PJo. 83-275 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1383 

IN RE THE MARRIAGE OF 

ALLEN MONROE TRIMP, 

Petitioner and Appellant, 

-vsFiARRIET ANN TRIMP, 

Respondent and Respondent. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Henry Loble, Judge presiding. 

COUNSEL OF XECORD: 

For Appellant: 

Cannon & Sheehy; Edmund F. Sheehy, Jr., Helena, 

Montana 

For Respondent: 

Ann L. Smoyer, Helena, Hontana 

Submitted on Eriefs: September 15, 1983 

Decided: November 15, 1983 

Clerk 
Justice Frank B. Morrison, Jr. delivered the Opinion of the 

Court. 

Allen Monroe Trimp appeals the May 10, 1983 order of the 

District Court of the First Judicial District, Lewis and 

Clark County, denying his April 12, 1983 motion to modify 

child support payments required of him. 

The marriage of Allen Monroe Trimp (husband) and Ha-rriet 

Ann Trimp (wife) was dissolved on February 25, 1983. The 

decree dissolving the marriage approved and incorporated the 

Custody, Support and Property Settlement Agreement 

(Agreement) entered into by the parties that same day. The 

relevant portion of the Agreement provided that as of March 

of 1983, husband would pay child support of $350 per child 

per month for each of the parties' two minor children, 

payments to be made bi-weekly. 

Husband made the March payments, but wrote wife at the 

end of March to inform her that due to a decrease in pay, he 

would no longer be able to make the $700 a month payments. 

He offered to pay her $350 a month instead. Wife refused. 

At the beginning of April, husband paid wife $200 as child 

support rather than the agreed upon $350. Thereafter, 

husband filed this petition to modify his child support 

payments. 

At the time the Agreement was entered into, husband was 

earning a net monthly salary of $1422 as a bus driver for 

Rimrock Stages of Billings, Montana. He supplemented that 

salary with extra income earned from driving charter buses 

and from repairing buses. 

A hearing was held April 27, 1983 on husband's petition 

to modify. Husband was the sole witness. He testified that 

Rimrock Stages had switched from a salary pay plan to a wage 

pay plan in the middle of March 1983. As a result, he was 
receiving 19C per mile, driving 460 miles on each working day 

and working a schedule of four days on, four days off, for a 

total net pay of approximately $1100 per month. In addition, 

his opportunities to drive charter had decreased as Rimrock 

Stages had hired a full-time charter bus driver. The only 

evidence presented in support of that testimony was husband's 

pay stub for April 1 through April 15, 1983. His net income 

for that two week period was $587. He presented no proof in 

support of his allegation that the wage-based pay plan was 

permanent. 

Husband further testified that his $587 paycheck of 

April 15, 1983 was spent as follows: 

1. Rent $250 

2. Child Support 200 

3. Truck Payment 76 

4. Television Payment 93 

5. Montana Power 25 

6. Medical Bill for Son 25 

The only documentation of those expenses presented at the 

hearing was a receipt indicating that his monthly rent, 

including utilitites, was $250. 

The parties agreed that wife's expenses had not changed 

since the time the Agreement was entered into. 

Section 40-4-208(2)(b), MCA, controls when a trial court 

can grant a petition for modification of a child support 

decree. It states in relevant part: 

" (2) (b) Whenever the decree proposed for 

modification contains provisions relating to 

maintenance or support, modification . . . may only 

be made: 

i upon a showing of changed cirucumstances so 

substantial and continuing as to make the terms 

unconscionable. " 

Based upon the testimony set forth above, the trial 

court held that husband's change in circumstances was neither 

so substantial or continuing as to make the original child 

support payments 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 

(1982) (sic) , Mont . , 660 P.2d 90, 40 St.Rep. 321." 

Hughes v. Hughes (1983), 666 P.2d 739 at p. 741, 40 St.Rep. 

1102 at p. 1105. That evidence must also be viewed in the 

light most favorable to the prevailing party. PJicolai v. 

Nicolai (19811, 631 P.2d 300 at p. 303, 38 St.Rep. 1100 at 

p. 1103. 

Viewing the evidence in the record in the light most 

favorable to wife, we cannot say that the decision of the 

trial court was clearly erroneous. The evidence indicates 

that husband's bi-weekly pay check for the period April 1 

through April 15, 1983 was approximately twenty percent less 

than his bi-weekly pay checks were at the time husband 

entered into the Child Support Agreement. If - husband's 

income is to remain permanently at this level and if - 

husband's net worth is not substantial, it would be 

unconscionable to require him to pay 63% of his monthly 

income as child support - if he would then be unable to meet 

his other financial obligations. However, husband has left 

the trial court with too many "ifs". 

Husband has failed to prove that his total financial 

situation warrants a finding that his decrease in income 

changed his financial circumstances substantially. Further, 

he has totally failed to prove that the change would be 

continuing. Thus, pursuant to section 40-4-208(2)(b), MCA, 

the trial court acted correctly in denying husband's petition 

for modification. 

Affirmed. 
We concur: 

"d-AA4 I;a/rlkd+ Chief Justice