NO. 89-246 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

IN RE THE MARRIAGE OF: 

SHARLENE H. GUCKEEN, 

Petitioner and Respondent, 

and 

TERRY H. GUCKEEN, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District 

In and for the County of Cascade 

The Honorable Thomas M. McKittrick, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Howard F. Strause, Great Falls, Montana 

For Respondent: 

James D. Elshoff, Great Falls, Montana 

Submitted on Briefs: October 25, 1989 

Decided: December 1, 1989 H-T 

Filed: 

FILE 

DEC 1.. 4989 
Justice John Conway Harrison delivered the Opinion of the 

Court. 

Terry Guckeen appeals a judgment of the District Court 

of the Eighth Judicial District, Cascade County, Montana. 

The District Court ordered appellant to pay respondent 

Sharlene Guckeen $17,700 in back child support representing 

118 months at $150/month. We reverse the judgment and remand 

to the District Court for a rehearing. 

Appellant presents a single issue for review. 

Did the District Court err in declining to exercise its 

equitable powers when the parties have orally and in writinq 

altered the terms of a sixteen-year-old divorce decree? 

Terry and Sharlene Guckeen were divorced on March 6, 

1972. The divorce decree awarded custody of the couple's 

three minor children to Sharlene and ordered Terry to pay 

$150 per month in child support. (One of these children died 

in 1974.) Almost immediately after the divorce, Terry and 

Sharlene began living together and continued to live together 

until January of 1978. The parties stipulated that no 

support payments are due prior to July, 1978. 

After the divorce, Terry and Sharlene had two more 

children: Brian, born December 18, 1974 and Brandon, born 

February 18, 1979. Except for a short period of time, Brian 

has always lived with his father and Brandon has always lived 

with his mother. No custody or support order has ever been 

sought with regard to these two children and neither Terry 

nor Sharlene has paid to or requested support from the other 

with regard to these two children. 

On January 26, 1978, Terry and Sharlene entered into a 

written agreement that gave custody of the children mentioned 

in the divorce decree to Terry. The agreement also provided 

that Terry would never collect any child support payme~ts 

from Sharlene. 
In spite of the written agreement giving custody of the 

children to Terry, the parties made an oral agreement that 

the children could live with whichever parent they wished. 

Pursuant to that oral agreement, the children mentioned in 

the divorce decree have spent roughly equal time with each 

parent. Terry has made no support payments to Sharlene and 

Sharlene has not requested any support payments. Terry did 

make child support payments to the State of California 

through Cascade County when California sought recovery for 

Aid to Families of Dependent Children payments. The youngest 

child mentioned in the divorce decree reached majority on 

October 21, 1987. 

On June 26, 1985, Sharlene filed a motion requesting a 

judgment against Terry for past due child support. A hearing 

was finally held on June 6, 1988. Rased on the change in 

custody arrangements after the divorce decree, Terry sought 

to invoke the District Court's equitable powers to estop 

Sharlene's claim for back child support. In its February 16, 

1989 Conclusions of Law, the District Court found that Terry 

had not done equity because he had not paid any support for 

his four children in the past sixteen years. Therefore the 

District Court held that Terry had attempted to invoke the 

District Court's equity power with unclea-n hands and the 

District Court declined to exercise its equitable powers. 

Appellant argues that the District Court should have 

granted him equitable relief because of this Court's 

decisions in the following five cases: State ex rel. 

Blakeslee v. Horton (1986), 222 Mont. 351, 722 P.2d 1148; In 

re the Marriage of Cook (1986), 223 Mont. 293, 725 P.2d 562; 

In re the Marriage of Jensen (1986), 223 Mont. 434, 727 P.2d 

512; In re the Marriage of Sabo (1986), 224 Mont. 252, 730 

P.2d 1112; and In re the Marriage of Ryan (Mont. 1989), 778 

P.2d 1389, 46 St.Rep. 1543. We agree. 
The above-mentioned cases illustrate the equitable 

exception to the general rule that child support payments 

cannot be modified retroactively. Marriage of Ryan, 778 P.2d 

at 1390. The equitable exception arises when the parties by 

consent and conduct alter the terms of the original decree. 

Marriage of Sabo, 730 P.2d at 1114. In the instant case, the 

parties by consent and conduct altered the terms of the 

original decree. Terry had residential custody of and 

totally supported the children mentioned in the divorce 

decree approximately half of the time until they reached 

majority. 

Where the parties have altered the original custody 

arrangements, equity functions to reconcile reasonable child 

support with actual residential custody. The above-mentioned 

cases clearly articulate the guidelines to be used in this 

reconciliation. 

We reverse the judgment and remand to the District 

Court for rehearinq consistent with this opinion. 

We concur: 

&& 

Justices 
No. 89-246 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

IN RE THE MARRIAGE OF: 

TERRY H. GUCKEEN, 

Plaintiff and Appellant, 

and 

SHARLENE GUCKEEN, 

Respondent and Respondent. 

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C W 

APPEAL FROM: District Court of the Eighth Judicial Distret 

In and for the County of Cascade 

The Honorable Thomas M. McKittrick, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Howard F. Strause, Great Falls, Montana 

For Respondent: 

James D. Elshoff, Great Falls, Montana 

Submitted on Briefs: October 25, 1989 

Decided: December 1, 1989 

Filed: