No. 84-530 I N THE SUPREME COURT O F T H E S T A T E O F MONTANA 1985

I N RE THE CUSTODY AND SUPPORT O F H . Q. a n d T . Q .

APPEAL FROM: D i s t r i c t C o u r t of t h e E i g h t h 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 C o u n t y of C a s c a d e , T h e H o n o r a b l e R . D. K c P h i l l i p s , Judge p r e s i d i n g .

COUNSEL O F RECORD:

For Appellant: J a r d i n e , S t e p h e n s o n , B l e w e t t & Weaver; K . Dale Schwanke, G r e a t F a l l s , Montana

For Respondent: Clary & Clary; Thomas C l a r y , G r e a t F a l l s , Montana

S u b m i t t e d o n briefs: Aug. 15, 1985 Decided: O c t o b e r 2 4 , 1985

Filed: OCT 2419%'

P f C l emk ar P M. J u s t i c e r L.C. Gulbrandson delivered the Opinion of the Court.

The father, appellant, appeals from an order of the District Court of the Eighth Judicial District, Cascade County, denying his requests for modification of child custody and reduction of child support obligations. We affirm.

The f a t h e r and m o t h e r ( a l s o r e f e r r e d t o a s respondent) joined i n a p r o p e r t y s e t t l e m e n t and c h i l d c u s t o d y a g r e e m e n t at the time their divorce decree was entered without an a d v e r s a r y h e a r i n g on May 2 7 , 1982. The a g r e e m e n t p r o v i d e d t h e p a r t i e s would have j o i n t c u s t o d y o f H.Q. and T.Q., their minor c h i l d r e n , w i t h t h e m o t h e r t o h a v e r e s i d e n t i a l c u s t o d y .

The c h i l d r e n would b e w i t h t h e i r f a t h e r o n e n i g h t e a c h week, every other weekend, and two months each summer. The agreement contained provisions about the required notice prior to visits during the week, the mother's visitation d u r i n g t h e summer, h o l i d a y v i s i t a t i o n s , and an a l t e r n a t e p l a n if either parent should leave Great Falls, Montana. The f a t h e r a g r e e d , and was o r d e r e d , t o p a y c h i l d s u p p o r t o f $ 2 0 0 p e r month p e r c h i l d u n t i l December 1982, a t which t i m e t h e s u p p o r t would i n c r e a s e t o $ 2 5 0 p e r month p e r c h i l d .

The f a t h e r l o s t h i s j o b a b o u t November 1982 and d e c i d e d t o e s t a b l i s h h i s own b u s i n e s s . H e c o n t a c t e d t h e mother t o arrange a d e f e r r a l of c h i l d s u p p o r t and s h e a g r e e d t o g i v e him some time t o make the payments. However, they never reached an agreement on the amount t o be deferred or the period of t i m e involved. I n March 1983, t h e m o t h e r l e v i e d on the father's bank accounts for past due amounts. He responded by requesting modification of his support o b l i g a t i o n and v i s i t a t i o n p r i v i l e g e s .

The f a t h e r c o n t i n u e d t o be d e l i n q u e n t i n h i s support payments. In June 1983, the mother initiated contempt proceedings and requested attorneyfs fees and the father requested exclusive custody of t h e children.

Over t h e course of h e a r i n g s i n August, September and O c t o b e r 1 9 8 3 , b o t h t h e p a r t i e s and t h e i r w i t n e s s e s t e s t i f i e d about t h e p a r e n t s f d i f f i c u l t i e s with each o t h e r . The f a t h e r contended that the mother drank to excess, neglected the children, and p e r s i s t e n t l y v i o l a t e d t h e s p i r i t and i n t e n t o f the custody provisions in their agreement. He testified that, in a d d i t i o n t o a r e d u c t i o n of income, h i s a b i l i t y t o pay child s u p p o r t had s u b s t a n t i a l l y changed b e c a u s e h e had three new dependents; a new w i f e , a son from an earlier m a r r i a g e , and a new baby. The m o t h e r produced e v i d e n c e t h a t he had more t h a n a d e q u a t e e a r n i n g s t o pay c h i l d support i n the first half of 1983 and testified that he was uncooperative, inconsiderate and not prompt on visitation schedules. Each parent testified, and had their own witnesses testify, about several s p e c i f i c i n s t a n c e s of the other parent's wrongdoing and about his or her own good parenting s k i l l s .

