No. 86-10 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

IN RE THE MARRIAGE OF 

SHIRLEY REA JENSEN, now 

SHIRLEY REA WANBERG, 

Petitioner and Appellant, 

and 

GORDON STEVEN JENSEN, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable James B. Wheelis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Rex Palmer, Missoula, Montana 

For Respondent: 

Connell & Beers; Thomas J. Beers, Missoula, Montana 

Filed: 

Submitted on Briefs: August 7, 1986 

Decided: October 20, 1986 

*# J 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from an order of the District Court 

of the Fourth Judicial District in and for Missoula County, 

Montana. The District Court found respondent husband 

responsible for child support that was not paid prior to June 

1, 1981. The court modified the amount of child support, 

made a supplemental decree regarding visitation part of the 

final decree, refused to hold the respondent in contempt, and 

made each party responsible for his own costs and attorney's 

fees. The petitioner wife appeals. We affirm. 

The parties in this action have been before this Courtbefore. In Re the Marriage of Jensen (Mont. 1981), 629 P.2d 

765, 38 St.Rep. 927. The facts prior to that decision are 

the same. In that action husband appealed the District 

Court's award of back child support based on a percentage 

increase in his hourly wage rate, future support payments of 

$275 per child per month, and the order to pay his wife's 

attorney's fees. A stay of judgment was granted pending 

appeal. We upheld the District Court. Predictably the 

decision did not relieve the friction between the parties. 

Husband (Steve) began making $550 monthly support 

payments after our 1981 decision. Because he did not pay the 

increased support until the appeal was final, he owed 

considerable arrearage and interest. Steve and appellant, 

Shirley, orally agreed that when he took the children for an 

extended visit his payment would be reduced proportionately 

with the number of days he had the children. Additionally, 

in January, 1982, Shirley, knowing Steve would be working 

fewer hours because of layoffs and strikes, orally agreed to 

a reduction of child support on a monthly basis during time 
of layoff and strike. Consequently, Steve has paid less than 

the total amount ordered by the District Court; however, he 

has lived up to the oral agreement with Shirley. 

Realizing he was about to be transferred from Bozeman 

to Missoula in the spring of 1984, with a concomitant loss of 

about $5,000 in subsistence pay, Steve discussed with Shirley 

the possibility of a modification of child support. Shirley 

indicated she preferred the present oral arrangement to an 

actual modification --that is, a reduction when Steve was on 

strike, laid off, or had the children. Nevertheless, Steve 

petitioned the court for reduction, claiming a change in 

circumstances so substantial and continuing as to make the 

terms of the 1980 decree unconscionable. Shirley's income 

had continued to rise since the 1980 modification, while 

Steve's remained more or less the same, with the reduction 

when he moved to Missoula. Shirley appeals the order issued 

from that hearing. 

The Court will consider the following issues: 

(1) Whether a child support decree can be modified 

orally to reduce the support, and if so, whether there was 

substantial evidence to find the oral modification binding; 

(2) whether there was substantial evidence to support 

the court's conclusion there had been a change in 

circumstances requiring a change in child support; 

(3) whether it was error to modify the visitation 

provisions of the existing decree; and 

(4) whether the court erred in denying attorney's 

fees. 

In reviewing orders of the District Court we presume 

the judgment of the District Court is correct. Reynolds v. 

Reynolds (Mont. 1983), 660 P.2d 90, 93, 40 St.Rep. 321, 324, 
and will reverse the District Court only when there is a 

clear abuse of discretion. Rule 52(a), M.R.Civ.P. 

The test of abuse of discretion is 

whether the trial court acted arbitrarily 

without employment of conscientious 

judgment or exceeded the bounds of reason 

resulting in substantial injustice. 

[Citing cases.] 

In Re the Marriage of Perry (Mont. 1985), 704 P.2d 41, 43, 42 

Shirley argues the court's findings of an oral modification of the child support provision is directly contrary to 

S 40-4-208, MCA. The statute reads in pertinent part: 

(1) Except as otherwise provided in 

40-4-201(6), a decree may be modified by 

a court as to maintenance or support only 

as to installments accruing subsequent to 

the motion for modification. 

(b) Whenever the decree proposed for 

modification contains provisions relating 

to maintenance or support, modification 

under subsection (1) may only be made: 

(i) upon a showing of changed 

circumstances so substantial and 

continuing as to make the terms 

unconscionable; or (ii) upon written 

consent of the parties . . . 

We have recognized that parties to a child support 

decree may orally modify the amount of support. See In Re 

the Marriage of Good (Mont. 1984), 691 P.2d 1337, 1339, 41 

St.Rep. 2109, 2111; Haaby v. Haa.by (1974), 165 Mont. 475, 

478, 529 P.2d 1387, 1388. The statute allows a court to 

modify a decree of support on two different theories. Under 

subsection (2) (b) (i) , the court may order modification upon a 

showing of changed circumstances so substantial and 

continuing as to make the terms unconscionable. This 

statutory statement is similar in nature to a statement that 

a modification may be made only upon substantial 
circumstances rendering enforcement inequitable. In 

addition, under (2) (b) (ii) , the court may make its order as 

to subsequently accruing installments based upon the written 

consent of the parties. The question then becomes whether an 

oral modification of the support or maintenance provisions of 

a decree is enforceable in Montana, and the extent of any 

such enforcement. 

In the recent case of State of Washington ex rel. 

Blakeslee v. Horton (Mont. 1986), 722 P.2d 1148, 43 St.Rep. 

1321, the uncontradicted findings of the District Court 

established an oral agreement which had been carried out for 

fourteen years by both the former husband and wife. The 

District Court concluded that when parties mutually agree to 

support amounts different than those set forth in the decree, 

equity cannot allow a party t.o nullify such agreement and 

later to claim the benefit simply on the basis that there is 

a meter running totaling a dollar loss in child support. We 

affirmed the District Court and held that equity demanded the 

claim of the mother should fail. 

In a similar manner, in In Re the Marriage of Cook 

(Mont. 1986), - P.2d - , 43 St.Rep. 1732, we agreed with 

the District Court that the mother was estopped from 

enforcing the support provision of the decree from the date 

she and the father had entered into an oral agreement 

modifying the amount of the support provisions. We noted the 

provisions of § 40-4-208, MCA, are subject to the doctrine of 

equitable estoppel under the facts of the case, pointing out 

that the doctrine may be applied only in those cases where 

there is clear and compelling evidence of its elements. 

In the present case, we again find an oral agreement 

between a mother and father which has been followed for 
several years. We therefore hold that in Montana a decree for 

support may be modified on equitable grounds by a court where 

there is clear and compelling evidence of the terms of an 

oral agreement of modification. We further hold such 

modification may be applied only to maintenance and support 

payments to be made subsequent to the oral agreement for 

modification. These conclusions are consistent with S 

40-4-208, MCA, which limits modifications to installments 

subsequently accruing, and which also limits the power of the 

district court to modify, except upon a showing of changed 

circumstances so substantial and continuing as to make the 

terms unconscionable where there is no written consent of the 

parties. These conclusions also are consistent with both 

Blakeslee and Cook where we enforced oral agreements 

pertaining to installments of support subsequently accruinq. 

We further hold that where an oral agreement for the 

modification of maintenance or support payments is enforced, 

not only must the agreement be made in good faith, but the 

mother or father may not impair the rights of any assignee of 

support payments based upon public assistance paid to a 

party. In the present case the child support decree can be 

modified orally to reduce subsequently accruing support 

payments. 

The next question before the Court is whether there is 

an enforceable oral agreement between Shirley and Steve. A 

party to an agreement which has been performed for some 

length of time is estopped to deny its validity. A letter 

from Shirley to Steve provides written manifestation of the 

agreement: "We have always come in agreement upon the 

reduction of support during layoffs." She also testified, 

"We discussed the shortage almost every time there was a. 
shortage." Steve testified that he and Shirley had an 

agreement whereby he would reduce child support payment.^ 

during strikes and layoffs or when he had the children. 

There is substantial evidence to support the finding of the 

District Court an enforceable oral agreement had been made. 

On finding there is an enforceable oral agreement, we 

must consider whether there is substantial evidence that 

there has been a change in circumstances requiring a change 

in child support. Not surprisingly, conflicting evidence as 

to the parties' financial circumstances was offered. It is 

the duty and function of the District Court to resolve such 

conflict and its findings will not be disturbed on appeal 

where they are based on substantial, though conflicting 

evidence. In Re Support of Rockman (Mont. 1985) , 705 P. 2d 

590, 592, 42 St.Rep. 1323, 1325. 

While Steve's wages have been reduced, Shirley's 

financial situation has improved. She has remarried and her 

new husband has a steady job. They are buying a piano and an 

expensive car. Shirley owns two pieces of rental property. 

They have no day-care expenses because of Shirley's work 

schedule, and recently took a trip to Hawaii. Steve lives in 

a fifth-wheel travel trailer, and has assumed the financial 

obligations for his disabled girl friend and her young son. 

He owns very little personal property and no income producing 

property. His employment is subject to strikes and layoffs, 

yet he has tried to make payments as he is able. The court 

found these changed circumstances so substantial and 

continuing as to make the terms of the 1980 modification 

unconscionable pursuant to S 40-4-208(2) fh) (i), MCA. The 

court's findings are not in error. 
Shirley's argument it was error for the District Court 

not to grant the petition for child support income deduction 

is moot. The day this appeal was filed, the parties executed 

a stipulation that Steve was to pay $3,460 to Shirley, and 

Shirley was to release all Steve's funds held by the Missoula 

County Sheriff's Department in satisfaction of his 

obligations to her pursuant to paragraph 1 of the District 

Court's order of September 27, 1985. 

Shirley contends it was error for the court to modify 

the visitation provision of the existing decree because 

neither she nor the court had been served notice of the 

motion to modify. "Under 5 40-4-217(3), MCA, the trial court 

may modify visitation rights when the modification would be 

in the best interest of the children." Gall v. Gall (1980) , 

187 Mont. 17, 19, 608 P.2d 496, 498. The original decree 

allowed Steve reasonable visitation rights on the then 

apparent ability of the parties to agree. Testimony during 

the hearing indicated conflict between Shirley, Steve and 

Steve's girl friend over visitation. The court did not abuse 

its discretion in concluding visitation periods needed to be 

spelled out to preclude further disagreements between the 

parties. There is no evidence such modification would not be 

in the best interests of the children. The modification 

clarifies visitation to guarantee them frequent and 

substantial contact with their father. In view of the 

continuing instances of controversy between the parties, such 

a decision is in the best interests of the children. 

Shirley is not entitled to attorney's fees. Award of 

attorney's fees under the statute is not mandatory. Section 

40-4-110, MCA. In Re the Marriage of Carlson (Mont. 1984), 

693 P.2d 496, 501, 41 St.. Rep. 2419, 2425. Shirley argues 
the separation agreement and an award of attorney's fees in 

Jensen, supra, 629 P.2d 765, 38 St.Rep. 927, entitles her to 

cost of suit in this action. However, in that case she 

prevailed and made a showing of need. In the case at bar she 

has made no showing of need and is not the prevailing party. 

We will not disturb the District Court's refusal to award 

attorney's fees. 

The order of the District Court is approved.