No. 95-165 IN THE SUPREME COURT OF THE STATE OF MONTANA 1995
IN RE THE MARRIAGE OF BARBARA BALL, Petitioner and Respondent, and LUCIEN C. BALL, Respondent and Appellant.

APPEAL FROM: District Court of the ThirteenthJudicialDistrict, In and for the County of Stillwater, The Honorable Robert Holmstrom, Judge presiding.

COUNSEL OF RECORD:

Filed: For Appellant: Gerald J. Neely, Billings, Montana For Respondent: Kevin T. Sweeney, Sweeney 

### & Healow, Billings, Montana

Submitted on Briefs: July 6, 1995 Decided: September 14; 1995Justice William E. Hunt, Sr., delivered the Opinion of the Court.

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1995 Internal OperatingRules, the following decision shall not be citedasprecedent and shallbepublishedby its filing as a public document with the Clerkof this Court andbya report of its result to State Reporter Publishing Company and West Publishing Company. In July 1993, respondent instituted proceedings in the ThirteenthJudicial District Court, Yellowstone County, to enforce

a court order requiring appellant to contribute $200.00 per month towards the support of their adult disabled child. Appellant then moved the court for a modification of the divorce decree and a reduction in the amount of support he is required topay, claiming

a change in circumstances substantial enough to make the terms of the decree unconscionable. Both matters were addressed at trial, after which the court found appellant to be in contempt for nonpayment of support, anddenied appellant's motion for modification of the divorce decree. We affirm. We consider the following issues raised on appeal: 1. Did the District Court err inapplying the standards set forth in § 40-4-208(2)(b), MCA, to a default divorce decree which provides for the support of an adult disabled child? 2. DidtheDistrict Court errinfailingto find a change in circumstances substantial enough to render the existing child support arrangements unconscionable?

23. Did the District Court err ln its refusal to deduct from theunpaidsupportobligation$1,580.00 thatwas sent torespondent by appellant? Appellant and respondent were divorced in 1986. Duringtheir marriage, theyhadthree children, all ofwhomwere overthe age of 21 at the time of the divorce. The oldest child, however, was and is entirelydisabled due toprofoundretardation. This child, who is now 34, remains dependent upon his parents for his support and

care.Appellant did not appear in the 1986 divorce action, and a default judgment was entered against him. The divorce decree gave custody of the adult disabled son to respondent and ordered appellant to pay her $200.00 per month for the disabled son's support. In July of 1992, appellant purchased respondent's interest in the family residence, but respondent conditioned her signing of a quit-claim deed upon appellant's also tendering the entirety of then-delinquent child support. Appellant thereafter paidrespondent $5,800.00 fortheclaimeddelinquent childsupport, and respondent executed the quit-claim deed in his favor. From the time this lump sum payment was made until the date the District Court entered its 1994 judgment in this matter, appellant againfailedtopaychildsupport torespondent. Because of his continued non-payment, respondent moved the court to find him in contempt pursuant to § 40-5-601, MCA. In response, appellant moved tomodify the dissolution decree, askingthe court to reduce his support obligation from $200.00 to $50.00 permonth.

3The District Court found appellant had failed to show a change in circumstances so substantial as to make the support arrangements unconscionable, and therefore declined to modify the existing decree. The court also found appellant to be in contempt because of his failure to comply with the dictates of the decree. Issue 1 DidtheDistrict Court errinapplyingthe standards set forth in § 40-4-208(2)(b), MCA, to a default divorce decree which provides for the support of an adult disabled child? Appellant first alleges that § 40-4-208(2) (b), MCA, for an applicable to a default disabled child, but thatdecree the ordering support statute applies only tois not adult minor children. Since this statute does not explicitly mention adult disabled children, appellant insists that it is inapplicable, and therefore the District Court "can examine the entire situation de novo, and if this is done, the district court's abuse of discretion is apparent." Appellant raisesthis issue for the first time onappeal. This Court will not address an issue that was not raised at the trial court level. InreMarriage of Blair (1995), 894 p.2d 958, 963, 52 St.Rep. 401, 404; InreMarriage ofBinsfield (1995), 888 P.2d 889, 893, 52 St.Rep. 16, 20. We note in passing, however, that this

same statute was the sole basis for appellant's motion to modify the support decree. His attack upon it now is disingenuous at best.

