No. 54-254 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

IN RE THE MARRIAGE OF 

KENNETH PAY CARLSOW I 

Petitioner and Respondent, 

and 

VICKIE 

Respondent and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable William J. Speare, Judge presiding. 

COUNSEL OF IR~~CORD: 

For Appellant: 

Steven J. 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 

I 

&, *- -4 --- Clerk 
Mr. 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-lth and financial reasons he 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 the 
decree. The mother is currently earning approximately $400 

per month from her child care work. 

On October 25, 1983, the father petitioned the District 

Court to reduce his child support payments. Refore petitioning, the father permitted his children's medical 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 District Court. 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 

Ma sterCard 70.00 

Montgomery Wards 32.00 

Child Support 225.00 

Clothing 25.00 

Tota 1 $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. 

The mother's a.ffidavit shows: 

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 280.00 
Clothing 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 District Court 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-ced the child support payment that was to 

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

or a total of $225 per month. 

The wife raises five issues on appeal: 

(1) The father was not entitled to equitable relief 

because he came to the court with "unclean ha.ndsW in that he 

had not made all of his child support payments. 

(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 District Court. 

(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 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." 

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 District Court's findings are 

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-ant must 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 "unclean hands" preclude 

the District Court from reducing the child support to be paid 

by him? 

This Court has held that when child support comes due 

under a, decree it becomes a judgment debt simi1ia.r to any 

other judgment for money and cannot be retroactively modified.. Wil.l.i.ams v. 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 seek modification 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; Knowlton v. 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 changed so 

substantially and continuingly as to make the payment of $450 

per month for child support unconscionable? 

The record substantiates that the father is currently 

~343 

unemployed .ithere is 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 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. 

The amount to which the child support payments was 

reduced is an amount less than welfare would allow the mother 

to receive under Aid to Dependent Children. The effect of 

the District Court's decision is to transfer to the wife, who 

has a far lesser earning capacity, more than half 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 facing District Courts in 
properly awarding child support payments to the custodial 

parent is a matter 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 in proportion to their earning capacity. 

"N" equals the total needs of the child and should include 

adequate daycare costs if needed. "Nu will vary according to 

the parents hut should never be lower then AFDC payments. 

"C" equals the earning capacity of the custodial parent. "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.e custodial 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 notions 
of 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 

divorced parents. 

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-dren to the mother ' s current husband.. 

The father came into District Court asking that the 

child support be equitably adjusted. As this Court said in 

Barbour v. Barbour (1958), 134 Mont. 317, 326, 330 P.2d 1-033, 

1098. "However, the law, the children must eat. He who 

seeks equity must. do equity." 

ISSUE NO. -- 3 Did the contractual obligation for child 

support preclude modification by the District Court? 

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 

the parties. 

The mother relies on Winters v. Winters (Mont. 1980), 

610 P.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 as we 

stated in Winters at page 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 

(citation omitted). The question before the court 

[in Winters] did not i.nvol.ve the welfare of the 

children, in which event the court could modify any 

agreement of the parties to achieve their protection (citations omitted) . " 

ISSUE - NO. 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 support payments. 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 District Court ordered to be paid 

by the father on the ground that it was improperly measured. 

The affidavit of the mother shows expenses of $1,154 per 

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 support his 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 for himself, his new wife, and her 
children. He i.s not, however, responsible for supporting 

those children. By not deducting what the new wife received 

in child support from the fa.therls claimed expenses, the 

father's affidavit overst-ated his expenses per month. 

As stated. above, on review this Court gives deference to 

the District Court in child support matters. Appellant must 

demonstrate there is clear abuse of discretion or erroneous 

findings to reverse the District Court. 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 the wife have been awarded attorney 

fees? 

The award of attorney fees under section 40-4-110, MCA, 

is not mandatory upon the District Court. Since the cause is 

being remanded for other reasons, we 1-eave open to the 

District Court whether in light of the further record in this 

case the wife would be entitled to attorney fees. 

Reverse and. remand for further proceedings. 

We Concur: 

Chief Justice 
Mr. Chief Justice Frank I. Haswell, specially concurring: 

I concur in the result but I do not believe that determination of the proper amount of child support can be reduced 

to an algebraic formula.