No. 84-530 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

IN RE THE CUSTODY AND SUPPORT OF 

H. Q. and T. Q. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable R. D. KcPhillips, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Jardine, Stephenson, Blewett & Weaver; K. Dale 

Schwanke, Great Falls, Montana 

For Respondent : 

Clary & Clary; Thomas Clary, Great Falls, Montana 

Submitted on briefs: Aug. 15, 1985 

Decided: October 24, 1985 

Filed: OCT 2419%' 

P P fa m 

Clerk 
Mr. 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 to as respondent) 

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 parties would have joint custody of H.Q. and T.Q., their 

minor children, with the mother to have residential custody. 

The children would be with their father one 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, holiday visitations, and an alternate plan 

if either parent should leave Great Falls, Montana. The 

father agreed, and was ordered, to pay child support of $200 

per month per child until December 1982, at which time the 

support would increase to $250 per month per child. 

The father lost his job about November 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 time involved. In March 1983, the mother levied on 

the father's bank accounts for past due amounts. He 
responded by requesting modification of his support 

obligation and visitation privileges. 

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 the children. 

Over the course of hearings in August, September and 

October 1983, both the parties and their witnesses testified 

about the parentsf difficulties with each other. The father 

contended that the mother drank to excess, neglected the 

children, and persistently violated the spirit and 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 to pay 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's 
present environment endangered their physica 1, mora 1 , menta 1 

or emotional health. The father was found to have sufficient 

income to pay all past child support and to continue paying 

the agreed amount. The court concluded that, under 

S 40-4-219, MCA, no modification of the custody decree was 

appropriate. The order stated that all back support payments 

should be made within thirty days. The order required 

specific behavior of each party and stated the consequences 

for any failure to follow the order. 

The father raises two issues on appeal: 

(1) Whether the District Court abused its discretion 

in failing to grant his motion to modify child custody? 

(2) Whether the District Court abused its discretion 

by denying his motion to modify his child 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 facts that have 

arisen since the prior decree or that 

were unknown to the court at the time of 

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 finds that: 

fc) the child ' s present environment 

endangers seriously his physical, mental, 

moral, or emotional health and the harm 

likely to be caused by a change of 

environment is outweighed by its 

advantages to him; . . . 
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 of both parents. The District Court 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 

substantial evidence to support the decision. 

The father also challenges the District Court's refusal 

to lower his child support obligation. Section 40-4-208, 

MCA, allows modification of support for installments due 

after the request "upon a 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 

reduction of 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 it would take three to six months 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 consistent with 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: