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 

DEBBE A. 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, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

H. James Oleson, Oleson Law Firm, Kalispell, Montana 

For Respondent: 

Bruce McEvoy, Warden, Christiansen, Johnson & Berg, 

Kalispell, Montana 

Filed: 

Submitted on Briefs: August 13, 1992 

~~~id~d: October 29, 1992 

B 

Clerk 
Justice 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 in part 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 allegedly made by Mr. Howard to his mother 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. 

Glidden was awarded custody of the parties' two minor children, and 

Mr. Howard was ordered to pay a total amount of $300 per month in 

child support. 

2 
In 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 in Washington 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 the petition on jurisdictional grounds. 

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 ordered Mr. Howard to pay Ms. Glidden's reasonable attorney 

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 Court properly applied the Montana Child Support 
Regulations and Guidelines and that Mr. 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 increasing the child support. The 

District Court made extensive and particular findings regarding the 

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 court did not err in increasing Mr. Howard's child 

support obligation from $300 per month to $1,172.50 per month. 

I I 

Did the District Court err in failing to deduct support 

payments allegedly made by Mr. Howard to his mother in arriving at 

the correct modified 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 child to support indigent parents. It is hereby 

4 
declared 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 to be the date Mr. Howard "became aware 

of [Ms. Glidden's] legal proceeding to modify the supportu. Mr. 

Howard maintains that a child support obligation may 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 support only as to installments accruing subsequent to 

actual notice to the parties of the motion for 

modification. (Emphasis added). 

Ms. Glidden filed her motion for modification in the District Court 

in Montana on August 15, 1991, and Mr. Howard was properly served. 

5 
The 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 the motion for modification in the 

Montana proceedings. 

We conclude the District Court erred in ordering the increased 

child support obligation to be retroactive to December 1990. We 

hold that the modified 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: I 
ED SMITH 

CLERK 

Stute nf flnntana 

@£fire of (alerk of the Supremo (aourt 

$plena 59620 

406-444-3858 

October 29, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

H. James Oleson 

Oleson Law Firm 

P.O. Box 2036 

Kalispell, MT 59903-2036 

Bruce McEvoy 

Warden, Christiansen, Johnson & Berg 

P.O. Box 3038 

Kalispell, MT 59903-3038 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE QF MONTAN&