No. 94-226

IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

IN RE THE MARRIAGE OF

TERI LYNN CLYATT,

Petitioner and Respondent,

and

EUGENE GIBSON CLYATT,

Respondent and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula,

The Honorable John S. Henson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Christopher Daly, Missoula, Montana

For Respondent:

Douglas G. Skjelset, Skjelset Law Offices,

Missoula, Montana

Filed:

Submitted on Briefs: August 11, 1994

Decided: October 13, 1994
Chief Justice J. A. Turnage delivered the Opinion of the Court.

Eugene Clyatt, Jr., appeals from the denial of his motion to

modify his child support obligations by the Fourth Judicial

District Court, Missoula County. We affirm.

The issue is whether the District Court abused its discretion

in denying Eugene's motion to modify his child support obligations.

Teri Clyatt and Eugene Clyatt, Jr., were married in July,

1987. One child was born of this marriage, Amanda Jean Clyatt.

Teri and Eugene were divorced in January, 1992. The District Court

granted joint custody and appointed Teri primary residential

parent. The court ordered Eugene to pay Teri $300 per month for

child support. Eugene made the required payments fror, the time of

the divorce decree until July, 1993. He failed to make support

payments for the months of July, August, September, and October of

1993. Eugene also failed to pay for one-half of his daughter's

medical expenses for which he was responsible.

Teri moved the District Court to order Eugene to show cause

why he should not be held in contempt of court for his failure to

pay child support. Following a hearing, the court found Eugene in

contempt of court for failing to pay his child support obligations.

Eugene then moved the District Court to reconsider its contempt of

court ruling and to modify his child support obligation. The court

denied both motions. Eugene appeals only the court's denial of his

motion to modify the child support obligation.

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The District Court based its decision on the following facts.

Prior to and immediately following the divorce, Eugene worked for

his father at Clyatt Construction Company. While employed at

Clyatt Construction, Eugene had sufficient income to pay the $300

per month child support obligation. He voluntarily quit his job

with Clyatt Construction due to personal problems between him and

his father. Eugene did not seek alternative construction employment, despite having experience and expertise in that field.

Rather, he enrolled in college at the University of Montana.

Eugene worked part-time at McDonald-Armstrong Investment, Limited,

earning a net income of approximately $460 per month. He lived

with his parents and paid no rent. Bis parents paid for his

college tuition.

* * *

Did the District Court abuse its discretion when it denied

Eugene's motion to modify his child support obligation?

Eugene argues that the District Court should have modified his

child support obligation. Before a child support obligation can be

modified, a party must establish that there are changed circumstances so substantial and continuing as to make the terms of the

existing agreement unconscionable. Section 40-4-208(2)(b), MCA.

The District Court found that no substantial and continuing change

in circumstances existed. As such, the court did not address

whether the alleged changed circumstance rendered the terms of the

agreement unconscionable.

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We will not disturb the District Court's ruling absent a clear

abuse of discretion. In Re the Marriage of Durbin (1991), 251

Mont. 51, 55, 823 P.2d 243, 245. This Court gives great deference

to the trial court's judgment, presuming its decision to be

correct. In Re the Marriage of Carlson (1984), 214 Mont. 209, 214,

693 P.2d 496, 499.

The District Court found that Eugene did not show a substantial and continuing change in circumstances. There is sufficient

evidence in the record to uphold this finding. Eugene voluntarily

quit his employment with Clyatt Construction and did not actively

seek other employment in the construction field. Eugene admits he

is a skiiied carpenter, yet he chose to return to schooi rather

than remain employed in the construction business. Eugene's

current employment condition was clearly of his own making.

When an individual voluntarily decreases his or her ability to

pay child support, it is up the district court to determine whether

there has been a substantial and continuing change in circumstances. In In Re the Marriage of Rome (1981), 190 Mont. 495, 497, 621

P.2d 1090, 1092, the father voluntarily left his employment in the

hardware business and began a less lucrative career in the logging

industry. In upholding the district court's denial of the father's

motion to modify his child support payments, this Court stated:

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 selfimposed changes can never be considered as reasons for

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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.

-IRome 621 P.2d at 1092.

There is substantial evidence in this case that Eugene

voluntarily terminated his employment with Clyatt Construction and

did not attempt to procure substitute employment in the field in

which he was skilled. It therefore was within the discretion of

the District Court to determine that no substantial and continuing

change in circumstances existed.

District courts should consider several factors when determining whether a parent can meet his or her current child support

obligations or if such support obligations should be modified,

including:

(1) The parent's ability to earn an income:

(2) The parent's willinqness to earn an income and

support his child:

(3) The availability of jobs:

(4) The parent's use of his funds to provide himself

only with the bare necessities of life prior to

providing support for his child.

In Re the Marriage of Callahan (1988), 233 Mont. 465, 469, 762 P.2d

205, 208 (emphasis added). The record indicates that Eugene was

able to earn an income sufficient to pay his child support

obligation while working at Clyatt Construction. The record

likewise reflects his unwillingness to support his child by

voluntarily quitting his construction job and returning to school.

Taking these factors into consideration, the District Court did not

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abuse its discretion in finding that Eugene's choice to quit his

job and subsequently return to school did not constitute a

substantial and continuing change in circumstances.

Eugene argues that the District Court erred in not making a

finding concerning unconscionability. We find no merit in this

argument. This Court recently indicated that a change in circumstances and unconscionability are two distinct factors which must

be independently established. In In Re the Marriage of Barnard

(Mont. 1994), 870 P.2d 91, 51 St.Rep. 173, we stated:

It is obvious that Timothy's financial success constitutes a change in circumstance. However, this fact, by

itself, does not render the prior child support award

unconscionable.

Barnard, 870 P.2d at 93-94. Changed circumstances and unconscionability are clearly two separate factors that the court can address

independently of each other.

Section 40-4-208(2)(b), MCA, likewise suggests that a finding

of changed circumstances is a prerequisite to any inquiry into the

unconscionability of the agreement:

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 . . . .

Absent a finding of changed circumstances, the court's analysis

need go no further. Only after finding that the circumstances

surrounding the child support obligation have substantially and

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continually changed must the court make a determination concerning

unconscionability.

The District Court denied Eugene's motion for modification of

his child support obligation because it found no substantial and

continuing change in circumstances. The District Court stated:

The Court finds that [Eugene] has shown little initiative

to provide support for his child, despite his contentions

to the contrary. While his stated goal of furthering his

education is commendable, it does not override his

obligation to provide his child with support, nor

constitute chansed circumstance.

(Emphasis added.)

We conclude that the court did not abuse its discretion in

finding that no substantial or continuing change in circumstances

existed. We therefore affirm the decision of the District Court.

We need not address Eugene's argument regarding 5 40-4-204,

MCA. Section 40-4-204(3)(a), MCA, states:

Whenever a court issues or modifies an order concerning

child support, the court shall determine the child

support obligation by applying the standards in this

section and the uniform child support guidelines . . . .

Since we conclude that the District Court properly denied modification of the child support obligation, the child support guidelines

do not come into effect. We affirm the decision of the District

Court.
We concur:

Justices
Justice Terry N. Trieweiler dissenting.

I dissent from the majority opinion. I would reverse the

judgment of the District Court.

Although the record in this case is less than satisfactory, it

must be pointed out that due to his economic circumstances, Eugene

proceeded pro se at all times prior to the District Court's order

which held him in contempt for failure to pay child support. There

is no indication that he was represented when Teri filed her

petition for dissolution, or when he signed the property settlement

agreement which formed the basis for the District Court's

January 7, 1992, decree. Finally, he was unrepresented at the only

hearing held in this matter on October 12, 1993.

However, even the uninformed testimony given at that hearing

established a change in circumstances since the date of the

parties' dissolution decree which was so substantial that his

original child support obligation was unconscionable. The District

Court's failure to modify the support obligation was unsupported by

substantial evidence, and therefore, an abuse of discretion.

The uncontroverted evidence established that at the time he

consented to the dissolution decree, Eugene worked as a carpenter

for his father's construction business. However, due to

differences with his father, they mutually agreed to the

termination of his employment shortly after the decree was entered.

Eugene testified, without contradiction, that from January 1992

until the date of his hearing, his gross income was $7973.60, while

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his child support obligation alone was $5380. He had no

automobile, no savings, and no other assets.

Eugene had never worked as a carpenter for anyone other than

his father. After terminating his employment with his father, he

realized that there were numerous carpenters in Missoula, but few

construction jobs. Therefore, he decided that it would be in his,

as well as his child's, best interest that he reeducate himself, SO

he returned to school as a full-time student.

At the time of the only hearing that was held in this case,

Eugene was working at McDonalds 24 hours a week, earning $5.25 per

hour. His net income was $460 per month.

At the time of his hearing, Eugene proposed that his support

obligation be temporarily modified, based on his reduced income, to

conform to the Child Support Guidelines, and that the court

establish a schedule on which he could repay his past-due support

obligation. He was unable to do more.

Instead, on November 8, 1993, the District Court entered its

order finding him in contempt of court for failure to pay child

support and ordered that: he purge himself from contempt by

executing a wage assignment in the amount of $300 per month: pay

his wife's attorney fees in the amount of $242.50; pay costs in the

amount of $15.50; and pay medical bills in the amount of $327.50

within 15 days.

Section 40-4-208(2)(b), MCA, provides in relevant part as

follows:

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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 . . . .

A district court's decision to modify or deny modification of

a child support obligation is reviewed for an abuse of discretion.

In this case, I conclude there clearly was an abuse of discretion

when, under the above circumstances, the District Court found that

Eugene was capable of making child support payments in the amount

of $300 per month: and that he quit his carpentry job only because

he did not enjoy it.

The District Court made no specific findings regarding a

change in circumstances or the conscionability of Eugene's child

support obligation--the factors to be considered under 3 40-4-208,

MCA. However, in the court's later opinion and order denying

Eugene's motions for reconsideration and modification, the District

Court stated:

The Court finds that the respondent has shown little

initiative to provide support for his child, despite his

contentions to the contrary. While his stated goal of

furthering his education is commendable, it does not

override his obligation to provide his child with

support, nor constitute changed circumstance. Other

fathers in similar circumstances have been diligent

enough to pursue an education and provide for their

children. Such is not beyond the ability of the

respondent.

To the extent that these remarks by the District Court

constitute its findings, they were also clearly erroneous and

unsupported by any evidence in the record.

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The evidence was that Eugene had borrowed substantial amounts

of money since going back to school in an effort to make child

support payments, but was apparently unable to continue doing so.

With no assets, that should not be surprising. Furthermore,

assuming that what other fathers had done under similar

circumstances may have been relevant, there was simply no evidence

of what any other father had done.

The majority concludes that when a person voluntarily

terminates his employment, and thereby sustains a reduction in

income, it is completely up to the district court's discretion to

determine whether a modification is warranted. However, that

discretion is not unlimited. Where, as in this case, there were

sound reasons for Eugene's termination of his employment, and sound

economic reasons for his reeducation, this Court has not served

anyone's best interest by punishing him for seeking the reeducation

he needs. Where a parent makes reasonable progress toward

reeducation with the objective of improving his earning capacity,

it is in both his best interest, and the long-term best interest of

his child, that he be encouraged, not discouraged, from doing so.

The District Court has imposed a harsh obligation which Eugene

is unable to meet. The alternative is that he go to jail.

However, there will be little benefit to his child from his

incarceration. Any pride taken by the District Court and this

Court in their assumption that they have enforced another

recalcitrant father's child support obligation is unfounded. This

decision will, in the long term, punish the very child it seeks to

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benefit. The District Court's decision, and this Court's opinion

affirming that decision, are shortsighted and serve no one's best

interest.

For these reasons, I would reverse the judgment of the

District Court.

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