No. 92-256 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

IN RE THE MARRIAGE OF 

ROBERT KUKES , 

Petitioner and Respondent, . ~ 

and 

JANET KUKES, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Larry W. Moran, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Lyman H. Bennett 111; Morrow, Sedivy & Bennett, 

Bozeman, Montana 

For Respondent: 

Thomas I. Sabo, Attorney at Law, Gallatin Gateway, 

Montana 

Filed: 

Submitted on Briefs: April 1, 1993 

Decided: May 18, 1993 
Justice John Conway Harrison delivered the Opinion of the Court. 

This is an appeal from an order of the Eighteenth Judicial 

District Court, Gallatin County, Montana. The order modified a 

decree of dissolution of marriage. We reverse. 

The former husband, respondent Robert Kukes (Robert) commenced 

this action in 1989 by filing a petition for modification of the 

1986 decree, seeking to reduce his child support obligation, share 

the child's uncovered medical expenses equally with his former 

wife, and clarify his visitation rights. Thereafter the former 

wife, appellant Janet Kukes (Janet) filed a combination petition 

for contempt and modification or clarification of the decree. 

These petitions were heard by the District Court, which filed 

findings of fact and conclusions of law and entered judgment 

thereon. The decision granted Robert the relief prayed for, and 

more than he prayed for, including additional relief as determined 

by the court. This appeal followed. 

Janet and Robert were married in Billings, Montana, in 

November 1981. Their only child, Brittany, was born on August 17, 

1984. She has a partial hearing loss and must wear two hearing 

aids. The marriage was dissolved in Bozeman, Montana, on May 5, 

1986. At the time of the dissolution, Robert was enrolled as an 

undergraduate in the School of Engineering at Montana State 

University (M.S.U.), while Janet was a graduate student in the 

School of Education at M.S.U., seeking elementary teacher 

certification. Janet received certification in December 1986 and 
moved to Great Falls, Montana, where she taught elementary school 

and eventually became a case manager for Quality Life Concepts, 

Inc. Robert received an engineering degree in June, 1990 and 

moved to Las Vegas, Nevada, where he was employed as an engineer at 

the time of this appeal. 

The parties entered a "marital and property settlement 

agreement" in April 1986. This agreement was incorporated in the 

decree of dissolution. It gave Janet sole custody of Brittany, 

with Robert to have liberal visitation rights. Robert was to pay 

child support at the rate of $300 per month, adjusted annually 

based on the Consumer Price Index. He also agreed to maintain 

major medical and hospital insurance for Brittany's benefit and to 

pay all of her uncovered medical, dental, and optical expenses 

until she reached the age of 21; to establish a trust fund for 

Brittany at the First Security Bank in Bozeman and to contribute 

$50 a month to that fund initially and $75 a month after he 

graduated from college, until Brittany either used the fund for 

college education or reached the age of 21; and to maintain an 

$80,000 life insurance policy naming Brittany as the beneficiary. 

As support and maintenance, Robert agreed to pay Janet's 

expenses for four quarters as a full-time student, including 

tuition, books, and living expenses. The total sum, $9,800, was to 

be deferred until six months after Robert had finished college, at 

which time Robert was to begin making monthly payments, including 

interest at the annual rate of 10 per cent. 

On April 19, 1989, Robert filed a petition for modification 
alleging that he was a full time student without sufficient money 

to pay child support as provided in the decree, and that he had 

been denied liberal visitation rights. Janetmoved to dismiss this 

petition, on the grounds that Robert had not shown changed 

circumstances "so substantial and continuing as to make the terms 

of the decree unconscionable," as 5 40-4-208(2) (b), MCA, requires. 

Robert had been a full time student in 1986 when the decree was 

entered, and he was still a full time student when he filed his 

petition for modification. The District Court denied Janet's 

motion on June 20, 1989, noting that the motion was "sound in many 

respects, particularly on the change of the amount of child 

support," but concluding that it should hear Robert's allegations 

regarding denial of visitation and establish his visitation rights. 

A hearing was set for April 30, 1990, but it was continued 

without a date after Janet requested that the child support issue 

not be decided until after Robert had completed his education. 

Robert graduated in June 1990 and in July 1990 he moved to Las 

Vegas . 

On October 29, 1990, Janet filed a petition for contempt and 

modification or clarification of the decree, alleging that she had 

not received evidence of health insurance coverage for Brittany; 

that Robert had not reimbursed her for medical expenses incurred on 

Brittany's behalf; that Robert had borrowed $2,197.91 against his 

life insurance policy and the insurance company had told her the 

policy might be canceled; and that she had been unable to determine 

whether Robert had been contributing to Brittany's trust fund as 
provided in the decree of dissolution. The District Court heard 

argument on this petition and on Robert's petition as well, on 

February 11, 1991. 

Janet presents seven issues referring to decisions not 

supported by the evidence and constituting an abuse of discretion 

by the District Court. We have restated them as follows: 

1. Whether this Court's adoption of child support guidelines 

constituted, in itself, a change of circumstances so substantial 

and continuing as to make the terms of the decree of dissolution 

unconscionable, as contemplated by 5 40-4-208(2), MCA. 

2. Whether the District Court's findings of fact were 

sufficient to demonstrate a change of circumstances so substantial 

and continuing as to make the decree unconscionable, absent a 

finding that the adoption of the guidelines satisfied the 

requirement. 

3. Whether the District Court erred in failing to consider 

all of the relevant factors set forth in the applicable statutes 

and child support guidelines. 

4. Whether the District Court should have granted Robert 

relief that he had not sought, when Janet had no opportunity for 

contrary argument. 

5. Whether the District Court erred in modifying Robert's 

child support obligation retroactively. 

6. Whether the District Court erred in failing to consider 

Janet's prayer for attorney's fees. 

7. Whether the District Court erred in failing to adhere to 

the statutory requirements for income withholding and in failing to 

advise the parties of the jurisdiction of the Department of Social 

and Rehabilitation Services to review and modify child support in 

the future. 

As the first two issues both address the statutory standard 

for modification of child support, we consider them together. The 

question common to both is whether the District Court's 

modification of child support was justified by a change of 
circumstances so substantial and continuing as to make the terms of 

the original decree unconscionable, as 5 40-4-208(2)(b), MCA, 

requires, absent written consent of the parties. 

We conclude that child support modification was not justified 

in this case; therefore we do not address the remaining issues. 

In its Finding of Fact No. 16 the District Court stated that 

this Court's adoption of the guidelines was Itan event constituting 

substantial change of circumstances for [Robert]." This was the 

court's only finding concerning changes in Robert's circumstances. 

Thus, even taken in a light most favorable to Robert, the court's 

findings of fact fail to show any change in Robert's circumstances 

that would justify a reduction in the amount of child support below 

the amount established in the original decree. Indeed, the record 

suggests that Robert's circumstances improved substantially between 

the time of the original decree, when he was a student, and the 

time of the hearing on his petition for modification, when he was 

employed as a civil engineer. 

Our standard of review for an award of child support is that 

a presumption exists in favor of the district court's 

determination. We will reverse a district court's determination 

only for an abuse of discretion. In re Marriage of Clingingsmith 

(1992): 254 Mont. 399, 406, 838 P.2d 417, 421-22. With regard to 

the district court's findings of fact, however, we have held that 

" [el rror occurs when the court accepts one party s proposed 

findings of fact without proper consideration of the facts and 

where there is a lack of independent judgment by the court.1' In re 
Marriage of Callahan (1988), 233 Mont. 465, 472, 762 P.2d 205, 209. 

Here, the District Court clearly erred in failing to make findings 

of fact that support its modification of child support. 

In Gall V. Gall (1980), 187 Mont. 17, 20, 608 P.2d 496, 498 

we stated that: 

the essential requirement is that there be an evidentiary 

basis to determine that it would be unconscionable to 

continue the child support payments presently in effect. 

Accord, In re Marriage of Forsman (1987), 229 Mont. 411, 747 P.2d 

861: In re Marriage of Bliss (1980), 187 Mont. 331, 609 P.2d 1209. 

We conclude that adoption of the guidelines was not in itself a 

sufficient change of circumstances to justify modification of child 

support under 5 40-4-208, MCA. 

We reverse and remand for entry of an order consistent with 

this opinion. 

We concur: 
May 18, 1993 

CERTIFICATE OF SERVICE 

I hereby certlfy that the following order was sent by United States mail, prepaid, to the 

following named: 

Lyman H. Bennett, I11 

Morrow, Sedivy & Bennett 

P.O. Box 1168 

Bozeman, MT 59771-1168 

Thomas I. Sabo 

Attorney at Law 

P.O. Box 396 

Gallatin Gateway, MT 59730 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA 

BY: