DA 07-0646

IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 316N

IN RE THE MARRIAGE OF

DARCY JEAN BRONEC,

 Petitioner and Appellee,

 and

JAMES WILLIAM BRONEC,

 Respondent and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,

In and For the County of Cascade, Cause No. ADR 2005-431

Honorable Thomas M. McKittrick, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Shari M. Gianarelli, Gianarelli Law Office, PLLC, Conrad, Montana

For Appellee:

Darcy J. Bronec (Self-Represented), Great Falls, Montana

Submitted on Briefs: August 13, 2008

 Decided: September 9, 2008 

Filed:

__________________________________________

Clerk

September 9 2008
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Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal 

Operating Rules, as amended in 2003, the following memorandum decision shall not be 

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme 

Court and its case title, Supreme Court cause number and disposition shall be included in 

this Court’s quarterly list of noncitable cases published in the Pacific Reporter and 

Montana Reports. 

¶2 James William Bronec (Bronec) appeals the Eighth Judicial District Court’s denial 

of his motion to modify child support. We affirm.

ISSUE

¶3 Did the District Court abuse its discretion when it determined that there had not 

been a change in circumstances so substantial and continuing as to warrant modification 

of the prior child support order?

FACTUAL AND PROCEDURAL BACKGROUND

¶4 Bronec and his former wife Darcy (Darcy) were married in 1996. The couple had 

two children before they divorced in 2006. In October 2006, the parents entered into a 

Stipulated Final Parenting Plan under which the children are in the primary custody of 

their mother but have regular and liberal visitation with their father. Also under the 

Parenting Plan, Bronec pays $300 a month in child support.

¶5 In May 2007, eight months after the Parenting Plan had been executed, Bronec 

filed a Motion for Modification of Child Support and Brief. In his Motion he argued that 

his circumstances had substantially changed resulting in his original child support 
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obligation being rendered “unconscionable.” He asserted that his daughter from a 

previous relationship, Ashley, had come to live with him in April 2007, thereby 

increasing his living expenses. He stated that his overtime income had decreased as a 

result of his daughter’s changed residency and it was impossible for him to meet his 

monthly obligations if he had to continue paying $300 a month in child support. He also 

claimed that his children with Darcy were residing with him “nearly half-time” which 

was not contemplated at the time child support was established. He sought to have the 

monthly child support reduced from $300 to $90.

¶6 The District Court held a hearing on Bronec’s Motion on June 26, 2007. The 

court heard testimony from both Bronec and Darcy pertaining to their respective jobs, 

finances, and living arrangements. In October 2007, the District Court issued its Findings 

of Fact, Conclusions of Law and Order on Bronec’s Motion. The court held that Bronec 

had failed to demonstrate that his circumstances had changed to such a substantial degree 

that continuing to pay $300 a month for child support for two children was 

unconscionable. The court denied Bronec’s Motion. Bronec appealed.

STANDARD OF REVIEW

¶7 In child support modification cases, this Court reviews a district court’s findings 

of fact to determine if they are clearly erroneous. In re Marriage of Martinich-Buhl, 

2002 MT 224, ¶ 12, 311 Mont. 375, ¶ 12, 56 P.3d 317, ¶ 12. We review a district court’s 

conclusions of law to determine whether they are correct. Marriage of Martinich-Buhl, 

¶ 12. Where a court modifies child support pursuant to § 40-4-208(2)(b)(i), MCA, its 

determinations regarding substantial and continuing changed circumstances and 
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unconscionability are discretionary. Thus, we review those determinations for abuse of 

discretion. In re Marriage of Jarussi, 1998 MT 272, ¶ 7, 291 Mont. 371, ¶ 7, 968 P.2d 

720, ¶ 7. See also Midence v. Hampton, 2006 MT 294, ¶ 11, 334 Mont. 388, ¶ 11, 147

P.3d 227, ¶ 11.

DISCUSSION

¶8 Section 40-4-208(2)(b)(i), MCA, upon which Bronec relies, allows an existing 

child support order to be modified “upon a showing of changed circumstances so 

substantial and continuing as to make the terms unconscionable.” In addressing a motion 

under this statute, the court must first determine if a movant’s circumstances have 

substantially changed; only then, and if the circumstances have so changed, does the 

court determine whether the existing order is unconscionable. Jarussi, ¶ 7.

¶9 Bronec asserts that the District Court’s findings are clearly erroneous and must be 

reversed. However, with the exception of the court’s finding that Bronec’s daughter,

Ashley, has established a pattern of moving back and forth between her parents and that 

her current living arrangement with her father is not likely to be permanent, the 

“findings” Bronec challenges are actually legal conclusions. Applying our standard of 

review for factual findings, the finding pertaining to Bronec’s older daughter is supported 

by the record and therefore is not clearly erroneous.

¶10 Turning to the District Court’s conclusions of law, the court determined that 

Ashley’s current living arrangement with her father, Bronec’s alleged forced reduction in 

overtime because of Ashley’s presence, and the number of days the two younger children 

spent with him from the time the Parenting Plan was signed and the hearing, did not 
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constitute a change in circumstances so significant as to render Bronec’s $300 per month 

child support obligation unconscionable.

¶11 The court noted that Bronec stopped paying the $201 per month in child support 

for Ashley while she was living with him but did not seek child support from Ashley’s 

mother. Rather, he sought to reduce his child support obligation for his two children by 

Darcy to accommodate his alleged increased expense resulting from Ashley moving in 

with him. The court addressed Bronec’s testimony that he could not work overtime now 

that Ashley lived with him, by noting that Bronec nonetheless could leave Ashley alone 

for two to four evenings a week to attend karate classes with his son. The court thus 

concluded that Bronec’s testimony that Ashley’s presence rendered it substantially more 

difficult to earn overtime pay lacked credibility.

¶12 The court also reviewed the earnings documents Bronec presented and determined 

that on his current income, Bronec was capable of continuing to make the child support 

payments he had agreed to make at the time the Parenting Plan was executed. The court 

also concluded that certain expenses for the younger children were expected to diminish 

shortly with a reduction in day care expenses.

¶13 Addressing Bronec’s claim that the increased time with his two younger children 

represented a substantial change in circumstances and was not anticipated in the 

Parenting Plan, the District Court concluded otherwise. The court noted that the 

Parenting Plan provided for liberal adjustment to visitation and Bronec was not 

requesting a change to the visitation schedule. Moreover, Bronec testified at the hearing 

that he calculated the number of days the children would spend with him during the year 
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by using the schedule set out in the Parenting Plan. The District Court concluded that the 

time the children had spent and would spend with Bronec did not “represent a substantial 

and continuing change that will occur in future years.” The court also noted that the Plan 

provided that the children would spend more time with their mother during certain 

summers.

¶14 We have determined to decide this case pursuant to Section 1, Paragraph 3(d) of 

our 1996 Internal Operating Rules, as amended in 2003, which provides for 

memorandum opinions. The record reveals that the District Court reviewed the evidence 

presented at the hearing—both the oral testimony and the documents presented. Its 

findings of fact are not clearly erroneous nor are its conclusions based on those findings 

incorrect. Furthermore, the court did not abuse its discretion in denying Bronec’s motion 

to modify by concluding his circumstances had not changed so substantially as to render 

his child payment obligation unconscionable.

¶15 We affirm the judgment of the District Court.

/S/ PATRICIA COTTER

We concur: 

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART

/S/ JIM RICE

/S/ BRIAN MORRIS