No. 80-209 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

IN RE THE MARRIAGE OF 

NANCY JANE ROME, 

Petitioner and Respondent, 

vs . 

NELSON ALLEN ROME, 

Respondent and Appellant. 

Appeal from: District Court of the Third Judicial District, 

In and for the County of Powell. 

Honorable Robert Boyd, Judge presiding. 

Counsel of Record: 

For Appellant: 

William R. Taylor, Deer Lodge, Montana 

For Respondent: 

Ted L. Mizner, County Attorney, Deer Lodge, Montana 

James J. Masar, Deer Lodge, Montana 

Submitted on briefs: August 23, 1980 

Decided: JAB 1 & @@ 

Filed : - 1 2 j/fJ@i 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the 

Court. 

Respondent Nelson Allen Rome appeals from a judgment 

entered in Powell County arising out of a URESA action, ordering 

him to pay 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 in Powell County in 1978. 

The care and custody of the two children born of the marriage was 

given to Nancy Rome. The parties entered into a written property 

settlement agreement, which provided, among other things, that 

Nelson Rome was to pay $150 per month per child in child support. 

In December 1979, Nancy Rome petitioned the ~istrict 

Court, Gallatin County, for enforcement of the support provisions 

of the dissolution decree. The action was transferred to Powell 

County and was consolidated with an action initiated by Nelson 

Rome to modify support payments to $100 per month per child, 

because of changed circumstances. The district judge denied the 

petition for modification, finding that Nelson Rome voluntarily 

entered into circumstances reducing his ability to pay, and that 

the change in circumstances was insufficient to warrant the 

reduction. He also ordered Nelson Rome to pay arrearages of 

$1100. 

Nelson appeals, bringing one issue before this Court: 

Did the District Court err in refusing to reduce child 

support payments where appellant alleged changes in his financial 

condition, brought about by a voluntary change in employment and 

by his remarriage? 

Section 40-4-208, MCA, sets out the circumstances in which a modification of a support order may be entered: 

"Modification and termination of provisions for 

maintenance, support, and property disposition. 

(1) Except as otherwis~rovided in 40-4-201( 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 for modification contains provisions relating to maintenance 

or support, modification under subsection (1 ) 

may only be made: 

"(i) upon a showing of changed circumstances so 

substantial and continuing as to make the terms 

unconscionable . . ." 

The district judge in his findings and conclusions determined that 

. . . the Respondent has changed his 

employment from the hardware business in which 

he has previously been employed to field 

employment in the logging industry, which he 

finds less financially remunerative, and for 

these reasons seeks a reduction in the amount of 

maintenance and support for his minor children. 

"Wherefore, it is concluded that the changes in 

circumstances relied upon by the Respondent 

herein have been unilaterally made and he has 

voluntarily assumed the obligations of a second 

family. 

"That the changed circumstances are insufficient 

to warrant a change in the 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 in the 

financial condition of the parent or child has been recognized as 

grounds for modification of a previously-entered child support 

order. Gianotti v. McCracken (1977), 174 Mont. 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 

that he voluntarily brought 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), 66 Wash.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 in Montana. A cons ideration 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 consider the nature of the changes and the reasons for the changes, 

and then to determine whether, under all the circumstances, a 

modification is warranted. See Nelson v. Nelson (1960), 225 Or. 

257, 357 P.2d 536. 

The findings of the district judge in this case indicate 

that he considered the voluntary nature of Nelson's job change 

and remarriage, and, upon consideration of all the circumstances, 

he determined that Nelson did not show that these changes 

substantially altered his ability to pay. Evidence was presented 

at trial as to the respective incomes and needs of the parties 

and the judge made findings reflecting the circumstances of all 

of the parties, including the children. See Gianotti, 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 substantial and continuing enough to render the prior support order 

unconscionable. We presume that the findings of the district 

judge are correct and we will not 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. 

Af f irmed . 
Chief Justice 

We concw: