No. 54-254 IN THE SUPREME COURT OF THE STATE OF MONTANA 1984

IN RE THEMARRIAGE OF KENNETH PAY CARLSOWI Petitionerand Respondent, and VICKIE Respondent and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, TheHonorable William J. Speare, Judgepresiding.

COUNSEL OF IR~~CORD: For Appellant: StevenJ. Shapiro, Helena, Montana

For Respondent: Wright, Tolliver & Guthals, Billings,Montana

Submitted on Briefs: Oct. 11, 1984 Decided: December 27, 1984

Filed: rji-'i ' [\tb' , .uu-t

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--- ClerkMr. LTustice John 

### C. Sheehy delivered the Opini.on of the Court.

Vickie Carlson Shapiro appeals from a post-judgment order of the Thirteenth Judicial District,Yellowstone County, reducing the child support monies to be paid by Kenneth Ray Carlson. 

### The order of the District Court is reversed and remand-ed. Kenneth and Vickie Carlson married in 1970 and divorced

on July 5, 1979. They have three children, two eleven-year-olds and a eight-year-old, who live with their mother. The District Court incorporated in the marital dissolution decree a contractual agreement between the parties that the father would pay to the mother $150 per month for each child for their support. The mother received no maintenance under the aareement. The father is a high school graduate with vocational training in bookkeeping and extensive work experience in retail store management. The mother has no job-market skills. She currently works at home providing temporary child care. Both parties remarried after the dissolution. At the time of the hearing the father was unemployed, but at the time of the djvorce he earned $36,0@O per year as a store manager. His annual earnings later increased to $47,000. He voluntarily transferred.to California then quit his job as a store manager due to job stress. He has had several jobs since returning to Montana,but because of hea-lthand financial reasonshe has been unable to obtain regular employment. The District Court found that it is unlikely he will earn a salary comparable to what he earned at the time of thedecree. The mother is currently earning approximately $400 per month fromher child carework. On October 25, 1983, the father petitioned the District Court to reducehis child supportpayments. Reforepetitioning, the fatherpermitted his children'smedical insurance to expire and did not pay child support 

### for them during July, August, and September of 1983. After September he did not pay his full obligation monthly)( and made ].ate payments. Both parties submitted affidavits of their necessary monthly expenses to the DistrictCourt. The husband's affidavit shows: House Payment $ 500.00 Heat 65.00 Light 35.00 Phone 40.00+ Paper 7.50 Car Insurance 25.00 Car Payment/'83 Buick 289.00 Gas 104.00 Groceries 450.00 Medical 25.00 Dental 15.00 Note

## - Bark 35.00 Visa 96.00 MasterCard 70.00 Montgomery Wards 32.00 Child Support 225.00 Clothing 25.00 Tota1 $2,036.00 The foregoing are the expenses of the father, his present wife, and her two children. His wife receives child. support but the District Court refused.to allow testimony as to its amount. Themother's a.ffidavitshows: House Payment $ 470.00 TJtilities 100.00 Gasoline and car

maintenance 48.00 Life insurance 50.00 Car insurance 28.00 House insurance 40.00 Groceries 280.00Clothing 40.00 Telephone 16.00 Newspaper 10.00 Household maintenance 24.00 Entertainment 16.00 Medical, dental,

optical 32.00 Total $1,154.00 The mother's figures are for hersel-f and the three children. She excluded her present husband's expenses from her affidavit. The DistrictCourt stated its findings that the cost for providing the children

## 's needs have increased, not diminished, since the decree of dissolution. Nevertheless the District Court redu-cedthe child support payment that was to 

### be made by the father to the sum of $75 per month per child,

or a total of $225per month. The wife raises five issues on appeal:

(1) The father was not entitled to equitable relief because he came to the court with "uncleanha.ndsWin that he had notmade all of his child supportpayments. (2) It was error for the District Court to conclude that the husband's circumstances had substantially changed, and that the sum 

### of $450.00 per month for child support was

(3 The father's contractual obligations 

### for child support precluded modification by the DistrictCourt. (4) The District Court ahused its discretion 

### in reducing the father's child support obligation. (5) The District Court erred in failing to award the attorney fees and costs. In determining whether child support should he modified the District Court is governed by section 40-4-208(2)(b), MCA,which states:

### "(b) Whenever thedecreeproposed formodification 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." The standard for this Court in reviewing the District Court's determination is to give deference to the lower court's discretion. "This Court will reverse the District Court on this issue only if the DistrictCourt's findingsare clearly erroneous in light of the evidence in the record." Hughes v. Hughes (Mont. 1983), 666 P.2d 739, 741, 40 

### St-Rep. 1102, 11.05. A 

### presumption exists in favor of the District Court iudgment. To bring about 

### a reversal of the District Court the appell-antmust demonstrate that there was a clear abuse of 

### discretion or an error in the District Court's findings. Reynolds v. Reynolds (Mont. 19831, 660 P.2d 90,

ISSUE NO. 1 

### Did the father's "uncleanhands"preclude 

### -- the DistrictCourt from reducing the child support tobe paid by him? This Court has held that when child support comes due under a,

### decree it becomes a judgment debt simi1ia.rto any other judgment for money and cannot be retroactively modified.. Wil.l.i.amsv. Budke (19801,186 Mont. 71, 77, 

### 606 P.2d. 515, 

### 518. We recognize that one seeking equity must do equity and that the nonpayment of child support is inequitable, and in some cases reprehensible. However, holding that a 

### petitioner cannot seekmodification until allpast due child support is paid would be an unworkable solution, deny access to the courts,and ignore a 

### long series of

### cases that have allowed modification of 

### future support pay-. 

### ments. Williams v. Budke, supra; Knowltonv. Knowlton (~ont. 1981), 632 P.2d 336, 38 St.Rep. 1304. The law, as stated in or$c- 

### section 40-4-208(I)

### , continues to be that anme+-mn for modification may only alter support payments accruing subsequent rtydrcr\ 

### to the&r for modification. ISSUE 

### - NO. 

### - 2 Had the father's circumstances changedso substantiallyand continuinglyas tomake thepayment of $450 per month forchild support unconscionable? The record substantiates that the father is currently

~343 

### unemployed.ithereis no evidence supporting a conclusion that this substantial change in the father's circumstances is continuing. In Hughes

### v. Hughes (Mont. 1.983), 666 ~.2d 739, 741, 40 St.Rep. 1102, 1105, the District Court findingswere held to be clearly erroneous because no evidence was presented toprove that thehusband's change in circumstances

was continuous. The DistrictCourt correctly identified the question involved: "Can he go to work?" The father's evidence failed to show that his unemploymentwas permanent or that earning capacity had been substantiallyreduced. The amount to which the child support payments was reduced is an amount less than welfarewould allow the mother to receive under Aid to Dependent Children. The effect of the DistrictCourt's decision is to transfer to thewife, who has a far lesser earning capacity,more thanhalf of the cost of 

### supporting the children. It appears to us that the effect of an inadequate child support award is that the adverse economic impact of divorce is absorbed by 

### the custodial parent and the children. In fact the children become the unwitting victims of inadequate child support. The difficult task facingDistrict Courts inproperly awarding child support payments to the custodial parent is amatter of concern for all. We offer, as a guideline for consideration in determining child support, the formula set out in an article "How to Calculate Child Support"by Maurice Franks, appearing in Case and Comment, January-February, 1981. The theory of the formula is that the financial needs of the child should be paid by both parents inproportion to their earning capacity. "N" equals the total needs of the child and should include adequatedaycare costs if needed. "Nuwill vary according to the parents hut should never be lower then AFDC payments. "C"equals the earning capacity of the custodialparent. 

### "V" equals the earning capacity of the visitation parent. The total needs of the child,N, is met by both parents in proportion to their ability to contribute. Expressed

and As an example, if a child has monthly needs for food, clothing, shelter, recreation and daycare amounting to $400, / I then N = $400. If the visitation parent earns $30,000 and th.ecustodial parent earns $10,000, the child support award is:

The visitational parent will contribute $300; the custodial parent will contribute $100 in kind. Of course, C and V must realistically reflect what the parents are capable of earning using their actual earnings

as a guideline. Use of the formula rejects romantic notionsof 

### women being supported by their ex-husbands, or fathers refusing employment they do 

### not like. Married parents have

no such luxury, and it should not be 

### a luxury afforded divorcedparents. In the present ca.se,the District Court found that the children's needs have increased, but ignored the testimony regarding the mother's earning capacity and the fact that if she works the children need day care. The court apparently assumed that the father's unemployment is permanent. Ry reducing the child support to $75 per month per child, the District Court shifted the greater financial hurden of supporting the children to the mother. In real-ity,the effect of 

### the District Court decree is to shift some of the hurden of 

### supporting the chil-drento the mother

### 's current husband.. The father came into District Court asking that the child support be equitably adjusted. As this Court said in Barbourv. Barbour (1958),134Mont. 317, 326, 330 P.2d 1-033, 1098. "However, the law, the children must eat. He who seeks equitymust.do equity." ISSUE 

### NO. 3 

### Did the contractual obligation for child 

### -- support preclude modificationby theDistrictCourt? In all divorce matters relating to children, the best interests of the children control. While terms of a contract may be introduced as evidence in some instances,the custody and support of children are never left to contract between theparties. The mother relies on Winters v. Winters (Mont. 1980), 610P.2d 1165, 37

### St.Rep. 840, for 

### support of the proposition that some areas of divorce can be governed by contractual agreement between the parties. This remains true,but aswe stated inWinters atpage 1168:"What we hold here has no hearing on the power of the court to modify agreements of the parties regarding child support in later applications

(citationomitted). The question before the court [in Winters] did not i.nvol.ve the welfare of the children, inwhich event the court could modify any agreement of the parties to achieve their protection (citationsomitted)

# ." ISSUENO. 

### 4 Did the District Court abuse its discretion 

### - - in reducing the child support obligation? The mother argues that the equities of this case are such that the judge abused his discretion in reducing the father's child supportpayments. We are remanding this cause for error in the finding that the father's current changed circumstances are permanent. We also determine that the District Court abused its discretion in reducing the amount of child support which the DistrictCourt ordered to be paid by the father on the ground that it was improperlymeasured. The affidavit of themother showsexpenses of $1,154per month for herself and the children. The District Court's findings are that the children's expenses are greater than $450 a month. ~1t is not the duty of ~~~axdIrfIrfIrfthe mother's new husband to provid-e support. As we said in Reynolds v. Reynolds (Mont. 1983), 660 P.2d 90, 94, 40 St.Rep. 321, 325, a new spouse" income can be considered in determining a parent's ability to pay child support, but it cannot be determinative nor does it relieve the other parent of the obligation to supporthis or her chil-dren. There was testimony in this case that the father's new wife received child support from her former husband. We agree with the District Court that the new wife had no obligation to support these children,but the information should have been admitted for a different purpose. The father has claimed expenses of $2,036 forhimself,his

### newwife, and herchildren. He i.s not, however, responsible for supporting those children. By not deductingwhat the new wife received in child support from the fa.therls claimed expenses, the father's affidavitoverst-atedhis expenses permonth. As stated.above, on review thisCourt gives deference to the District Court inchild support matters. Appellant must demonstrate there is clear abuse of discretion or erroneous findings toreverse theDistrictCourt. Reynolds v. Reynolds (Mont. 1983), 660 P.2d 90, 93, 40 St.Rep. 321., 324. We are remanding this cause for error in finding that the child support payments should 

### ., be reduced to the figures here 1113 @$"4~ without supporting 

### e.asee- of the father's present earning capacity. ISSUE -- NO. 5 Should thewife have been awarded attorney fees? The award of attorney fees under section 40-4-110, MCA, isnot mandatory upon theDistrict Court. Sincethecause is being remanded for other reasons, we 1-eave open to the DistrictCourt whether in lightof the further record inthis

case thewifewould be entitledtoattorney fees. Reverse and.remand for furtherproceedings.

We Concur:

Chief JusticeMr. Chief Justice Frank I. Haswell, specially concurring: I concur in the resultbut Ido not believe that determination of the proper amount of child support can be reduced to an algebraic formula.