In its order filed June 1, 1 9 8 4 , t h e District Court found t h a t n e i t h e r p a r e n t was u n f i t a l t h o u g h e a c h a t t e m p t e d t o use the children t o aggravate t h e other. The D i s t r i c t C o u r t a l s o found t h a t t h e c u s t o d y a r r a n g e m e n t a g r e e d on by t h e p a r e n t s remained a d e q u a t e and i n t h e b e s t i n t e r e s t s o f the children and t h e r e was no showing t h a t the children's p r e s e n t e n v i r o n m e n t e n d a n g e r e d t h e i r p h y s i c a 1, mora 1 , menta 1 o r emotional health. The f a t h e r was found t o have s u f f i c i e n t income t o pay a l l p a s t c h i l d s u p p o r t and t o c o n t i n u e p a y i n g the agreed amount. The court concluded that, under S 40-4-219, MCA, no m o d i f i c a t i o n of t h e c u s t o d y d e c r e e was appropriate. The o r d e r s t a t e d t h a t a l l b a c k s u p p o r t payments should be made within thirty days. The order required s p e c i f i c b e h a v i o r o f e a c h p a r t y and s t a t e d t h e c o n s e q u e n c e s f o r any f a i l u r e t o f o l l o w t h e o r d e r .

The f a t h e r r a i s e s two i s s u e s on a p p e a l : (1) Whether t h e D i s t r i c t C o u r t a b u s e d i t s d i s c r e t i o n i n f a i l i n g t o g r a n t h i s m o t i o n t o modify c h i l d c u s t o d y ?

(2) Whether t h e D i s t r i c t C o u r t a b u s e d its discretion by d e n y i n g h i s motion t o modify h i s c h i l d s u p p o r t o b l i g a t i o n ?

This Court w i l l not reverse a determination of child c u s t o d y a b s e n t an a b u s e o f d i s c r e t i o n by t h e d i s t r i c t c o u r t .

Gilmore v. Gilmore (1975), 166 Mont. 47, 530 P.2d 480.

S e c t i o n 40-4-219, MCA p r o v i d e s : (1) The c o u r t may i n i t s d i s c r e t i o n modify a p r i o r c u s t o d y d e c r e e i f it f i n d s , upon t h e b a s i s o f f a c t s t h a t have arisen s i n c e the p r i o r decree o r t h a t w e r e unknown t o t h e c o u r t a t t h e t i m e o f e n t r y o f t h e p r i o r d e c r e e , t h a t a change has occurred i n t h e circumstances of t h e c h i l d o r h i s c u s t o d i a n and t h a t t h e modification is necessary t o serve t h e b e s t i n t e r e s t o f t h e c h i l d and i f it further finds that:

fc) the child 's present environment endangers s e r i o u s l y h i s p h y s i c a l , mental, m o r a l , o r e m o t i o n a l h e a l t h and t h e harm l i k e l y t o b e c a u s e d by a c h a n g e o f environment is outweighed by its a d v a n t a g e s t o him; ...

In order to prevent recurring litigation, S 40-1-219, MCA "places a heavy burden on the person seeking to modify a prior custody decree." Groves v. Groves (1977), 173 Mont. 291, 298, 567 P.2d 459, 463.

The District Court received evidence regarding conduct that occurred prior to the decree and on facts which arose after the initial decree. This included evidence on changes in the lives of both parents. The District Court listened to lengthy and conflicting testimony about the children's present environment. No abuse of discretion occurred when the District Court found no endangerment to the children in their present environment. Our review of the record shows substantial evidence to support the decision.

The father also challenges the District Court's refusal to lower his child support obligation. Section 40-4-208, MCA, allows modification of support for installments due after the request "upon a showing of changed circumstances so substantial and continuinq as to make the terms unconscionable ..." In Hughes v. Hughes (Mont. 1983), 666 P.2d 739, 741, 40 St.Rep. 1102, 1105, we reversed a district court's modification of child support and remanded for a determination of the continuing nature of the change in the father's circumstances. The father in Hughes requested a reduction of support payments on the grounds that his job had terminated, he was unemployed and consequently he had a reduction of income. He started his own business and anticipated that it would take three to six months to rebuild it. We stated that the reduction in income for this relatively short period of time was not so continuinq as to make the original agreement unconscionable. In the case at bar, the District Court found that despite the father's job loss he had sufficient current income to make the agreed payments. This is consistent with the statements in Hughes, that a temporary reduction of income is not a continuing change so as to make prior terms on support unconscionable.

We hold that the District Court did not abuse its discretion by refusing to lower the father's child support obligation.

R Affirmed. , ' , ;' ,*

We concur: