No. 83-08 

IN THE SUPFSIIE COURT OF THE STATE OF MONTANA 

1983 

IN IPE THE MARRIAGE OF 

CINDY LUELLA McNEFF, 

Petitioner and Respondent, 

and 

TIMOTHY RAY McNEFF, 

Respondent and Appellant. 

Appeal from: District Court of the Nineteenth Judicial District, 

In and for the Countv of Lincoln 

Honorable Robert M. Holter, Judge presiding 

Counsel of Record: 

For Appellant: 

Donald L. Shaffer, Libby, Montana 

For Respondent : 

Sverdrup & Spencer, Libby, Montana 

Scott B. Spencer, Libby, Montana 

Submitted on briefs. September 2, 1983 

Decided. December 22, 1983 

P 

clerk 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

This appeal is taken from a judgment modifying the 

support provisions of a 1980 decree dissolving the marriage 

of the parties. Appellant objects to the District Court 

raising the amount owed for support of the minor children of 

which respondent has custody. 

Cindy Luella McNeff (hereinafter Mother) and Timothy 

Ray McNeff (hereinafter Father) were married on June 22, 

1972, in Laramie, Wyoming. Two children were born of this 

marriage; Trevor Ray McNeff, now 10 years of age, and Camron 

Zack McNeff, now 4 years of age. The marriage was dissolved 

on July 28, 1980. Pursuant to the decree of dissolution, 

Mother was granted custody of the children and Father was 

given specific visitation rights. Mother did not have 

visitation rights during two months in the summer. Father 

was ordered to pay all debts of the marriage, all medical 

expenses of the children and $100 per month per child to 

Mother for their support. The total debt incurred during 

the course of the marriage was over $32,000. 

Two years later on July 29, 1982, Mother petitioned 

the District Court for modification of visitation rights and 

support payments. After a hearing held before Judge Robert 

M. Holter, judgment was entered granting the relief 

requested. The visitation rights of Mother during the 

summer were provided for. Father's support obligation was 

raised from $100 per month per child to $175 per month, but 

Father was relieved from the obligation for the two months 

he has custody. From that judgment this appeal is taken. 
The sole issue raised by Father is whether the facts 

of the case show a change of circumstances so substantial 

and continuing as to make the amount of support payments set 

forth in the 1980 decree of dissolution unconscionable and 

allow the District Court to modify those terms. 

Father properly sets forth the threshold which must be 

met. In absence of a written agreement, a modification of 

the child support terms in a decree of dissolution may only 

be ordered, "[Ulpon a showing of changed circumstances so 

substantial and continuing as to make the terms 

unconscionable." Section 40-4-208(2)(b)(i), MCA. As there 

was no written agreement between the parties, we submit the 

facts to this statutory test. 

The facts of the case are relatively uncontested. 

Father must show that those facts clearly preponderate 

against the District Court's ruling to gain reversal. 

Reynolds v. Reynolds (Mont. 1983), 660 P.2d 90, 40 St.Rep. 

321. That preponderance of evidence is necessary to 

overcome the presumption that the judgment of the District 

Court is correct. Jensen v. Jensen (1979) 182 Mont. 472, 

597 P.2d 733. In addition, this Court views all the 

evidence in a light most favorable to the prevailing party. 

Nicolai v. Nicolai (Mont. 1981), 631 P.2d 300, 38 St.Rep. 

1100. 

The testimony elicited at the District Court hearing 

showed that Mother had been employed when the decree of 

dissolution was entered, but was unemployed when she filed 

the petiton for modification. At the date of the hearing 

she was temporarily employed, but her job was to terminate 

in approximately two months. Mother's new husband was 
providing most of the support for the children, as well as 

making support payments of his own. She testified that even 

with help from her new husband's income, the $100 per month 

payments for each child is insufficient to properly care for 

the children. And as she stated during the hearing, "[I] t 

costs a lot [more] to buy a bag of groceries now than it did 

two years ago." 

Father testified that his net pay was between $1100 

and $1200 per month. Under the terms of the decree he was 

liable for all debts of the marriage; that amount originally 

was over $32,000 and in the two years since the dissolution 

was granted it had been reduced by over $11,000. Included 

in this debt were payments for medical bills for the 

children, a house trailer in which he now resides, and a 

pickup which Mother was given in the decree. Father 

testified that the low support payments set forth in the 

decree were in exchange for his assuming all the debts of 

the marriage. He further testified that he owes 

approximately $5,000 more to his parents which should be 

included in the marital debt. Father has not remarried. 

This Court has refused to define the term 

unconscionable as it is used in Section 40-4-208, MCA. 

Green v. Green (1978), 176 Flont. 532, 579 P.2d 1235. Its 

interpretation must be made on a case by case basis after 

scrutinizing the underlying facts. Green, 176 Mont. at 539, 

579 P.2d at 1238-1239. However, that interpretation must 

begin with an objective standard. That standard is found in 

the basic purpose behind support payments and how that 

purpose is to be achieved. The purpose of ordering child 

support payments is to " [MI ake reasonable provision(s) for 
spouse and minor children during and after litigation . . ." 

Section 40-4-101(4), MCA. "Child support must reflect a 

balance among the needs of the parties involved and the 

ability of the parents to pay." Rome v. Rome (Mont. 1981), 

621 P.2d 1090 at 1092, 38 St.Rep. 50 at 52. Thus the 

determination of what is unconscionable is made by reference 

to the relative position of the parties, and how close to 

this balance the present arrangement is. 

The District Court found on the facts presented that 

the existing arrangement was unconscionable and we agree. 

As the presiding judge noted, it is very difficult to 

support a child on $100 per month. It became considerably 

more difficult when Mother lost her job. It appears from 

the transcript that the judge did not feel the proper 

balance had been struck in the original decree, and when 

Mother lost her job the balance shifted heavily toward 

unconscionability. Father contends that Mother simply 

losing her job is an insufficient change in circumstances to 

allow modification under the statute. However, again this 

change must be analyzed in light of the prevailing facts. 

Here neither party is bathed in riches, and when the already 

small amount available for the children's support is reduced 

by even the slightest amount, it has great impact. The 

District Court was entirely justified in finding that the 

changed circumstances made the amount of support payments 

unconscionable, and Father has failed to persuade us 

otherwise. 

We find that a preponderance of the evidence supports 

the District Court's ruling and so hold. 

Affirmed. 
We concur: 

PA&- d(d~ Chief Justice 

- Justices C/