NO. 88-606 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

IN RE THE MARRIAGE OF 

JUDITH ELAINE THANE, 

Petitioner and Respondent, 

and 

DENIS PATRICK THANE, - - - 7 " 

Respondent and Appellant. p- , C. 3 

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APPEAL FROM: District Court of the Fourth Judicial ~istrict, . --" -- ij 

In and for the County of Missoula, r- - The Honorable Jack L. Green, Judge presiding. 

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COUNSEL OF RECORD: 

For Appellant: 

James P. O'Brien, Missoula, Montana 

For Respondent : 

Christopher Daly, iss sou la, Montana 

Filed: 

Submitted on ~riefs: May 4, 1989 

Decided: August 7, 1989 U . ..> (9 

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'Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Denis Patrick Thane appeals from a judgment in the 

District Court, Fourth Judicial District, Missoula County, 

requiring him to pay to Judith Elaine Thane, his former wife, 

the sum of $150 .OO per month for each of two children, the 

progeny of their former marriage. We affirm. 

 eni is patrick Thane (patrick) contends on appeal that 

because he and Judith Elaine (Judith) obtained a joint 

marital dissolution of their marriage in 1981, under a decree 

which contained no provisions for child support, that the 

~istrict Court had no jurisdiction after more than two years 

to modify the decree with respect to child support. Patrick 

also contends that the District Court abused its discretion 

by concluding that the circumstances between the parties had 

changed so substantially that the terms of the 1981 decree 

had become unconscionable. 

Patrick and Judith were married on August 8, 1970. 

Their marriage was dissolved following a joint petition for 

dissolution in the same District Court by a decree issued on 

June 9, 1981. The decree of dissolution granted joint 

custody, care and control of the minor parties, Erin ~ennifer 

Thane and Jason ~hristopher Thane with equal rights and 

privileges in the parents respecting all decisions to be 

made. The dissolution decree further required Patrick to 

carry medical and dental insurance on the minor children of 

the parties. 

On June 13, 1986, Judith filed a petition for 

modification of child support in the District Court. On 

August 29, 1986, Judith also filed a motion for temporary 

support. On January 9, 1987, the District Court granted 
temporary child support to the respondent, which grant was 

upheld on a subsequent motion for reconsideration. On June 

17, 1988, a hearing was held on the original petition for 

modification dated June 13, 1986, after which the District 

Court issued findings of fact, conclusions of law and order 

dated July 25, 1988, which granted Judith child support in 

the monthly amount of $150.00 per child to be paid by Patrick 

to Judith. This appeal followed. 

On the issue of lack of jurisdiction in the District 

Court, Patrick contends that at the time of the original 

dissolution, no child support was sought by Judith and none 

was included in the original decree of dissolution. He 

contends that since no child support was awarded in the 

original decree, the decree cannot be modified to provide 

child support under the provisions of B 40-4-208(2) (a), MCA. 

He relies on Marriage of Cooper (Mont. 1985), 699 P.2d 1044, 

and Marriage of Hagemo (Mont. 1988), 749 P.2d 1079. 

It is provided in § 40-4-208 (2) (a), MCA, that: 

Whenever the decree proposed for modification does 

not contain provisions relating to maintenance or 

support, modification under subsection (1) may only 

be made within two years of the date of the decree. 

The District Court determined in its conclusions of law that 

because the decree of dissolution contained a specific 

provision relating to Patrick's obligation to provide 

support, i.e., medical and dental insurance, the District 

Court had jurisdiction to modify the decree. 

The District Court had the provision of health insurance 

and more to rely on in asserting jurisdiction for the purpose 

of modification. In the original decree, the District Court 

had decided that it was in the best interests of the minor 

children that the parents have joint custody, care and 

control, with equal rights and privileges, and with all 
decisions affecting the welfare of the children to be made by 

the mutual consent of the parties. Under this provision of 

the decree, since the dissolution, the children have been 

shared equally between the parents as far as custody and 

support is concerned. The result has been that the children 

have spent as much time in the home of the father, receiving 

there shelter and support, as they have in the home of the 

mother. There is no argument that this arrangement was what 

was contemplated by the parties at the time of the original 

decree of dissolution. There can be no doubt that the equal 

sharing of the sheltering and support of the children from 

and after the decree of dissolution was in effect an award of 

one-half of the cost of supporting the children to the 

husband. If, in fact, the District Court had intended that 

the husband pay no child support, then the court would have 

been under a duty to state the reasons for not ordering child 

support from a parent from whom a duty of support existed, 

under S 40-4-204(2), MCA. The original decree of dissolution 

is bare of any statements by the court as reasons for not 

requiring child support from the father. 

Thus, the two year statute after which decrees may not 

be modified in the circumstances described in 5 

40-4-208(2) (a), MCA, is not met here. Both in providing 

directly for health insurance for the children and in 

providing for their joint care and support, the District 

Court in effect required child support from the husband and 

so had jurisdiction to modify the child support provisions 

even after the lapse of two years. 

The second prong of Patrick's appeal is that the 

District Court had no basis upon which to find that the 

method of child support was unconscionable. Section 

40-4-208(2) (b), MCA, provides that when a decree proposed for 

modification contains provisions relating to maintenance and 
support, modification may be had only upon a showing of 

changed circumstances so substantial and continuing as to 

make the terms unconscionable, unless the parties consent 

otherwise. 

The findings of the District Court with relation to the 

care of the children are that the children have been well 

cared for in both homes and have warm relationships with both 

parents. Both parents have provided for all of the needs of 

the children including food, shelter, health, social and 

recreational and academic needs. 

The findings further show that after the dissolution, 

the wife became employed and that her income has increased 

from the time of the dissolution with relatively little 

earnings to $13,035.00. To obtain this income, she worked at 

community ~ospital 24 hours a week at $7.41 per hour and at 

State Farm Insurance Company for 31 hours a week at $5.25 per 

hour. Her mother contributes $150.00 monthly to Judith's 

support. 

The husband is certified as an elementary teacher in 

Missoula and earns more than $30,000.00 per year with a net 

take home pay of $1,817.00 per month. Since the dissolution, 

his annual income has increased from $23,838 in 1983 to 

$30,677 in 1987, the last year shown in the findings. His 

income increases each year. The husband does not work in the 

summer months when school is out. 

Judith intended to terminate her employment with State 

Farm Insurance Company on or about September 1, 1988, and to 

engage in cleaning houses at $7.00 per hour and selling 

encyclopedias. She felt these jobs would be flexible in the 

hours of work so that she would have more time for contact 

with her children, especially her daughter. The wife has no 

retirement plans or benefits other than available through her 

employment at Community Hospital. Husband is able to carry 
medical and dental insurance on the minor children of the 

parties through his employment. 

The District Court concluded that the child support 

provision as constituted under the 1981 decree of dissolution 

was unconscionable and should be modified because the parties 

are presently bearing the support of the children equally but 

the wife ha.s a lesser income than the husband. His income 

has been increasing regularly each year while her income 

varies and increases cannot be depended upon. Accordingly, 

the District Court decided that the husband should pay 

$300.00 per month in child support to equalize the 

disproportionate burden currently being borne by the wife. 

Essentially, Patrick argues against unconscionability on 

two grounds 1) that there is nothing in the evidence to show 

that there is a need by the children for his additional 

support, and 2) his monthly expenses as exhibited to the 

District Court show that he cannot afford the increased child 

support required by the District Court. 

It is true that in Marriage of West (Mont. 1984), 692 

P.2d 1213, this Court remanded the cause for an evidentiary 

hearing because the District Court had failed to make 

findings on the needs of the children and this Court wanted 

the District Court to determine whether those needs could be 

met at the current level of support payments. That is not 

the situation here. ~udith is bearing one-half of the cost 

of the support of the children although her annual income is 

less than one-half of that of her former husband. 

The needs and resources of the parents with respect to 

child support are also factors to be looked at by the 

District Court. Marriage of Callahan (Mont. 1988), 762 P.2d 

205. Here the ~istrict Court determined that patrick's net 

take home pay was $1,817.00 per month and noted his claimed 

current expenses of $1,850.00 per month. The ~istrict Court 
said this included a house payment at $696.00 per month and a 

payment for savings of $100.00 per month. 

The spirit of our law respecting child support is that 

the parties will be required to contribute to the support of 

the children in proportion to their ability to make such 

contributions. Each case is decided on a case-to-case basis. 

We established that requirement in Marriage of Carlson (Mont. 

1984) , 693 P.2d 496, and continued it in adopting Guidelines 

for Determining Child Support, effective January, 1987, 

[Published in 44 St.Rep. 828 (1987), and in the Desk Book 

published annually by the State Bar of Montana]. Because of 

the disparity in the parties' incomes, the court found it 

unconscionable that the wife should bear one-half of the cost 

of supporting the children and fashioned a contribution from 

the husband accordingly. 

The changes in the couple's financial circumstances 

since the dissolution were so substantial and continuing as 

to make the earlier support arrangement unconscionable. 

Marriage of Jensen (Mont. 1986), 727 P.2d 512. We uphold the 

~istrict Court on this issue. 

Under Rule 54 (a), M.R.Civ.P., findings by a district 

court are to be sustained by us, unless clearly erroneous. 

We do not find the District Court in error and therefore 

affirm. 

We Concur: 
Justices / /