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 Thirteenth Judicial District, 

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; 1995 
Justice William E. Hunt, Sr., delivered the Opinion of the Court. 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1995 Internal Operating Rules, the following decision shall not be 

cited as precedent and shall be published by its filing as a public 

document with the Clerk of this Court and by a report of its result 

to State Reporter Publishing Company and West Publishing Company. 

In July 1993, respondent instituted proceedings in the 

Thirteenth Judicial 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 to pay, 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, and denied 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 in applying 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. Did the District Court err in failing to find a change in 

circumstances substantial enough to render the existing child 

support arrangements unconscionable? 

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3. Did the District Court err ln its refusal to deduct from 

the unpaid support obligation $1,580.00 that was sent to respondent 

by appellant? 

Appellant and respondent were divorced in 1986. During their 

marriage, they had three children, all of whom were over the age of 

21 at the time of the divorce. The oldest child, however, was and 

is entirely disabled due to profound retardation. 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 

paid respondent $5,800.00 for the claimed delinquent child support, 

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 again failed to pay child support to respondent. 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 to modify the dissolution decree, asking the court 

to reduce his support obligation from $200.00 to $50.00 per month. 

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The 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 

Did the District Court err in applying 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? 

Appellant first alleges that § 40-4-208 (2) (b) , MCA, 

applicable to a default for an 

disabled child, but that 

decree 

the 

ordering support 

statute applies only to 

is 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 raises this issue for the first time on appeal. This 

Court will not address an issue that was not raised at the trial 

court level. In re Marriage of Blair (1995), 894 p.2d 958, 963, 52 

St.Rep. 401, 404; In re Marriage of Binsfield (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. 

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Issue 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 substantially as 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 

precipitously since the 1986 divorce, while respondent's income has 

increased. 

A major obstacle faced by the trial court was the fact that 

the income of the respective parties was not determined at the time 

of the divorce. Both parties 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 

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income was (or could have been, had he worked steadily), the trial 

court faced a difficult task in attempting to determine whether his 

income had declined substantially. 

Regardless of whether appellant's circumstances had changed or 

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 in interest income the previous year, and the house owned 

by appellant had a basis for depreciation of $200,000. Considering 

all these facts, the court ruled it was not unconscionable to 

require appellant to contribute $200.00 each month towards 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 

in the last nine years. However, such increases can be credited to 

her having found and kept a secure job in Texas. Both before and 

after the divorce, respondent has worked steadily while appellant 

has not. Respondent also has sole responsibility for the care of 

the adult disabled son, who lives with her and who incurs expenses 

beyond those which would be generated by a healthy minor child. 

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Her 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 claims the checks were for child support, 

while respondent claims they were gifts, given in an attempt to win 

her back. The characterization of 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. Delaney v. Delaney (1981), 195 Mont. 259, 635 P.2d 

1306. At trial, the District Court had the opportunity to listen 

to testimony of each party and observe their behavior 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 viewed this as part of appellant's attempt to reduce 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 hold that the District Court's findings as to the gifts and 

the money order are not clearly erroneous and should be affirmed. 

Affirmed. 

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