No. 80-209 INTHE SUPREME COURT OF THE STATE OF MONTANA 1980

INRE THE MARRIAGE OF NANCY JANE ROME, Petitioner and Respondent,

vs

# . NELSON ALLEN ROME, Respondent and Appellant.

Appeal from: DistrictCourt of the Third JudicialDistrict, In and for theCounty of Powell. Honorable Robert Boyd, Judge presiding. Counsel of Record: For Appellant: William R. Taylor, DeerLodge, Montana For Respondent: Ted L. Mizner, County Attorney, DeerLodge, Montana James J. Masar, DeerLodge, Montana

Submitted on briefs: August 23, 1980 Decided:

# JAB1& @@ Filed: 

## - 1

# 2j/fJ@iMr. 

### Chief Justice Frank I. 

### Haswell delivered the Opinion of the Court. Respondent Nelson Allen Rome 

### appeals from 

### a judgment entered inPowell County arisingout of a URESA action, ordering him topay child support arrearages, and denying a modification of child support payments. Nancy Jane Rome 

### and Nelson Allen Rome 

### were married in 1968 and a decree of dissolution 

### was entered inPowell County in 1978. The 

### care and custody of the 

### two children born of the marriage 

### was given toNancy Rome. The parties entered into a writtenproperty settlement agreement, which provided, among otherthings, that Nelson Rome 

### was to pay $150 per month per child inchild support. InDecember 1979, Nancy Rome 

### petitioned the 

### ~istrict Court, GallatinCounty, for enforcement of the support provisions of the dissolution decree. The action

### was transferred toPowell County and was consolidated with an action initiated by Nelson Rome tomodify support payments to $100permonth per child, because of changed circumstances. The districtjudge denied the petition formodification, finding thatNelson Rome voluntarily entered into circumstances reducing his ability 

### to pay, and that the change incircumstances was insufficient 

### to warrant the reduction. He 

### also ordered Nelson Rome 

### to pay arrearages of $1100. Nelson appeals, bringing one issue before thisCourt: Did the District 

### Court 

### err inrefusing to reduce child supportpayments where appellant alleged changes inhis financial condition, brought about by a voluntary change inemployment and by his remarriage? Section 40-4-208, MCA, 

### sets 

### out the circumstances inwhich a 

### modificationof 

### a support ordermay be entered: "Modification and termination of provisions for 

### maintenance, support, and propertydisposition. (1)

### Except 

### as otherwis~rovided in40-4-201( 6), a decree may be modified by a 

### court as to maintenance or support only as to installments accruing subsequent 

### to the motion for modification."(b)Whenever the decree proposed formodification contains provisions relating 

### to maintenance 

### or support, modification under subsection (1 ) may onlybe made: "(i)upon 

### a showing of changed circumstances so substantial and continuing 

### as tomake the 

### terms unconscionable

# ..."

The districtjudge inhis findings and conclusions determined that



# ... the Respondent has changed his employment from the hardware business inwhich he has previously been employed to field employment in the logging industry, which he finds 

### less financiallyremunerative, and for these reasons seeks 

### a reduction in the amount of maintenance and support for hisminor children.

"Wherefore, it 

### is concluded that the changes in circumstances relied upon by the Respondent hereinhave been unilaterallymade and he has voluntarily assumed the obligations of 

### a second family. "That the changed circumstances 

### are insufficient 

### towarrant 

### a change inthe amount of support necessary for the minor children, issue of the marriage, and the Petition 

### is denied." Child support must reflect 

### a balance among the needs of the parties involved and the ability of the parents to pay. Section 40-4-204, MCA. Normally, 

### a substantial change inthe financial condition of the parent 

### or child has been recognized 

### as grounds formodification of 

### a previously-entered child support order. Gianotti v. McCracken (1977), 174Mont. 209, 215, 569 P.2d 929, 932; Harding v. Harding (1978), 59 Ill.App.3d 25, 374 N.E.2d 1304; Annot., 89 ALR2d 7, 53. Appellant here alleges substantial changes, but he admits thathe voluntarilybrought about the conditions which worsened his financial situation. Many jurisdictions hold that if a parent voluntarily changes his/her financial circumstances, such changes 

### are not sufficient to deem the previous child support order unconscionable, and therefore should not even be considered. 

### Miller v. 

### Miller (1978), 65 Ill.App.3d 844, 382 N.E.2d 823, 826; Lambert v. Lambert (1965), 66Wash.2d 503, 403 P.2d 664, 668; Burnett v. Burnett (1974), KY 

## ,516 S.W.2d 330, 332;Annots. 89 ALR.2d 7, 519; 89 ALR.2d 106 S3. This 

### is an issue of first impression inMontana. A con

### sideration of differing authorities has convinced this Court that such an inflexible approach 

### is too harsh. Although 

### we hold that



### a reduction in ability 

### to pay brought about through 

### a voluntary change in circumstances 

### is not, in itself, sufficient 

### to mandate

a modification of support, neither do 

### we approve the view that self-imposed changes can never be considered 

### as reasons for modification. The better approach 

### is to allow the judge to considerthe nature of the changes and the reasons for the changes, and then 

### to determine whether, under 

### all the circumstances, a modification 

### is warranted. SeeNelson v. Nelson (1960), 225 Or. 257, 357 P.2d 536. The findings of the districtjudge in this 

### case indicate thathe considered the voluntary nature of Nelson's job change and remarriage, and, upon consideration of 

### all the circumstances, he determined thatNelson did not show that these changes substantially altered his ability 

### to pay. Evidence 

### was presented 

### attrial as to the respective incomes and needs of the parties and the judge made findingsreflecting the circumstances of all of the parties, including the children. SeeGianotti, supra, 174 Mont. 

### at 215, 569 P.2d 

### at 932; Kronovich v. Kronovich (1978), Mont

# . ,588 P.2d 510, 513-514, 35 St.Rep. 1946, 1951. Based on his findings, the district judge concluded that the change in circumstances shown by Nelson Rome 

### was not substan

### tial and continuing enough to render the prior support order unconscionable. 

### We presume that the findings of the district judge 

### are correct and 

### we willnot overturn them unless there 

### is 

### a preponderance of the evidence against them. Rule 52(a), M.R.Civ.P.; Cameron v. Cameron (1978), Mont

# . , 587 P.2d 939, 945, 35 St.Rep. 1723, 1729. 

### Here, 

### we find substantial evidence to support the court's findings and conclusions. Affirmed

# .

### Chief Justice

We concw: