NO. 82-493 

IN THE SUPREME COURT OF TI-IE STATE OF JIONTAXA 

1983 

IN RE THE MARRIAGE OF 

JEFFREY 0. HUGIiES, 

Petitioner and Respondent, 

-vsPAPIELA AIJN ITUGHES , 

Respondent and Appellant. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and for the County of Stillwater, 

The Honorable William J. Speare, Judge presiding. 

Counsel of Record: 

For Appellant: 

W. Corbin Howard, Billings, Montanq 

For Respondent : 

James J. Sinclair, Billings, Montana 

.-- ---- 

Submitted on Briefs: April 29, 1983 

Decided: July 13, 1983 

Filed: JUL 13 1983 

----- Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Pamela Ann Hughes (wife) appeals from an order 

reducing the amount of child support to be paid to her by 

Jeffrey 0. Hughes (husband) entered in the District Court of 

the Thirteenth Judicial District, Stillwater County. 

The parties were divorced on December 9, 1980. Pursuant to a Child Custody, Support and Property Settlement 

Agreement, wife received custody of the two minor children 

and husband agreed to make support payments of $350 per 

month for each child. 

On May 24, 1982, husband petitioned the District Court 

to modify the original decree to reduce his child support 

obligation to $200 per month for each child. Husband stated 

that the reduction was necessary because he was presently 

unernployed and had no income. 

Shortly thereafter, wife served husband with interrogatories. Husband refused to answer any interrogatories 

which essentially asked him to reveal the amount of money he 

had put into his new wife's bank accounts and had taken out 

of those same accounts for the years 1980, 1981 and 1982. 

Husband also refused to answer several interrogatories which 

dealt with the identity of his customers and the amount of 

income he received from them, stating that this information 

was confidential. Wife subsequently filed a motion to compel 

discovery. The District Court denied the motion, stating 

that husband's new wife's income could not be considered. 

The District Court would allow wife to examine husband's 

income producing assets, however, since husband's income was 

completely discoverable. 

At the time of the parties' divorce, husband was self- 
employed as a management consultant. His income before 

taxes for 1980, the year of the divorce, was $47,686. In 

1981, husband's before-tax income was $44,052. 

On November 1, 1981, husband began working as a 

general manager for Christian, Spring , Sielbach and Associates. Husband was given an $8,000 cash advance and was also 

paid a monthly salary of $3,082 for November, December, and 

January, when he was also allowed to conclude his business 

activities with other clients. From February to May, 1982, 

husband's monthly salary was increased to $4,333. In May of 

1982, husband's employment with Christian, Spring, Sielbach 

and Associates was terminated. At this time, husband 

indicated that it would take from three to six months to 

rebuild his private consulting business. Husband's income 

decreased in June 1982 to $2,450. His income for July and 

August 1982 amounted to $1,475 and $1,900 respectively. 

The hearing on husband's petition was held on August 

30, 1982. At that time wife testified that her average 

annual income was between $8,000 and $10,000 and that her 

monthly expenses amounted to $1,200. She also testified 

that she needed the $350 per month per child support payment 

to provide for the parties' children. 

On October 6, 1982, the District Court issued an order 

reducing husband's child support payments to $200 per month 

per child. From this order, wife appeals and presents the 

following issues for our review: 

1. Did the District Court err in denying wife's 

motion for an order compelling discovery? 

2. Did the District Court err in modifying husband's 

child support obligation? 
Wife first contends that husband should have been 

compelled to answer the following and other related interrogatories: 

"INTERROGATORY NO. 25: State the location 

and account number of each and every 

checking account and savings account 

maintained by you or any other person, 

including your current wife, in which 

income earned by you or as a result of 

your activities has been placed for the 

calendar years 1980, 1981, and 1982." 

"INTERROGATORY NO. 9: If you were employed during the years 1980 and 1981, 

state: (a) the name and address of 

persons for whom you performed work in 

exchange for compensation; (b) the date 

you commenced performing work; (c) job 

title or position; (d) description of 

duties; (e) name and address of immediate 

supervisor." 

Husband based his refusal to answer Interrogatory Nos. 25 

through on Duffey Duff ey Mont . 