4Issue 2 Did the District Court err in failing to find a change in circumstances substantial enough to render the existing child support arrangements unconscionable? Existing support arrangements may be modified only under certain specific circumstances. Section 40-4-208(2) (b), MCA, provides as follows: (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 circumstances so substantial and continuous as to make the terms unconscionable; (ii) upon written consent of the parties; or (iii) upon application by the department of social and rehabilitative services

. Whether circumstances have changed so substantiallyas to render a support decree unconscionable is a question of fact. This Court will review a district court's findings of fact to determine if they are clearly erroneous. In re Marriage of Kovash (1995), 893 P.2d 860, 862-63, 52 St.Rep. 280, 281. Appellant alleged at trial that his income has decreased precipitouslysincethe 1986divorce, whilerespondent's incomehas increased. A major obstacle faced by the trial court was the fact that the income of the respectivepartieswasnot determinedat the time of the divorce. Bothparties acknowledge that respondent was then earning approximately two-thirds of the family's income, but both also agree that appellant, by his own choice, was not working regularly at that time. Without more information on what his

5income was (or could have been, had he worked steadily), the trial court faceda difficult task inattemptingtodeterminewhetherhis income had declined substantially. Regardlessofwhetherappellant'scircumstanceshadchangedor not, the trial court found the support agreement was not unconscionable. The court acknowledged that appellant's usual income is only $675.00 per month. However, the court found that appellant was capable of working but that he had not attempted to find work. The court further found appellant had received over $1,000.00 ininterest income thepreviousyear, andthehouse owned byappellanthada basis fordepreciationof $200,000. Considering all these facts, the court ruled it was not unconscionable to require appellant tocontribute $200.00 eachmonthtowards the care of his son. The information regarding appellant's income came from his 1993 income tax return. Appellant's ability to work and his failure to seek work were established by his own testimony. This decision of the trial court was not clearly erroneous. Appellant makes much of the fact that respondent earns more money than he does, and her income has in fact increased somewhat inthe last nineyears. However, suchincreases canbe creditedto her having found and kept a secure job in Texas. Both before and after the divorce, respondent has worked steadilywhile appellant has not. Respondent also has sole responsibility for the care of the adult disabled son, who lives withher andwho incurs expenses beyond those which would be generated by a healthy minor child.

6Her changes in circumstances do not make appellant's support obligation unconscidnable; on the contrary, it would be unconscionable to reward respondent's responsibility by expecting her to shoulder appellant's burden as well as her own. The trial court found that the existing support arrangement was not unconscionable, and this finding is not clearly erroneous. Issue 3 Did the District Court err in its refusal to deduct from the unpaid support obligation $1,580.00 that was sent to respondent by appellant? From December of 1990 through June of 1992, appellant sent nine checks to respondent, totalling $1,530.00 In addition, he sent her a money order in the amount of $50.00 after she had commenced the action for contempt. The parties disagree on how the $1,530.00 should be characterized; appellant claimsthecheckswere forchildsupport, while respondent claimstheyweregifts, giveninanattempt towin herback. The characterizationof the checks is important because if they are child support, then appellant must be credited as having paid that amount. If the checks are gifts, however, they cannot be considered as payment of an obligation arising from a divorce decree. Delaneyv. Delaney (1981), 195Mont. 259, 635 P.2d 1306. At trial, the District Court had the opportunity to listen to testimonyof eachpartyand observe theirbehavior and demeanor and it concluded the checks were gifts.

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### ., Appellant also tendered a $50.00 money order to respondent specifically for child support after this action was commenced. Respondent viewedthis aspartof appellant's attempt toreduce the monthly support from $200.00 to $50.00, and feared her acceptance of the money order might be viewed as acceptance of a support reduction in general. She therefore returned the money order to appellant. We holdthat theDistrict Court's findings as to thegifts and the money order are not clearly erroneous and should be affirmed. Affirmed.

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