No. 84-530 IN THE SUPREME COURT OF THE STATE OF MONTANA 1985

INRE THE CUSTODY AND SUPPORT OF H. Q. and T. Q.

APPEAL FROM: DistrictCourtof theEighthJudicial District, Inand 

### for the Countyof Cascade, TheHonorableR. D. KcPhillips, Judge presiding.

COUNSEL OF RECORD:

ForAppellant: Jardine, Stephenson, Blewett & Weaver; K. Dale Schwanke, GreatFalls, Montana

ForRespondent: 

### Clary & Clary; Thomas Clary, GreatFalls, Montana

Submitted onbriefs: Aug. 15, 1985 Decided: October 24, 1985

Filed:

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# fa m ClerkMr. Justice 

### 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 father and mother (also referred toasrespondent) joined in a property settlement and child custody agreement at the 

### time their divorce decree was entered without an adversary hearing on May 27, 1982. The agreement provided the partieswould have joint custody of H.Q. and T.Q., their minor children, with the mother tohave residential custody. The children would be with their fatherone night each 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 during the summer, holidayvisitations, and an alternateplan if either parent should leave Great Falls, Montana. The father agreed, and was ordered, topay child support of $200 per month per child until December 1982, atwhich 

### time the supportwould increase to$250permonth per child. The father losthisjob aboutNovember 1982 and decided to establish his own business. He contacted the mother to arrange a deferral of child support and she agreed to give him some 

### time to make the payments. However, they never reached an agreement on the amount to be deferred or the period of 

### timeinvolved. InMarch 1983, themother levied on the father's bank accounts for past due amounts. Heresponded by requesting modification of his support obligation and visitationprivileges. The father continued to be delinquent in his support payments. In June 1983, the mother initiated contempt proceedings and requested attorneyf

### s fees and the father requested exclusive custody of thechildren. Over the course of hearings in August, September and October 1983, both the parties and theirwitnesses testified about the parentsf difficultieswith each other. The father contended that the mother drank to excess, neglected the children, and persistently violated the spiritand intent of the custody provisions in their agreement. He testified that, in addition to a reduction of income, his ability to pay child support had substantially changed because he had three new dependents; a new wife, a son from an earlier marriage, and a new baby. The mother produced evidence that he had more than adequate earnings topay child support in 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 specific instances 

### of the other parent's wrongdoing and about his or her own good parenting skills. In 

### its order filed June 1, 1984, the District Court found that neither parent was unfit although each attempted to use the children to aggravate the other. The District Court also found that the custody arrangement agreed on by the parents remained adequate and in the best interests of the children and there was no showing that the children'spresent environment endangered their physica1, mora1

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oremotionalhealth. The fatherwas found tohave sufficient income topay all past child support and tocontinue paying the agreed amount. The court concluded that, under 

### S 40-4-219, MCA, no modification of the custody decree was appropriate. The order statedthatallback supportpayments should be made within thirty days. The order required specific behavior of each party and stated the consequences for any failuretofollowtheorder. The father raises two issueson appeal: (1) Whether the District Court abused 

### its discretion infailingtogranthismotion tomodify child custody? (2) Whether the District Court abused 

### its discretion by denying hismotion tomodify hischild support obligation? This Court 

### will not reverse a determination of child custody absent an abuse of discretion by the district court. Gilmore v. Gilmore (1975), 166 Mont. 47, 530 P.2d 480. Section 40-4-219, MCA provides: (1) The court may in 

### its discretion modify 

### a prior custody decree if 

### it finds, upon the basis of factsthathave arisen since the prior decree or that 

### were unknown tothe court atthe 

### timeof entry of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification 

### is necessary to serve the best interest of the child and if 

### it further findsthat:



### fc) the child

### 's present environment endangers seriouslyhisphysical, mental, moral, or emotional health and the harm likely to be caused by a change of environment 

### is outweighed by 

### its advantages tohim; 

# . . .

### 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 ofboth parents. The DistrictCourt 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 substantialevidence to support the decision. The father also challenges the DistrictCourt's refusal to lower his child support obligation. Section 40-4-208, MCA, allows modification of support for installments due after the request "upona 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 reductionof 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 itwould take three to sixmonths 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 consistentwith 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. Affirmed. R ,', ;'

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### We concur: