NO. 92-089 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

CLAYTON MICHAEL MOONEY, 

petitioner and ~espondent, 

v. 

f@@ - 5 1993 

SHERRY LYNN XXCENNAN, cd--%t.if4 , 

CLERK OF SIJP~~EMF Respondent and Appellant, STAX OF [iloi~fANA 

MICHAEL ANTHONY MOONEY, 

a Minor Child. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable William J. Speare, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Judy A. Williams, Billings, Montana 

For Respondent: 

George T. Radovich, Billings, Montana 

For Amicus Curiae: 

Ann Hefenieder, Department of Social and 

Rehabilitation Services, Billings; K. Amy 

Pfeifer, Deptment of Social and Rehabilitation 

Services, Helena 

Filed: 

Submitted: December 10, 1992 

Decided: March 5, 1993 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

Sherry Lynn Keele, formerly Sherry Lynn Brennan (Brennan), 

appeals the modification of a child support order entered in the 

District Court for the Thirteenth Judicial District, Yellowstone 

County. We reverse. 

We restate the issue presented as: 

Does incarceration constitute a substantial and continuing 

change in circumstances so as to make the terms of an existing 

child support order unconscionable and, as such, warrant 

modification? 

In 1983, Brennan gave birth to a son, Michael Anthony Mooney 

(Michael). Michael's father was Clayton Michael Mooney (Mooney). 

In 1984, Mooney filed a petition seeking parental rights. After a 

substantial amount of legal maneuvering by both parents, a custody 

and support agreement was reached. Judgment on the agreement was 

entered in 1988. The order settled questions of paternity, 

custody, and support. The parents had joint custody with Mooney 

designated primary custodial parent. 

In 1989, Brennan moved the District Court for modification of 

the final custody and support decree pursuant to S 40-4-219, MCA. 

In February 1991, the District Court denied Brennan's motion. The 

District Court found Brennan had not satisfied the conditions set 

forth in § 40-4-219, MCA. In February 1991, and again in March 

1991, Mooney was arrested and subsequently pled guilty to felonious 

criminal acts. 
After the criminal incidents occurred in March 1991, Brennan 

moved the ~istrict Court for temporary custody of Michael. In 

April 1991, the District Court grantedtemporary custody to Brennan 

and issued a show cause order on the motion. Prior to a hearing on 

the show cause order, the parents stipulated that they would 

continue to have joint custody of Michael, but Brennan would have 

temporary physical custody. In addition, after it became apparent 

he would be incarcerated in Deer Lodge as a result of pleading 

guilty to the criminal charges, Mooney stipulated that Brennan 

would be the primary custodial parent. 

Having been awarded primary custody of Michael, Brennan moved 

for an award of child support from Mooney in May 1991. After a 

hearing in November 1991, the District Court awarded Brennan child 

support in the amount of $500 per month for April, May, June, and 

July 1991. The $500 amount was based on Mooney's income prior to 

his incarceration. The District Court then modified the amount of 

child support and ordered Mooney to pay support in the amount of 

$50 per month for August, September, October, and November 1991. 

Mooney began serving his prison sentence on July 31, 1991. 

Additionally, the District Court ordered Mooney to pay future child 

support payments of $50 per month beginning in December 1991. 

These payments were subject to modification upon Mooney's release 

from prison and return to employment. 

The District Court reasoned that Mooneyls incarceration 

qualified as a change of circumstances so substantial and 

3 
continuing as to make the terms of the support order based upon his 

pre-incarceration income unconscionable. It found incarceration 

was not a voluntary act of unemployment or under-employment. 

Therefore, income could not be imputed to Mooney because he was 

neither unemployed nor under-employed of his own volition. Brennan 

appeals the modification of the support order. 

Does incarceration constitute a substantial and continuing 

change in circumstances so as to make the terms of an existing 

child support order unconscionable and, as such, warrant 

modification? 

In this appeal, we decide for the first time whether the 

voluntary commission of a criminal offense and subsequent 

involuntary incarceration is grounds for a reduction or suspension 

of a child support obligation in Montana. Although the District 

Court couched its order in terms of findings, it was interpreting 

a statute in light of the facts presented and therefore made a 

conclusion of law as to the application of § 40-4-208(2) (b) (i), 

MCA . Our standard of review is "whether the tribunal's 

interpretation of the law is correct." Steer, Inc. v. Department 

of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603. 

We are mindful that a number of jurisdictions which have 

addressed this issue have decided in favor of reducing or 

suspending the incarcerated parent's support obligation. Some of 

these courts follow an Oregon Court of Appeals decision which was 

overruled in 1991. Edmonds v. Edmonds (0r.App. 1981) , 633 P. 2d 4, 
overruled by Willis v. Willis (0r.App. 1991), 820 P.2d 858. Under 

the Edmonds line of reasoning, an incarcerated parent is entitled 

to modification unless it can be affirmatively shown that he has 

assets or income with which to make the payments or the parent 

became imprisoned to avoid support obligations. See, e.g. Johnson 

v. 08Neill (Minn.App. 1990), 461 N.W.2d 507; Pierce v. Pierce 

(Mich.App. 1987), 412 N.W.2d 291. 

Additionally, some courts reason the continuation of a child 

support obligation imposes an additional penalty upon one whom the 

state has already penalized for an offense. Pierce, 412 N.W.2d at 

293. Still others reason the continuation of a support obligation 

while the parent is incarcerated does nothing to help the child and 

simply adds to an accumulated burden which falls upon the parent 

when released from prison. Leasure v. Leasure (Pa.Super. 1988), 

549 A.2d 225, 227. We are not persuaded by these holdings. 

The continuation of the child support obligation while 

incarcerated does not constitute double punishment. It is simply 

a continuation of that which the incarcerated parent is bound under 

the law to do. Furthermore, although the parent will have a debt 

burden to assume upon release, repayment of the arrearage may be 

scheduled by the District Court according to post-incarceration 

income. 

This Court has held that "a substantial change in the 

financial condition of the parent . . . has been recognized as 

grounds for modification of a previously-entered child support 

5 
order," and we will continue to adhere to this holding in 

appropriate cases. In re the Marriage of Rome (1980), 190 Mont. 

495, 497, 621 P.2d 1090, 1092. However, we believe a rule 

absolving a parent of a child support obligation while incarcerated 

due to a voluntary criminal act is "in conflict with other wellestablished principles of domestic relations law . . . ." Willis, 

820 P. 2d at 859. As we have often held, the support of children is 

a matter of social concern. Fitzgerald v. Fitzgerald (1980), 190 

Mont. 66, 70, 618 P.2d 867, 869. "It is an obligation that the 

father owes the state as well as his children." Fitzserald, 618 

P.2d at 869. 

Section 40-4-208, MCA, allows a decree of child support to be 

modified under certain circumstances. Subsection (2) (b) (i) , which 

is applicable to the facts presented here, reads: 

(b) Whenever the decree proposed for modification 

contains provisions relating to . . support, 

modification . . . may only be made: 

(i) upon a showing of changed circumstances so 

substantial and continuing as to make the terms 

unconscionable; 

There is no question that incarceration constitutes a substantial 

change in circumstances. Nor do we question the continuity of the 

change of circumstances through the duration of the incarceration. 

However, the issue is whether the change of circumstances caused by 

incarceration rises to the level of unconscionability so as to 

warrant a suspension or reduction of a parent's moral, as well as 
legal, obligation to support his own. In re the Marriage of Hickey 

(1984), 213 Mont. 38, 45, 689 P.2d 1222, 1226. 

In the past, we have declined to adopt, or rely upon, a 

solitary definition for the term 'lunconscionable" as used in 5 40- 

4-208, MCA. Green v. Green (1978), 176 Mont. 532, 539, 579 P.2d 

1235, 1238-39. Rather, our interpretation of the term hinges upon 

a case-by-case analysis after scrutinizing the underlying facts. 

In re the Marriage of McNeff (1983), 207 Mont. 297, 300, 673 P.2d 

473, 475. As we have said, "we know when we are shocked.'' Green, 

579 P.2d at 1239. In light of the facts presented here, we 

conclude it is not unconscionable to deny a temporary termination 

or reduction in child support obligations due to incarceration, 

notwithstanding the fact that the jailed parent earns no income 

while incarcerated and does not have assets which could be utilized 

to pay the support. 

We agree with, and adopt the reasoning of, the Oregon Court of 

Appeals in Willis. In Willis, the Court of Appeals reasoned: 

Criminal conduct of any nature cannot excuse the 

obligation to pay support. We see no reason to offer 

criminals a reprieve fromtheir child support obligations 

when we would not do the same for an obligor who 

voluntarily walks away from his job. Unlike the obligor 

who is unemployed or faced with a reduction in pay 

through no fault of his own, the incarcerated person has 

control over his actions and should be held to the 

consequences. 

A person who has a support obligation should not profit 

from his criminal conduct, particularly at his children's 

expense. We recognize that an individual in father's 

situation--assuming that he is genuinely indigent and 

unable to pay--cannot be found in contempt for not paying 
support while incarcerated. However, this is not a 

contempt proceeding: it is simply a modification 

proceeding. Father should not be able to escape his 

financial obligation to his children simply because his 

misdeeds have placed him behind bars. The meter should 

continue to run. Accordingly, we hold the father's 

support obligation continues to accrue during his 

incarceration. 

Willis, 820 P.2d at 860. 

Additionally, Noddin v. Noddin (N.H. 1983), 455 A.2d 1051, and 

Proctor v. Proctor (Utah App. l989), 773 P.2d 1389, are persuasive. 

Although these cases held modification of child support payments 

were unwarranted where the incarcerated parent had assets, the 

reasoning of both courts extends to the instant case. In Noddin, 

the New Hampshire Supreme Court reasoned that while unemployment 

and diminution of earnings were commonly grounds for modification 

of a child support decree, a change in financial condition brought 

about by the voluntary waste of one's talents and assets is not 

reason for modification of a decree. Noddin, 455 A.2d 1053 (citing 

2A W. Nelson, Divorce and Annulment Sl7.16, at 87-88 (1961 rev. 

ed.)). The Utah Court of Appeals in Proctor reasoned similarly. 

"[Aln able bodied person who stops working . . . as a result of 

punishment for an intentional act, nonetheless retains . . . the 

duty to support his or her children." Proctor, 733 P.2d at 1391. 

The above reasoning, and that promulgated in Willis, is sound 

and in line with the public policy of this state. The provisions 

of Title 40, Chapter 4 are to be liberally construed to promote the 

underlying purposes of the chapter. Section 40-4-101, MCA. One 
purpose is to require parents to provide support for their 

children. 

This chapter shall be liberally construed and applied to 

promote its underlying purposes, which are to: 

(4) make reasonable provision for . . . minor children 

during and after litigation; 

Section 40-4-101(4), MCA. Under the facts of this case, we hold 

the District Court was incorrect as a matter of law in ruling 

incarceration meets the requirements of S 40-4-208(2)(b)(i), MCA, 

and justifies a modification of child support payments because of 

resultant loss of income. 

The decision of the District Court is reversed and remanded 

for further proceedings consistent with this opinion. 

We concur: 

h 
Justice Terry N. Trieweiler, dissenting. 

I dissent from the opinion of the majority. 

Although the majority's opinion is long on platitudes, it is 

short on practical benefit to the dependant child; it jeopardizes 

the father's chances for successful reentry into law abiding 

society; and it ignores the vast majority of well-reasoned 

decisions on this subject. 

Child support in Montana is governed by three principal 

statutes. Section 40-4-204(2) (e), MCA, lists as one of the 

principal factors to be considered in assessing a parent's child 

support obligation the financial resources and needs of the 

noncustodial parent. Section 40-5-209, MCA, requires the 

Department of Social and Rehabilitation Services to adopt uniform 

child support guidelines, and § 40-4-204(3), MCA, requires that 

those guidelines be applied in the court's calculation of a 

noncustodial parent's child support obligation. The guidelines are 

found in §§ 46.30.1501, et seq., ARM, and provide for child support 

based almost exclusively on a parent's financial ability to pay. 

It is clear, therefore, that throughout our statutory and 

administrative scheme for arriving at a parent's obligation to pay 

child support, the parent's financial ability to make those 

payments is the primary concern. 

It stands to reason that under 5 40-4-208(2) (b) (i) , MCA, which 

provides for a modification of a child support obligation where 

circumstances have changed to the extent that the prior obligation 

is unconscionable, the primary consideration has to be a change in 

10 
the parent's financial ability to continue making the support 

payments. If "unconscionable" means anything, it has to at least 

include the circumstances where a parent is unable to make 

continued payments because he or she has no income nor any other 

assets with which to make the payments. 

Much of the majority opinion does not withstand scrutiny. For 

example, the opinion states that imposing an impossible burden on 

the father in this case is not double punishment because it is 

simply a continuation of his previous obligation under the law. 

However, that is not correct. His previous obligation under the 

law was to make support obligations which were based on his ability 

to pay. Under the majority decision, he incurs a debt for an 

obligation that he has no ability to pay. 

The majority goes on to say that even though the parent may 

have a debt upon his release from prison, the District Court can 

figure out some schedule for payment of the debt. However, if we 

presume that upon his release from prison Mr. Mooney goes back to 

work, and if we further presume that his support obligation at that 

time reflects the maximum amount he is able to pay based on his 

income, where is he supposed to get the additional amounts with 

which to repay the debt that accumulated during his incarceration? 

The majority dismisses the practical difficulties of the 

father's predicament by concluding that he has a moral and legal 

obligation to support his own child. How is that moral obligation 

satisfied by entering judgment against the father which he is 

completely unable to satisfy and which will place additional 
financial pressure on a person who has already demonstrated that he 

has a difficult time following the law? 

The majority cites with approval language from another 

jurisdiction to the effect that unless the child support obligation 

is continued during incarceration, the parent could potentially 

profit from his illegal conduct. How can the father in this case, 

who was earning $30,000 before his imprisonment, profit by giving 

up that income in exchange for being relieved of a $500 a month 

child support obligation? The accounting system by which these 

profits have been calculated is a novel one. 

The problem with the majority's analysis of this case is the 

manner in which it frames the issue. It is not necessary that we 

decide that incarceration always relieves a parent of his or her 

child support obligation, or that in the alternative, the parent is 

never relieved of that obligation. The vast majority of 

jurisdictions have decided that a parent who is imprisoned, and as 

a result loses his or her income, is relieved of the obligation to 

make child support payments unless the parent has other assets with 

which to make those payments. I agree with the decision of the 

Illinois Court of Appeals in Peopleexrel. Meyerv. Nein (Ill. App. 4 Dist. 

1991), 568 N.E.2d 436, wherein that court stated: 

Having considered all of the authorities from other 

States, we agree with the Pennsylvania court which 

compared incarceration to an involuntary loss of 

employment (Leasure v. Leasure (1988 ) , 378 Pa. Super. 613, 

616, 549 A.2d 225, 227; accordPetersv. Peters (Ohio Ct. ~pp. 

1990), 1990 W1 127193); we also agree, however, that 

incarceration, as a foreseeable result of criminal 

activity, does not ipsofacto relieve one of the obligation 

to pay child support. (Division of Child Support Enforcement ex rel. 
Harperv. Barrows (Del. 1990) , 570 A.2d 1180, 1183 (and cases 

cited therein)). Decisions on modification, when 

questions of this type appear, are best left to the 

discretion of the trial court. This view is consistent 

with the decisions of the courts of other States, apart 

from the decision in Olzler[v. Ohler (1985), 220 Neb. 272, 

369 N.W.2d 6151; and the exercise of that discretion has 

generally been guided by principles summarized in Barrows: 

We have found no jurisdiction which currently 

suspends or discharges child support obligations if 

an affirmative showing has been made that an 

incarcerated support obligor has available assets. 

Meyer, 568 N.E.2d at 437. 

Other cases in accord with the Meyer decision are Pierce v. Pierce 

(Mich. ~pp. 19871, 412 N.W.N 291; Clemansv. Collins (Alaska 1984), 679 

P.2d 1041; Nab v. Nab (Idaho App. 1988), 757 P.2d 1231; Johnson v. OrNeil1 

(Minn. App. 1990), 461 N.W.2d 507. 

Even the New Hampshire and Utah decisions relied on by the 

majority found it significant in those cases that the parents 

against whom child support obligations were to be enforced had 

assets with which to satisfy the obligation. In this case, there 

was no evidence that Clayton Mooney had any assets with which to 

satisfy the support obligation which will continue to accrue during 

his imprisonment. 

One of the original and leading decisions which denied 

suspension of child support payments during a period of 

incarceration was Ohler v. Ohler (Neb. 1985) , 369 N. W. 2d 615. However, 

the dissent to that opinion by Chief Justice Krivosha is more 

frequently cited and followed by other courts. In his dissent, 

Chief Justice Krivosha stated: 
We obviously recognize that the child support 

judgment will not be paid during the time that the parent 

is incarcerated, and therefore the judgment will simply 

accrue with interest. Such a situation provides little 

or no benefit to anyone. The children do not receive the 

benefit of the proceeds during the time they require the 

funds, and the parent is simply confronted with a large, 

nondischargeable judgment upon release from prison, at a 

time when the prospect of paying a large judgment with 

interest is extremely unlikely. At current interest 

rates, the judgment will double every six or seven years. 

How this can be in the children's best interest is 

difficult for me to imagine. 

I am further persuaded by the reasoning of the 

Oregon court which concludes that a court should not be 

permitted to impose a judgment and itself make the 

payment of that judgment impossible. We would not permit 

such a result to exist in any other situation. 

In dissenting, I do not for a moment ignore the fact 

that the parent against whom the judgment runs has been 

convicted of violating a law and has brought the problem 

into being by reason of his own act. Nevertheless, the 

violation of the criminal law was a matter which the 

State addressed, and for which the individual is now 

paying the penalty. To impose an additional penalty is 

not appropriate. 

Older, 369 N.W. 2d at 618-19 (Krivosha dissenting) . 

This case does not present a situation where the father has 

tried to avoid his obligation to his child. This father and mother 

were not married, and in spite of that fact, it was the father who 

initiated a paternity action to establish his parental rights. He 

was the primary custodian and sole financial supporter of his child 

from shortly after birth until several months after the offenses 

which resulted in his imprisonment. He neither requested nor 

received child support payments from the child's mother. 

Prior to his imprisonment, the father was employed in a family 

business in which he is a part owner. He did not leave his 
employment and give up his income by choice. There is no evidence 

that he chose imprisonment and unemployment as an alternative to a 

$500 monthly child support obligation. 

The Child Support Enforcement Division of the Montana 

Department of Social and Rehabilitation Services has filed an 

amicus curiae brief in this case. In its brief, the Division 

opposes suspension of child support payments during a period of 

imprisonment, regardless of the imprisoned parent's abilityto make 

those payments. The Division makes the argument that it is the 

child's best interest with which the court should be concerned, 

rather than the imprisoned parent. However, nowhere in the 

Division's brief, nor in the majority opinion, is there any 

explanation for how this child's interest is going to be served by 

imposing on the parent who has always voluntarily supported him, an 

obligation to make support payments during a period of time when he 

has no income and no assets with which to make those payments. 

Nowhere in the Division's brief, nor in the majority's opinion, is 

there any explanation for how the child is best served by imposing 

a debt on this parent which in all probability can never be 

satisfied. 

The District Court did not suspend the father's obligation to 

make child support payments as a reward because of his criminal 

conduct. The obligation was suspended during the father's period 

of imprisonment because, as a practical matter, the obligation 

could not be paid and, as a principle of statutory law, his future 

obligation after his release from prison will have to be based on 
his ability to pay. To tack an accumulated debt on to what the 

father is able to pay is to impose an impossible obligation. 

The majority subscribes to the view that to suspend an 

obligation that cannot be paid rewards an incarcerated parent and 

that to enforce an obligation that cannot be paid somehow benefits 

the dependent child. I cannot grasp the logic of the majority's 

analysis. Therefore, I dissent from the majority opinion. 

Justices Karla M. Gray and William E. Hunt, Sr., join in the 

foregoing dissent of Justice Terry N. Trieweiler. 

Justice 
March 5, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Judy A. Williams 

Attorney at Law 

2442 First Ave. No. 

Billings, MT 59101 

George T. Radovich 

Attorney at Law 

926 Main, Ste. #9 

Billings, MT 59105 

K. Amy Pheifer 

Dept. of Social & Rehabilitation Services 

P.O. Box 5955 

Helena, MT 59604 

Ann Hefenieder 

Dept. of Soc. & Rehab. Services 

1127 Alderson Ave., Ste. 100 

Billings, MT 59102 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATEOF MONTANA