PJo. 83-275 INTHE SUPREME COURT OF THE STATE OF MONTANA 1383

INRE THE MARRIAGE OF 

### ALLEN MONROE TRIMP, Petitioner andAppellant,

-vsFiARRIET ANN TRIMP, Respondent and Respondent.

APPEAL FROM: DistrictCourt of theFirstJudicialDistrict, In and for theCounty of Lewis & Clark, The Honorable Henry Loble, Judgepresiding.

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

ClerkJustice Frank B. Morrison, Jr. delivered the Opinion of the Court. Allen Monroe Trimp appeals theMay 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 supportpayments required of him. Themarriage 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 tobe made bi-weekly. Husband made the March payments, but wrote wife at the end of March to informher 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 Agreementwas 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 fromrepairingbuses. A hearing was held April 27, 1983 on husband's petition to modify. Husband was the solewitness. He testified that Rimrock Stageshad switched from 

### a salary pay plan to a wage pay plan in the middle of March 1983. As a result,he wasreceiving 19C per mile, driving 460miles on eachworking day and working a schedule of four days on, four days off, for a total netpay of approximately $1100permonth. 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 supportof that testimonywas husband's pay stub forApril 1 throughApril 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, 1983was spentas 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, includingutilitites,was $250. The parties agreed that wife's expenseshad not changed since the time theAgreement was entered into. Section 40-4-208(2)(b), MCA, controlswhen a trial court can grant a petition for modification of a child support decree. It states in relevantpart:

"(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 courtheld thathusband's change in circumstanceswas neither

so substantial or continuing as to make the original child support payments unconscionable. "This Court will reversethe 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 toomany "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 courtacted correctly in denying husband's petition formodification. Affirmed.Weconcur: 

# "d-AA4I;a/rlkd+ Chief Justice