No. 92-217 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 1992

IN RE THE MARRIAGE OF JERRY 

### A. HOWARD, petitioner and Appellant, and DEBBE A. GLIDDEN, formerly known as DEBBEA. HOWARD, Respondent and Respondent.

APPEAL FROM: District Court of the Eleventh Judicial District, In and for the County of Flathead, The Honorable Michael H. Keedy, Judgepresiding.

COUNSEL OF RECORD: For Appellant: H. JamesOleson,OlesonLaw Firm,Kalispell, Montana For Respondent: BruceMcEvoy,Warden, Christiansen, Johnson & Berg, Kalispell,Montana

Filed: Submitted on Briefs: August 13, 1992 ~~~id~d: October 29, 

### 1992

B ClerkJustice Fred J. Weber delivered the Opinion of the Court.

After a hearing, the District Court for the Eleventh Judicial District, Flathead County, modified the original decree of dissolution and ordered that the amount of child support owing to Debbe A. Glidden (Ms. Glidden) by Jerry Howard (Mr. Howard) be increased from $300 per month to $1,172.50 per month, retroactive to December 1, 1990. He appeals. We affirm inpart and reverse in part.The issues for our consideration are: 1. Did the District Court err in increasing Mr. Howard's child support obligation from $300 per month to $1,172.50 per month? 2. Did the District Court err in failing to deduct support payments allegedlymade by Mr. Howard to hismother in arriving at the correct modified child support obligation? 3. Did the District Court err in modifying Mr. Howard's child support obligation effective December, 1990? 4. Did the District Court err in granting Ms. Glidden attorney fees? Jerry and Debbe Howard were divorced on August 9, 1982, pursuant to a decree of dissolution entered by the Eleventh Judicial District Court, Flathead County, Montana. In accordance with the terms of a custody and property settlement agreement,Ms. Gliddenwas awarded custody of theparties' two minor children,and Mr. Howard was ordered to pay a total amount of $300 per month in child support. 2In December of 1990, when both parties were residing in the State of Washington, Mr. Howard received a letter from Ms. Glidden's counsel requesting child support modification. On February 12, 1991,Ms. Glidden filed a petition in a superior court of the State of Washington for modification of child support. Copies of the petition and summons were served on Mr. Howard's current spouse at his home inWashington on February 17, 1991. Mr. Howard challenged the petition on jurisdictional grounds and the motion was ultimately dismissed for insufficiency of process. Subsequently, Ms. Glidden filed a motion to modify child support in the Flathead County District Court on August 15, 1991. Again Mr. Howard challenged thepetition on jurisdictionalgrounds. The District Court denied his motion. After a hearing, the District Court ordered that Mr. Howard should pay $1,172.50 per month for child support, retroactively from and including December of 1990, allowing a credit for the $300 per month which Mr. Howard had already paid. The District Court further orderedMr. Howard topay Ms. Glidden's reasonableattorney fees and costs incurred as a result of bringing the motion to modify. Mr. Howard appeals. I Did the District Court err in increasing Mr. Howard's child support obligation from $300 per month to $1,172.50 per month? Mr. Howard maintains that such an enormous increase in child support payments is per se unconscionable. Ms. Glidden maintains that the District Courtproperly applied theMontana Child SupportRegulations and Guidelinesand thatMr. Howard has failed to prove otherwise. Mr. Howard cites no authority for his argument that a substantial increase in child support is per se unconscionable. Furthermore,he does not specify any error in the District Court's findings,only in its conclusion increasingthe child support. The District Courtmade extensive andparticular findings regardingthe income of the parties and their respective child support obligations. Absent a clear abuse of discretion, the District Court will not be overruled. Marriage of Graveley (1990), 244 Mont. 137, 139, 796 P.2d 585, 586. We conclude the District Court did not abuse its discretion. We hold that the courtdid not err in increasingMr. Howard's child support obligation from $300per month to $1,172.50 per month. I

I Did the District Court err in failing to deduct support payments allegedlymade by Mr. Howard to his mother in arriving at the correctmodified child support obligation? The District Court found: 15. Petitioner claims he should be allowed to deduct, for child support purposes, $15,148.58 he pays annually for the Kalispell residence, a vehicle, insurance, and approximately $225.00 per month to his mother for her support. The Regulations do not provide for such a deduction. Mr. Howard maintains he is bound by law to provide for his indigent mother, citing 

### 5 40-6-301, MCA, as authority. It provides: Duty of childtosupport indigent parents. It ishereby 4declared and made the duty of every adult child,having the ability so to do, to furnish and provide necessary food, clothing, shelter, and medical attendance for his indigent parent or parents, unless, in the judgment of the court or jury, he is excused therefrom by reason of intemperance, indolence, immorality, or profligacy of such parent. The record contains no evidence that Mr. Howard's mother is indigent. Absent such proof, the District Court is not bound to consider the support of his mother as a legal duty which might be considered as an expense in calculating child support. We hold the District Court correctly refused to deduct support payments Mr. Howard made to his mother in arriving at the modified child support obligation. I11 Did the District Court err in modifying Mr. Howard's child support obligation effective December, 1990? Mr. Howard maintains the District Court erred in ordering the increased child support obligation to be retroactive to December, 1990. The court found that tobe the dateMr. Howard "became aware of [Ms. Glidden's] legal proceeding to modify the supportu. Mr. Howard maintains that a child support obligationmay only be made retroactive to the date the motion to modify child support was filed. We agree. Section 40-4-208(1), MCA, provides: [A] decree may be modified by a court as to maintenance or supportonlyas to installmentsaccruing subsequentto actual notice to the parties of the 

### motion for modification. (Emphasisadded). Ms. Glidden filedhermotion formodification in the District Court in Montana on August 15, 1991, and Mr. Howard was properly served. 5The District Court concluded that the notice given to 

### Mr. Howard under the filing in the superior court in Washington, constituted notice under the statute. We conclude that is not appropriate under the specific wording of the statute, We conclude that under the statute the right to the modified child support accrued 

### on the date actual notice

### was given of themotion for modification in the Montana proceedings. We conclude the District Court erred in orderingthe increased child support obligation to be retroactive to December 1990. We hold that themodified child support shall be retroactive only to August 15, 1991. IV Did the District Court err in granting Ms. Glidden attorney fees?The District Court ordered Mr. Howard to pay $1,978 in attorney fees as a result of her motion to modify. Mr. Howard maintains that ordering him to pay fees 

### is a "substantial injusti~e'~. Ms. Glidden correctly cites 5 40-4-110,MCA, as authority for the court ordering

### Mr. Howard to pay attorney fees. We also point out that as the District Court noted in its order, Mr. Howard failed to object to the finding that Ms. Glidden should recover attorney fees or to the reasonableness of such fees. It is well settled law that a party may not raise an issue,not raised in the District Court, for the first time on appeal. We hold that the District Court did not err 

### in granting Ms. Glidden attorney fees.The judgment of the District Court is affirmed with the exception that an appropriate order shall be entered modifying the child support to show that it is retroactive only to August 15,

We Concur: IEDSMITH CLERK Stutenfflnntana 

### @£fire of(alerkoftheSupremo(aourt $plena 59620 406-444-3858

October29, 1992 CERTIFICATEOFSERVICE 

### Ihereby certifythat thefollowingorderwas sentby United Statesmail,prepaid, tothe followingnamed:



### H.JamesOleson OlesonLawFirm P.O.

### Box2036 Kalispell,MT 59903-2036 BruceMcEvoy Warden, Christiansen, Johnson &Berg P.O.Box3038 Kalispell,MT 59903-3038 EDSMITH CLERKOFTHESUPREME COURT STATEQFMONTAN&