No. 85-255 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

IN RE THE MARRIAGE OF 

CAROLE D . (CLARK) CONKI,IN, 

Petitioner and Appellant , 

and 

MARK A. CLARK, 

Respondent and Respondent. 

APPEAL FROM: The District Court of the Eighth J u d i c i a l D i s t r i c t , 

In and for the County of Cascade, 

The Honorable Thomas IlcKittrick, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hilley & Loring; Emilie Loring, Great Falls, Montana 

For Respondent: 

Swanberg, Koby, Swanherg & llatteucci; Daniel L. 

Falcon, Great Falls, Montana 

Submitted on Briefs: Jan. 30, 1986 

Decided: April 15, 1986 

Filed: 4ipR 1. 3 1986 

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Clerk 
Mr. Justice William E. Hunt, Sr., delivered the Opi-nion of 

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 

of making car payments. 

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 of visitation travel expenses of the children? 

3. Whether the District Court erred in releasing 

respondent from his obligation to pay the remaining car 

payments? 

The parties 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 salary was $60,000 

per year with potential bonuses of $15,000 to $40,000 per 

year. The agreement provided that Carole was to have 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 the 
Jeep which 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 

Jeep payments. 

We will first address the modification of child support. 

The District Court can modify 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 the Marri?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 District Court did rely on speculative 

conditions. Finding of fact number 9 states: 
Mr. Clark is now involved in a potential 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 if Mr. 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. 

(Emphasis added.) 

In its findings of fact number 11, the District Court states 

that Mr. Clark has purchased a condominium in Minneapolis and 

"that the complex was purchased without knowledge of a 

pending lawsuit in regard to the construction of 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-ark will retrieve any of the down payment that his 

[second.] wife made on the compl.ex." (Emphasis added.) 

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 " [tlhe reduction in 

income plus the presence of anticipated debt results in 

making the original terms of the Decree unconscionable." 

The District Court abused its discretion by 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 Plark would not retrieve any of the down 

payment made on the condominium. 

Further, there is no substantial credible evidence on 

the record to justify the District Court's conclusion that 
Mark's change in cond.ition is 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.nge in 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 

unemployment was permanent or that earning capacity 

had been substantially reduced. 

In the instant case, the record ind.icates that 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.ence to indj-cate that his 

salary would. not go up again in the future, that he 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 of modification of child support. 

We also must reverse on the issue of payment of travel 

expenses. The District Court based 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-ity of paying the remainder 

of the Jeep payments. Mark argues that because the Jeep was 

used "95% for the children," it is an aspect of child support 

and subject to modification by the District Court. 

Mark relies on Phennicie v. Phennicie (1979) , 185 Mont. 

1.20, 604 P.2d 787 to support his 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 District Court 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 

and maintenance 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, is not 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-ng the home, in this 

case, were part of the child support provisions and 

as such may be modified by further order. 

Phennicie, 185 Mont. 

Mark's reliance on Phennicie is misplaced. In this 

case, the Jeep was clearly denominated personal property in 

the agreement. The Jeep payments were in no way tied to the 

support provisions, the vehicle was a marital asset purchased 

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 disposition may 

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.eving Mark of the 

remainder of the Jeep payments. 

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 the District Court must be reve 

We Concur: 

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