No. 85-255 INTHE SUPREME COURT OF THE STATE OF MONTANA 1986

INRE THE MARRIAGE OF CAROLE D

# . (CLARK) CONKI,IN, Petitionerand Appellant

## , and MARK A. CLARK,Respondent and Respondent.

APPEAL FROM: TheDistrictCourtof the EighthJ u d i c i a l D i s t r i c t , Inand forthe Countyof Cascade, The Honorable Thomas IlcKittrick, Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: Hilley & Loring; EmilieLoring, GreatFalls, Montana

ForRespondent: Swanberg, Koby, Swanherg & llatteucci; DanielL. Falcon, GreatFalls, Montana

Submittedon Briefs: Jan. 30, 1986 Decided: April 15, 1986

Filed: 

## 4ipR 1. 3

### 1986

8



### - ClerkMr. Justice William E. Hunt, Sr., delivered the Opi-nionof the Court.

Carole D. (Clark)Conklin appeals from an order of the Cascade County District Court modifying child support, ordering the parties to share the children's visitation travel expenses, and relieving respondent of the obligation ofmaking carpayments. We reverse. The issues raised by appellant Carole are: 1. Whether the District Court erred in modifying child support? 2. Whether the District Court erred i.n amending the payment ofvisitation travel expensesof the children? 3. Whether the District Court erred in releasing respondent from his obligation to pay the remaining car payments? Theparties were married on December 23, 1967. Two sons

were adopted when they were infants. The parties separated in June, 1982, and Carole filed for dissolution of the mzrriage. The parties entered into a child custody and property settlement agreement on July 8, 1.982. The decree of dissolution was entered on August 5, 1982, and incorporated the agreement. At the time of the dissolution, respondent Mark was employed as general counsel for IFG Leasing in Great Falls; Carole was a full time homemaker. PCark's salarywas $60,000 per year with potential bonuses of $15,000 to $40,000 per year. The agreementprovided that Carolewas tohave custody of the children,Mark was to pay child support of $500.00 per month per child, and payments of $353.00 per month on theJeepwhich was awarded to Carole. Following the dissolution, Carole moved to Butte, and Mark was transferred to Minneapolis,Minnesota. On September 30, 1983,Mark petitioned for modification. On March 20, 1985, the District Court reduced Mark's child support obligation to $250.00 per month per child, ordered the parties to share the children's visitation travel expenses equally, and relieved Mark of the remainder of the Jeeppayments. We will first address themodification of child support. The DistrictCourt canmodify a child support obligation only upon a showing of changed circumstances so substantial and continuing as to make the terms of the original decree unconscionable. Section 40-4-208(2)(b)

# . This Court will

reverse the District Court onl-y if the District Court's findings are clearly erroneous in light of the evidence in the record. In re theMarri?ge of Carlson and Carlson (Mont. 1984), 693 P.2d 496, 41 St.Rep. 2419. The appellant must show that there was a clear abuse of discretion or an error in the District Court's findings. Reynolds v. Reynolds

(Mont. 1983), 660 P.2d 90, 40 St.Rep. 321. In this case,we find such an abuse of discretion. We have held that "the conditions and circumstances of the parties must be examined and determined at the time of the modification hearing, and may not be based upon mere speculative future conditions or possible conditions." Gall

v. Gall (1980), 187 Mont. 17, 20, 608 P.2d 496, 498. A careful reading of the findings of fact and conclusions of law indicates that the DistrictCourt did rely on speculative conditions. Finding of fact number 9 states:Mr. Clark is now involved in apotential lawsuit in regard to the sale of the Great Falls home. Mr. Clark has presented evidence indicating that the second mortgagee on the property intends to file suit in the immediate future ifMr. Clark does not make satisfactory arrangements to cover the second mortgage on the property. Mr. Clark did not anticipate this debt at the time of the Decree of Dissolution. The amount on the debt is $18,346.07.

(Emphasisadded.) In its findingsof fact number 11,the District Court states thatMr. Clark has purchased a condominium inMinneapolis and "that the complex was purchased without knowledge of a pending lawsuit in regard to the constructionof the complex. 1. Clark is now engaged in a lawsuit to recover his investment. 

### --- It is not anticipated that in the near future

r.Cl-arkwill retrieve any of the down payment that his

[second.]wifemade on the compl.ex." (Emphasisadded.) The court relies on speculative conditions in its conclusions of Law as well. Conclusion of law number 6 states that "Mr. Clark has been served notice of a potential suit for the sale of the family home in Great Falls,Montana,

on a debt in the amount of $18,346.07. This debt was not anticipated at the time of the dissol.ution of the marriage." Conclusion of law number 10 states that 

### "[tlhereduction in income plus the presence of anticipated debt results in making the original terms of the Decree unconscionable." The DistrictCourt abused its discretionby not limiting its consideration to circumstances in existence at the time of the hearing. At the time of the hearing Mark.was not involved in a lawsuit over the Great Falls home, and it was mere speculation that Plarkwould not retrieve any of the down paymentmade on the condominium. Further, there is no substantial credible evidence on the record to justify the District Court's conclusion thatMark's change in cond.itionis permanent. We have addressed this question before. In Carlson, 693 P.2d at 499, we stated: The record substantiates that the father is currently unemployed but there is no evidence supporting a conclusion that this substantial cha.ngein the father's circumstances is continuing. In Hughes v. Hughes (Mont. 1983), 666 P.2d 739, 741, 40 St.Rep. 1102, 1105, the District Court findings were held to be clearly erroneous because no evidence was presented to prove that the husband's change in circumstances was continuous. The District Court correctly identified the question involved: "Can he go to work?" The father's evidence failed to show that his unemploymentwaspermanent or that earning capacity had been substantially reduced. In the instant case, the record ind.icatesthat Mark's salary went from $75,000 the year of the dissolution to $60,000 the year of the hearing. His employer could no longer guarantee a salary greater than $45,000 after July 1, 1985. However, there was no evid.enceto indj-catethat his salarywould.not go up again in the future, thathe would not

earn bonuses in the future, or more importantly, that his earning capacity had been substantially reduced. To uphold the District Court's order, the record must show a change of circumstances so substantial and continuing as to make the original decree unconscionable. The record does not support the District Court's conclusion that the change is continuing. Therefore, we must reverse the District Court on the issue ofmodification of child support. We also must reverse on the issue of payment of travel expenses. TheDistrict Courtbased its order on the findings of fact and conclusions of law which we have a1read.y determined are erroneous.Finally, we address the order of the District Court relieving Mark of the responsibil-ityof paying the remainder of the Jeep payments. Mark argues thatbecause the Jeepwas used "95%for the children," it is an aspect of child support and subject tomodificationby the DistrictCourt. Mark relies on Phennicie v. Phennicie (1979)

## , 185Mont. 1.20,604P.2d 787 to supporthis argument. In that case,the custody and settlement agreement provided that the family home was to be sold within 6 months after the second child graduated from high school-. The DistrictCourt modified the agreement and ordered that the home not be sold until the youngest child graduated from high school. We affirmed the District Court stating: We note that a large portion of the child support section of the agreement deals with the paying for andmaintenance of the family home. Why the home was to be sold after the second child graduated from high school, rather than after the youngest graduated, isnot clear. What is clear is that the home was an integral part of the child support provisions so long as the second child was still a high school student

# . . .Consequently,we find that the terms concerni-ngthe home, in this case,werepart of the child support provisions and as suchmay be modified by furtherorder. Phennicie, 185Mont. Mark's reliance on Phennicie is misplaced. In this case, the Jeep was clearly denominated personal property in the agreement. The Jeeppayments were in no way tied to the support provisions, thevehiclewas amarital assetpurchased during the marriage and awarded to Carole in the agreement. It is incorrect to argue that because the Jeep is used primarily for the children it is somehow tra.nsformed from personal property to child support. The Jeep payments are part of the property settlement agreement, and as such are governed different rules than modification support.Section 40-4-208(3) states: (3) The provisions as to property dispositionmay not be revoked or modified by a court, except: (2) upon written consent of the parties; or (b) if the court finds the existence of conditions that justify the reopening of a judgment under the laws of this state. The conditions justifying reopening of a judgment are found at Rule 60(b)

## , E4.R.Civ.P. The grounds are mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, intrinsic and extrinsic fraud, misrepresentation, misconduct, and any other reason justifying relief from the operation of the judgment. The District Court made no findings or conclusions regarding any of these grounds in its order. Therefore,we reverse the order of the District Court reli.evingMark of the remainderof the Jeeppayments. The District Court abused its discretion by relying on speculative future conditions and possible conditions. Further, the record does not support the conclusion that Mark's change in circumstances is substantial and permanent. Finally, the District Court erroneously modified the property settlement agreement without any showing of the necessary grounds for such modification. For these reasons, the order of theDistrictCourt must be reve

We Concur: /''I Justices i 0

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