NO. 82-493 IN

### THE SUPREMECOURTOF 

### TI-IESTATEOF JIONTAXA 1983

IN RE THEMARRIAGE OF JEFFREY 0. HUGIiES, Petitioner and Respondent,

-vsPAPIELA AIJN ITUGHES

### , Respondent and Appellant.

Appeal from: District Court of the Thirteenth JudicialDistrict, In and for the County of Stillwater, TheHonorable William J. Speare,Judgepresiding.

Counselof Record: ForAppellant: 

### W. Corbin Howard, Billings,Montanq For Respondent: JamesJ. Sinclair,Billings,Montana

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### ----

Submitted on Briefs: April 

### 29, 1983 Decided: July 13,1983

Filed:

## JUL13

## 1983

----- ClerkMr. 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 intheDistrictCourt of theThirteenth Judicial District, Stillwater County. The partieswere 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 theDistrict 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 essentiallyasked him toreveal theamount of money he had put intohis new wife's bank accounts and had taken out of those same accounts for the years 1980, 1981 and 1982. Husband alsorefused toanswer several interrogatories which dealtwith the identity of his customers and the amount of income he received from them, stating that this information

was confidential. Wife subsequentlyfiledamotion tocompel 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, sincehusband's income was completelydiscoverable. Atthetimeof theparties' 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 generalmanager for Christian, Spring

## , Sielbach and Associates. Husband was given an $8,000 cash advance and was also paid a monthly salaryof $3,082 for November, December, and January, when he was also allowed toconclude hisbusiness activitieswith other clients. From February toMay, 1982, husband's monthly salarywas increased to$4,333. InMay 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 inJune 1982 to $2,450. His income for July and August 1982amounted 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 thatsheneeded the$350 per month per childsupportpayment toprovide for theparties' children. On October 6, 1982, theDistrictCourt issued anorder reducing husband's child support payments to$200 per month per child. From this order, wife appeals and presents the following issuesfor our review: 1. Did the District Court err in denying wife's motion for an order compelling discovery? 2. Did theDistrict Court err inmodifying husband's child supportobligation?Wife first contends that husband should have been compelled to answer the following and other related interrogatories:"INTERROGATORYNO. 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 calendaryears 1980, 1981,and 1982." "INTERROGATORYNO. 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 subjectmatter involved in thepending 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." (Emphasisadded.)The information wife sought in Interrogatory Nos. 25 through 29 was certainly relevant to the subjectmatter of the pending action. In his petition for modification of child support, husband claimed that he did not have the ability topay the current level of child support because he

was unemployed and had no income. To defend against this claim, wife necessarilyhad todetermine 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 interrogatoriesby 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 thedecree proposed for modiiication contains provisions relating to 

# . .. support, modification

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# .. 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 Iwould 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, themonth after he was terminated, his income amounted to $2,450. Although husband's incomewas 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 consultingbusiness. 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 "continuingas tomake 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:



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