NO. 95-048 INTHESUPREMECOURTOFTHESTATEOFMONTANA 1995

APPEAL FROM: District Court of the Sixteenth Judicial District,

In andfor the County of Powder River, The Honorable Kenneth R.Wilson, Judge presiding.

COUNSELOFRECORD:

For Appellant: Jerrold L. Nye, Nye &Meyer, Billings, Montana For Respondent: A. Lance Tom, Lucas &Monaghan, Miles City, Montana

Filed: Submitted onBriefs: April 27, 1995 Decided: July 17, 1995Justice William E. Hunt, Sr., delivered the opinion of the Court.

Appellant Scott J. Sanburn appeals from an order modifying child support issued by the Sixteenth Judicial District Court, Powder River County. Weaffirm. The sole issue onappeal is: Did the District Court err when it determined the amount of modification in appellant's child support obligation? Scott and PamSanburn were divorced onJuly 14, 1992. Scott

wasordered to pay$650per month in child support for the parties' three minor children. In May 1994, one of the children was emancipated following graduation from high school. Pursuant to the final decree of dissolution, upon the oldest child's emancipation, Scott's child support obligation wasreduced to $500 per month as of June 15, 1994. In July 1994, Scott filed amotion to modify his child support obligation based onchanged financial circumstances. Ahearing onthis motion washeld onSeptember 8, 1994. At the hearing, the District Court heard testimony from both parties and received financial affidavits and child support calculations from Scott. Scott's child support calculation worksheet placed his child support obligation amount at $149 per month. Scott did not produce documentation at the hearing to support his assertion that his finances had changed to the extent that child support modification wasnecessary. Hedid not provide anydocumentation of his expenses. Scott's testimony regarding his current andfuture financial circumstances wasvague, andconsisted of rough estimates of the dates of employment and the amount of 2money earned. Hewasnot any more specific when testifying asto

his future employment and earnings. Hetestified that heworked construction andranching jobs, andalso that heis self-employed. Heraises and sells calves with apartner. Hetestified that he would be losing money onthe calf operation for 1994, but that he intended to continue the operation. His testimony was contradictory and confusing, and contradicted the information in his financial affidavit. There were discrepancies in Scott's testimony between the amount of his earnings andexpenses. Scott testified that his tax returns donot accurately reflect the amount of his earnings, due to the inclusion of personal expenses as business expenses for tax purposes. Because of the contradictory andconfusing nature of Scott's testimony, following the hearing the District Court ordered him to submit more accurate child support calculations. Scott's second calculated child support obligation increased by$6, to atotal of $155 per month. Pam's child support calculation worksheets put Scott's child support obligation amount at $507 per month. The existing child support obligation was$500per month. TheDistrict Court found Scott's first and second child support calculations, and his testimony, to be incredible, and rejected them in toto. Theonly documentation the District Court hadwasScott's 1993 and 1992income tax returns, andit based its award of child support on that documentation. The District Court set the child support amount at $405 per month.

3Did the District Court err when it determined the amount of

modification in appellant's child support obligation? Our standard of review in child support modifications is whether the district court abused its discretion. In re Marriage of Hill (1994), 265Mont. 52, 57, 874 P.2d 705, 707 (citing In re Marriage of D.F.D. andD.G.D. (1993), 261Mont. 186, 203, 862 P.2d 368, 378). Scott argues that the District Court attributed income to him that is not supported bythe record. The District Court used the following figures in its child support calculations for Scott:

Wages $12,373 Self-Employment 6,214 Depreciation 3,500 Interest TOTAL: $22,1% These figures came from Scott's income tax returns and from his July 1994 affidavit. Modification of achild support obligation requires that the party seeking the modification establish circumstances so substantial and continuing as to make the original child support obligation unconscionable. Section 40-4-208(2) (b)(i), MCA. In re Marriage of Paunovich (Mont. 1995), 890 P.2d 1291, 1293, 52 St. Rep. 144, 145 (citing In re Marriage of Clyatt (1994), 267 Mont. 119, 121-22, 882 P.2d 503, 505). In this case, Scott failed to establish that his financial circumstances changed tothe extent that his original child support obligation was unconscionable. Heprovided no documentation to support his testimony. His testimony wascontradictory, vague, and 4confusing, anddid not support the information heprovided in his

financial affidavit. After the hearing, the District Court requested different child support calculations from Scott. Scott testified that hewasable to pay $200per month. Hewascurrently paying $500 per month, and his second calculation indicated an obligation amount of $155 per month. The evidence in the record supports the amount of income the District Court attributed to Scott. Weseenoabuse of discretion by the District Court. Wehold that the District Court did not abuse its discretion when it determined the amount of income attributable to Scott. Scott contends that the child support obligation ordered by the District Court does not conform to the Montana Child Support Guidelines. The District Court ordered Scott to submit newchild support calculations after the hearing. The District Court stated in its order that it rejected Scott's testimony andhis two child support calculations in toto. It used a combination of figures from Scott's income tax returns andfrom his July 1994 affidavit. Whenadistrict court does not specifically follow the child support guidelines it must state the reasons why they are inappropriate in that case. Section 40-4-204(3) (b), MCA. In this case, the District Court stated that it rejected Scott's testimony and child support calculations in toto. It stated that Scott's contradictory testimony andhis child support computations put him in a "disingenuous" position. It is clear

5that the District court could not base its child support

calculations on evidence that it rejected. It rejected Scott's offered evidence because of its incredibility. Wehold that the District Court conformed to the Child Support Guidelines. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1988 Internal Operating Rules, this decision shall not becited as precedent andshall bepublished byits filing asapublic document with the Clerk of the Supreme Court andby areport of its result to Montana LawWeek, State Reporter andWest Publishing Company.

Weconcur:

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