Marriage of Uphus v. Uphus

No. 85-411
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986

IN RE THE MARRIAGE OF
JEANNE M. UPHUS,
Petitioner and Appellant,

MICHAEL J. UPHUS,
Respondent and Respondent.

APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable Arnold Olsen, Judge presiding.

COUNSEL OF RECORD:

For Appellant:
Richter & Associates; Jack E. Sands, Billings,
Montana

For Respondent :
J. Brian Tierney, Butte, Montana

Submitted on Briefs: Jan. 9, 1986
Decided: June 3 , 1986

Filed:
'JUN 3 - 1986

Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.

Jeanne Uphus (Sands), appeals a Silver Bow County
District Court order which reduced the amount of child
support that she receives each month from respondent, Michael
Uphus. The issues on appeal are whether there are changed
circumstances so substantial and continuing as to render the
original decree of dissolution unconscionable and to support

a modification of that decree; whether the District Court's
findings of fact and conclusions of law are sufficient; and
whether the District Court impermissibly, retroactively
modified the child support provisions of the original decree.
We affirm the District Court.
Appellant and respondent were joined in marriage in
February, 1 9 7 1 . They are the parents of two children. In
January 1 9 8 1 appellant filed a petition for dissolution of
marriage. In April 1 9 8 1 the Silver Bow County District Court
issued a decree of dissolution dissolving the marriage. The
decree granted custody of the children to appellant during
the children's school months and to respondent during the
summer months. The decree ordered that respondent initially
pay appellant $100 per month per child during the months
appellant had custody. The decree increased the obligation
to $ 1 5 2 per month per child after the respondent payed off a
loan.
In December 1983 appellant filed a petition alleging
that respondent was three months behind in his child support
payments, and as a result, the District Court found
respondent to be in contempt of court. In May 1984

respondent, alleging that he was unemployed, petitioned the
District Court for a modification of his child support
obligation. In May 1984 the District Court found tha.t
respondent was unemployed and it modified the original decree
of dissolution by ordering respondent to pay $50 per month
per child for child support. The court provided that it
would reexa.mine respondent ' s ability to pay child support
following the May 1985 payment. The court further ordered
respondent to pay $25 per month, and $250 from his income tax
return, to reduce his accumulated arrearage in support
payments. Appellant did not appeal the May 1984 order.
In May 1985, the District Court held a hearing to
reexamine respondent's ability to pay child support. In June
1985, the court issued its findings of fact and conclusions
of law. The court found that both parties had remarried and
that both parties, and their spouses, are employed. The
court also considered the changed circumstances since entry
of the original decree of dissolution and ordered respondent
to pay $100 per month per child for child support and $25 per
month toward the support arrearages. The court further
ordered that when the arrearage was paid off, respondent
would pay child support of $112.50 per month per child. The
order modifies the original decree by reducing the child
support payments by about $40 per month per child. This
appeal followed.
The first issue is whether the original decree of
dissolution is unconscionable because of changed
circumstances so substantial and continuing as to warrant a
modification of that decree. Section 40-4-208, MCA, provides
in pertinent part:
(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 modified the decree under this subsection
of the statute. This Court has stated the standard of review
many times. To gain reversal of the District Court,
appellant must show that in light of the evidence in the
record the findings of the District Court are clearly
erroneous. Rule 52 (a), M.R.Civ.P. ; Reynolds v. ~eynolds
(Mont. 1983), 660 P.2d 90, 93, 40 St.Rep. 321, 324.
Appellant must demonstrate a clear abuse of discretion by the
District Court and she must overcome the presumption that the
District Court's judgment is correct. Reynolds, 660 P.2d at
93; citing Grenfell v. Grenfell (1982), 200 Mont. 490, 491,

Here, there are changed circumstances since the entry
of the original decree. Both parties have remarried and the
wife has moved with her children to a permanent residence in
northern Idaho, close to the Canadian border. The evidence
shows this move had substantial consequences. Respondent
testified that, ". . . I can1 afford to see [the children]
t
because they are too far away." Furthermore, respondent
apparently earns approximate1.y $150 less per month than at
the time of the decree. Although the record is unclear on
this point, it does show that respondent earns only $950 a
month in take-home pay. We hold that there is substantial
credible evidence to support the District Court's finding of
changed circumstances so substantial and continuing as to
make the terms of the original decree unconscionable.
Appellant has not shown that the District Court clearly
abused its discretion nor has she overcome the presumption
that the District Court's judgment is correct. We affirm the
District Court's modification of the child support
obligation.
The second issue is whether the District Court's
findings of fact and conclusions of law are sufficient to
support the modification of the decree. Appellant asserts
that the District Court adopted respondent's proposed
findings of fact and conclusions of law verbatim. Appellant
contends the findings and conclusions are not supported by
the evidence, not comprehensive, and not pertinent to the
issues. This requires reversal, according to appellant,
under Parenteau v. Parenteau (Mont. 1983), 664 P.2d 900, 903,
40 St.Rep. 815, 819, where this Court stated:
... findings and conclusions which are
sufficiently comprehensive and pertinent
to the issues to provide a basis for
decision ... will not be overturned
simply because the trial court relied
upon proposed. findings and conclusions
submitted by counsel.
Initially, we note that nothing in the record reflects
that the District Court adopted respondent's proposed
findings and conclusions. Even if this were true, we find
the findings and conclusions to be sufficiently
comprehensive, pertinent and accurate to support the District
Court's decision. The court found that both parties had
remarried and noted the respective employment capabilities of
each party and their respective spouses. The court also
cited each party's present monthly income and concluded that,
given the change of circumstances, a modification of the
child support obligation was called for. We find no error in
the sufficiency of the court's findings and conclusions.
 The last issue is whether the District Court
impermissibly, retroactively modified the child support
provisions of the original decree. Section 40-4-208(1), MCA,
states that, except as otherwise provided, ". . . a decree
may be modified by a court as to maintenance or support only
as to installments accruing subsequent to the motion for
modification." Appellant argues that the District Court
violated this statute by specifying how accrued payments (the
arrearage) should be paid off. The District Court did
provide that respondent would pay $25 per month towards his
support arrearage. Appellant claims this is a retroactive
modification of accrued support under Williams v. Budke
(1980), 186 Mont. 71, 76-77, 606 P.2d 515, 518; quoting wade
v. Wade (Okla. 1977), 570 P.2d 337, 339:
Providing the manner in which the
judgment is to he collected amounts to an
impermissible retroactive modification of
the decree (citing cases). In addition
such an order limits Carolyn's right to
pursue statutory provisional remedies to
collect [a] judgment.
Appellant does not, however, cite the controlling
statement from the Williams case. This Court went on to say
in Williams, 186 Mont. at 78, 606 P.2d at 519, that:
The District Court always has
jurisdiction in contempt proceedings for
the purpose of enforcing a support money
decree, to find the defaulting party in
contempt, and to stay the execution of
punishment for the contempt upon the
proviso that the defaulting party purge
himself by making payments in accordance
with a schedule established by the
District Court.
This is exactly what the District Court did in the instant
case. The court had previously found respondent in contempt
of court for being in arrears on his child support payments.
The provision that he pay $25 per month towards the arrearage
 was a mechanism by which respondent could purge himself. We
reject appellant's contentions under the third issue.
A£ firmed.

/-/dV TLK%
We concur:

T i e f Justice