother had been employed when the decree of
dissolution was entered, but was unemployed when she filed
the petiton for modification. At the date of the hearing
she was temporarily employed, but her job was to terminate
in approximately two months. Mother's new husband was
providing most of the support for the children, as well as
making support payments of his own. She testified that even
with help from her new husband's income, the $100 per month
payments for each child is insufficient to properly care for
the children. And as she stated during the hearing, "[I]t
costs a lot [more] to buy a bag of groceries now than it did
two years ago."
Father testified that his net pay was between $1100
and $1200 per month. Under the terms of the decree he was
liable for all debts of the marriage; that amount originally
was over $32,000 and in the two years since the dissolution
was granted it had been reduced by over $11,000. Included
in this debt were payments for medical bills for the
children, a house trailer in which he now resides, and a
pickup which Mother was given in the decree. Father
testified that the low support payments set forth in the
decree were in exchange for his assuming all the debts of
the marriage. He further testified that he owes
approximately $5,000 more to his parents which should be
included in the marital debt. Father has not remarried.
This Court has refused to define the term
unconscionable as it is used in Section 40-4-208, MCA.
Green v. Green (1978), 176 Flont. 532, 579 P.2d 1235. Its
interpretation must be made on a case by case basis after
scrutinizing the underlying facts. Green, 176 Mont. at 539,
579 P.2d at 1238-1239. However, that interpretation must
begin with an objective standard. That standard is found in
the basic purpose behind support payments and how that
purpose is to be achieved. The purpose of ordering child
support payments is to " [MIake reasonable provision(s) for
spouse and minor children during and after litigation . . ."
Section 40-4-101(4), MCA. "Child support must reflect a
balance among the needs of the parties involved and the
ability of the parents to pay." Rome v. Rome (Mont. 1981),
621 P.2d 1090 at 1092, 38 St.Rep. 50 at 52. Thus the
determination of what is unconscionable is made by reference
to the relative position of the parties, and how close to
this balance the present arrangement is.
The District Court found on the facts presented that
the existing arrangement was unconscionable and we agree.
As the presiding judge noted, it is very difficult to
support a child on $100 per month. It became considerably
more difficult when Mother lost her job. It appears from
the transcript that the judge did not feel the proper
balance had been struck in the original decree, and when
Mother lost her job the balance shifted heavily toward
unconscionability. Father contends that Mother simply
losing her job is an insufficient change in circumstances to
allow modification under the statute. However, again this
change must be analyzed in light of the prevailing facts.
Here neither party is bathed in riches, and when the already
small amount available for the children's support is reduced
by even the slightest amount, it has great impact. The
District Court was entirely justified in finding that the
changed circumstances made the amount of support payments
unconscionable, and Father has failed to persuade us
otherwise.
We find that a preponderance of the evidence supports
the District Court's ruling and so hold.
Affirmed.
We concur:
PA&- d ( d ~
Chief J u s t i c e
-
Justices C/