PJo. 83-275
I N THE SUPREME COURT O THE STATE OF M N A A
F O T N
1383
I N R THE MARRIAGE O
E F
ALLEN MONROE TRIMP,
P e t i t i o n e r and Appellant,
-vs-
FiARRIET ANN TRIMP,
Respondent and Respondent.
APPEAL FROM: D i s t r i c t Court of t h e F i r s t 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 County o f Lewis & C l a r k ,
The H o n o r a b l e Henry L o b l e , J u d g e p r e s i d i n g .
COUNSEL O XECORD:
F
For Appellant:
Cannon & S h e e h y ; Edmund F . Sheehy, J r . , Helena,
Montana
For Respondent:
Ann L. Smoyer, H e l e n a , Hontana
S u b m i t t e d on E r i e f s : September 1 5 , 1 9 8 3
Decided: November 1 5 , 1 9 8 3
Clerk
Justice Frank B. Morrison, Jr. delivered the Opinion of the
Court.
Allen Monroe Trimp appeals the May 10, 1983 order of the
District Court of the First Judicial District, Lewis and
Clark County, denying his April 12, 1983 motion to modify
child support payments required of him.
The marriage of Allen Monroe Trimp (husband) and Ha-rriet
Ann Trimp (wife) was dissolved on February 25, 1983. The
decree dissolving the marriage approved and incorporated the
Custody, Support and Property Settlement Agreement
(Agreement) entered into by the parties that same day. The
relevant portion of the Agreement provided that as of March
of 1983, husband would pay child support of $350 per child
per month for each of the parties' two minor children,
payments to be made bi-weekly.
Husband made the March payments, but wrote wife at the
end of March to inform her that due to a decrease in pay, he
would no longer be able to make the $700 a month payments.
He offered to pay her $350 a month instead. Wife refused.
At the beginning of April, husband paid wife $200 as child
support rather than the agreed upon $350. Thereafter,
husband filed this petition to modify his child support
payments.
At the time the Agreement was entered into, husband was
earning a net monthly salary of $1422 as a bus driver for
Rimrock Stages of Billings, Montana. He supplemented that
salary with extra income earned from driving charter buses
and from repairing buses.
A hearing was held April 27, 1983 on husband's petition
to modify. Husband was the sole witness. He testified that
Rimrock Stages had switched from a salary pay plan to a wage
pay plan in the middle of March 1983. As a result, he was
receiving 19C per mile, driving 460 miles on each working day
and working a schedule of four days on, four days off, for a
total net pay of approximately $1100 per month. In addition,
his opportunities to drive charter had decreased as Rimrock
Stages had hired a full-time charter bus driver. The only
evidence presented in support of that testimony was husband's
pay stub for April 1 through April 15, 1983. His net income
for that two week period was $587. He presented no proof in
support of his allegation that the wage-based pay plan was
permanent.
Husband further testified that his $587 paycheck of
April 15, 1983 was spent as follows:
1. Rent $250
2. Child Support 200
3. Truck Payment 76
4. Television Payment 93
5. Montana Power 25
6. Medical Bill for Son 25
The only documentation of those expenses presented at the
hearing was a receipt indicating that his monthly rent,
including utilitites, was $250.
The parties agreed that wife's expenses had not changed
since the time the Agreement was entered into.
Section 40-4-208(2)(b), MCA, controls when a trial court
can grant a petition for modification of a child support
decree. It states in relevant part:
" (2) (b) Whenever the decree proposed for
modification contains provisions relating to
maintenance or support, modification .
. may only .
be made:
i upon a showing of changed cirucumstances so
substantial and continuing as to make the terms
unconscionable. "
Based upon the testimony set forth above, the trial
court held that husband's change in circumstances was neither
so substantial or continuing as to make the original child
support payments unconscionable. "This Court will reverse
the District Court on this issue only if the District Court's
findings are clearly erroneous in light of the evidence in
the record. Rule 52 (a), M.R.Civ.P. ; Reynolds v. Reynolds
(1982)(sic), Mont . , 660 P.2d 90, 40 St.Rep. 321."
Hughes v. Hughes (1983), 666 P.2d 739 at p. 741, 40 St.Rep.
1102 at p. 1105. That evidence must also be viewed in the
light most favorable to the prevailing party. PJicolai v.
Nicolai (19811, 631 P.2d 300 at p. 303, 38 St.Rep. 1100 at
p. 1103.
Viewing the evidence in the record in the light most
favorable to wife, we cannot say that the decision of the
trial court was clearly erroneous. The evidence indicates
that husband's bi-weekly pay check for the period April 1
through April 15, 1983 was approximately twenty percent less
than his bi-weekly pay checks were at the time husband
entered into the Child Support Agreement. - husband's
If
income is to remain permanently at this level and if
-
husband's net worth is not substantial, it would be
unconscionable to require him to pay 63% of his monthly
income as child support - he would then be unable to meet
if
his other financial obligations. However, husband has left
the trial court with too many "ifs".
Husband has failed to prove that his total financial
situation warrants a finding that his decrease in income
changed his financial circumstances substantially. Further,
he has totally failed to prove that the change would be
continuing. Thus, pursuant to section 40-4-208(2)(b), MCA,
the trial court acted correctly in denying husband's petition
for modification.
Affirmed.
W e concur:
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Chief J u s t i c e
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