P.2d 697, 38 St.Rep. 1105, wherein this Court held that a 

husband's obligation to support his children may not be 

increased simply because he has remarried and his new wife 

is bringing additional income into his household. Husband 

also refused to answer Interrogatory Nos. 9 and 10 because 

of the confidential nature of the work he performs. 

Wife asserts that the information she asked for in the 

interrogatories is neither irrelevant nor privileged, and 

therefore the District Court should have compelled discovery. We agree. Rule 26(b)(l), M.R.Civ.P., states: 

"Parties may obtain discovery regarding 

any matter, -- not privileged, which is 

relevant to the subject matter involved 

in the pending action, whether it relates 

to the claim or defense . . . of any 

other party . . . It is not ground for 

objection that the information sought 

will be inadmissible at the trial if the 

information sought appears reasonably 

calculated to lead to the discovery of 

admissible evidence." (Emphasis added.) 
The information wife sought in Interrogatory Nos. 25 

through 29 was certainly relevant to the subject matter of 

the pending action. In his petition for modification of 

child support, husband claimed that he did not have the 

ability to pay the current level of child support because he 

was unemployed and had no income. To defend against this 

claim, wife necessarily had to determine whether husband had 

the income and assets available to pay the current level of 

child support. Therefore, any income deposited by husband 

into his current wife's bank accounts was discoverable. 

Wife was attempting to discover the income of husband, not 

that of husband 's current wife, and thus husband's reliance 

on Duffey is unfounded. 

Husband also refused to answer interrogatories 

relating to his employment for the years 1980 and 1981, 

asserting that the work he performed was confidential and 

"requires a reputation for not divulging the name of the 

client or the services performed." The legislature has 

recognized the importance of protecting the confidentiality 

of certain relations. See section 26-1-801 et seq., MCA. 

The relationship between a management consultant and his 

clients, however, is not considered privileged either by 

statute or by the Montana Constitution. See Rule 501, 

Mont.K.Evid. Therefore, husband cannot avoid answering the 

interrogatories by claiming privilege. 

Wife also asserts that the District Court erred in 

reducing husband's child support obligation. When determining whether the child support obligation in this case 

should be modified, the District Court is governed by 

section 48-4-208(2)(b)(i), MCA, which states: "Whenever the 
decree proposed for modiiication contains provisions relating to . . . support, modification . . . may only be made: 

(i) upon a showing of changed circumstances so substantial 

and continuing as to make the terms unconscionable." This 

Court will reverse the District Court on this issue only if 

the District Court's findings are clearly erroneous in light 

of the evidence in the record. Rule 52(a), M.R.Civ.P.; 

Reynolds v. Reynolds ( 1983), Mont. , 660 P.2d 90, 

40 St.Rep. 321. 

In this case, the District Court's findings are 

clearly erroneous since no evidence was presented to prove 

that husband's change in circumstances was continuing. 

Indeed, the District Court recognized this at the hearing 

for modification of support when it stated: "The one thing 

that troubles me with it is I do think the law says you've 

got to show a continuing -- The testimony isn't quite what I 

thought I would hear -- substantial and continuing change in 

circumstances. Now, I think that's the problem." 

The evidence shows that immediately upon being 

terminated from his employment, husband filed a petition to 

modify his support payments because he was presently unemployed and had no income. However, in June, the month after 

he was terminated, his income amounted to $2,450. Although 

husband's income was reduced to $1,475 in July, it increased 

in August to $1,900. Husband also stated prior to his 

termination that it would take from three to six months to 

rebuild his consulting business. This evidence merely demonstrates that husband suffered a reduction in his income for 

a relatively short period of time. The reduction in 

husband's income, however, was not proven to be "continuing 
as to make the terms [of the original agreement] unconscionable. " 

We therefore reverse the order of the District Court 

and remand the cause with instructions to compel husband to 

answer the interrogatories submitted by wife and to thereafter hold an evidentiary hearing to determine if husband's 

circumstances have changed since the commencement of this 

appeal. 

/ Justice 

We concur: 

.. La-. L4.U)h/ -