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, Skjelset Law Offices,
Missoula, Montana
Submitted on Briefs: August 11, 1994
Decided: October 13, 1994
Filed:
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,
1987. One child was born of this marriage, Amanda Jean Clyatt.
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 time of
the divorce decree until July, 1993. 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. The court
denied both motions. 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. Eugene did not seek alternative construction employ-
ment, 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. He lived
with his parents and paid no rent. 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. Before a child support obligation can be
modified, 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), 251
Mont. 51, 55, 823 P.2d 243, 245. 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 substan-
tial 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. Eugene admits he
is a skiiied carpenter, 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 circumstanc-
es. 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 self-
imposed changes can never be considered as reasons for
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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.
-I 621 P.2d at 1092.
Rome
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 determin-
ing 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). The record indicates that Eugene was
able to earn an income sufficient to pay his child support
obligation while working at Clyatt Construction. The record
likewise reflects his unwillingness 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 unconscionability. We find no merit in this
argument. This Court recently indicated that a change in circum-
stances and unconscionability are two distinct factors which must
be independently established. In In Re the Marriage of Barnard
(Mont. 1994), 870 P.2d 91, 51 St.Rep. 173, we stated:
It is obvious that Timothy's financial success consti-
tutes 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, modifica-
tion under subsection (1) may only be made:
(i) upon a showing of changed circumstances so
substantial and continuing as to make the terms uncon-
scionable . . . .
Absent a finding of changed circumstances, the court's analysis
need go no further. Only after finding that the circumstances
surrounding the child support obligation have substantially and
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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
education is commendable, it does not override his
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 modifica-
tion of the child support obligation, the child support guidelines
do not come into effect. We affirm the decision of the District
Court.
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 formed the basis for the District Court's
January 7, 1992, decree. 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 change in circumstances since the date of the
parties' 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 father's construction business. However, due to
differences with his father, they mutually agreed 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
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his child support obligation alone was $5380. He had no
automobile, no savings, and no other assets.
Eugene had never worked as a carpenter for anyone other than
his father. After terminating his employment with his father, he
realized that there were numerous carpenters in Missoula, but few
construction jobs. Therefore, he decided that it would be in his,
as well as his child's, best interest that he reeducate himself, SO
he returned to school as a full-time student.
At the time of the only hearing that was held in this case,
Eugene was working at McDonalds 24 hours a week, earning $5.25 per
hour. His net income was $460 per month.
At the time of his hearing, Eugene proposed that his support
obligation be temporarily modified, based on his reduced income, to
conform to the Child Support Guidelines, and that the court
establish a schedule on which he could repay his past-due support
obligation. He was unable to do more.
Instead, on November 8, 1993, the District Court entered its
order finding him in contempt of court for failure to pay child
support and ordered that: he purge himself from contempt by
executing a wage assignment in the amount of $300 per month: pay
his wife's attorney fees in the amount of $242.50; pay costs in the
amount of $15.50; and pay medical bills in the amount of $327.50
within 15 days.
Section 40-4-208(2)(b), MCA, provides in relevant part as
follows:
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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 . . . .
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.
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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, that should not be surprising. Furthermore,
assuming that 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 concludes that when a person voluntarily
terminates his employment, and thereby sustains a reduction in
income, it is completely up to the district court's discretion to
determine whether a modification is warranted. However, that
discretion is not unlimited. Where, 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
he needs. Where 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. The alternative is that he go to jail.
However, there will be little benefit to his child from his
incarceration. Any pride taken by the District Court and this
Court in their 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
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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.
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In Re the Marriage of Clyatt
Court: Montana Supreme Court
Date filed: 1994-10-13
Citations: 882 P.2d 503, 267 Mont. 119, 51 State Rptr. 997
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