                                                   No.    84-189

                   I N THE SUPREI,E COURT OF TIlE STATE O F MONTANA

                                                          1984




I N RE THE MARRIAGE O F
SHERYLE J O RICHARDSON,

                                     P e t i t i o n e r and A p p e l l a n t ,

         and
WAYNE LYNN RICHARDSOIil,

                                     R e s p o n d e n t and R e s p o n d e n t .




APPEAL FROM:          D i s t r i c t C o u r t of t h e F o u r t h J u d i c i a l D i s t r i c t ,
                      I n and f o r t h e C o u n t y of M i s s o u l a ,
                      T h e H o n o r a b l e J a m e s B. Wheelis, Judge p r e s i d i n g .


COUNSEL OF RECORD:


         For Appellant:

                   T e r r y A.      Wallace, M i s s o u l a , Montana


         For R e s p o n d e n t :

                   D a t s o p o u l o s , MacDonald & Lind;                D e n n i s E.   Lind,
                   Missoula, Montana




                                                   S u b m i t t e d on B r i e f s :    Nov.   20,   1984

                                                                        Decided:         January 2,      1985



Filed:          ;I4\>     1qgq




                                                   Clerk
Kr. Chief Zustice Frank I. Haswell delivered the Opinion of
the Court.
      This is an appeal from an order of the Fourth Judicial
District Court, Missoula County, amending the support provi-
sions of the Richardsons' settlement agreement and decree.
We affirm in part and reverse in part.
      The E-ichardsons divorced in 1979.        Their separation
agreement and ultima-tely the decree included a provision for
child support and maintenance an.d an escalation clause re-
quiring yearly cost of living increases in the support and
maintenance payments.     Sheryle Richardson remarried in 1.981
and, as   provided   in   the    agreement, maintenance payments
terminated.    In March 1982 Sheryle successfully petitioned
for an increase in child support.        This Court affirmed the
increased award.     See In re Marrhge of Richardson (Mont.
1983), 658 P.2d 398, 40 St.Rep. 155.

      The couple's present dispute involves Wayne Richard-
son's choice of base month for calculation of cost of living
increases.    The agreement requires that calculation of in-
creases be made using February 1979 as the base date.      When,
in M.arch of 1982, th.e court ordered an increase in support
amount, Wayne adopted the effective date of the increase as
the base date for the entire cost of living calculation.      In
1983, Sheryle again petitioned the District Court.     The court
initially ordered use of the 1979 date but, upon Wayne's
motion for reconsideratj.on, reversed and ordered use of the
1982 date.    Sheryle appeals.
      The sole issue on appeal is whether the District Court
abused its discretion in modifying the cost of li-ving clause
of a settlement agreement where the court had previously
illcreased the amount of child support provided for in the
aareement   .
      Sheryle first contends that the District Court abused
its discretion in amending an essential part of the parties'
property settlement agreement and, alternatively, that the
court mod.ified the agreement's support provisions without a
finding of substantial change in circumstances.               Wayne, as
respondent, argues that the court's order did not amount to
an actual modificatj-on of his support obligations and that,
in any event, there was substantial credible evidence to
support the court's conclusion.


                                      I
     The property disposition provisions of a dissolution
decree may only be modified where the parties give their
written consent or where the agreement is subject to rescis-
sion or modification under the general laws governing all
contracts.       Section 40-4-208 (3), VCA.          In Washington v.
Washington      (1973),   162 Mont.       349, 512 P.2d   1300, we held
that, where month1.y payments are intended to be part of a
property settlement, the payments are not subject to modifi-
cation as maintenance.
     The escalation clause at issue specifically provides
for cost of living increases in "maintenance and child sup-
port" payments.           The maintenance and support provisions,
themselves, are clearly separate from those governing the
distribution of the couple's real- and personal property.
Maintenance payments terminated upon Sheryle'~ remarriage.
We need only answer the question of whether the support
provisions are intended as part of a pr0pert.y settlement. In
Richardson I, Sheryle argued that the child support provision
was not an integral part of the property                  settlement and
accordingly was subject to modification upon a showing of
change in circumstances.          We will not now hold to the con-
trary   in respect to the escalation clause governing the
amount of child support.
        The   support    provision      and   accompanying    escalation
clause were intended to provide ongoing, adequate support for
the Richardson children.          See Richerdson, 658 P. 2d at 400.
They were not intended as time payments of a total fixed
amount made in exchange for Shervle's ownership interest in
marital property.       Compare Washington, 512 P.2d at 1302-1303,
(finding "alimony" payments of $750 per month for nine years
to be an inseparable part of a property settlement where
neither the wife's remarriage nor the husband's death termi-
nated the obligation undertaken by the husband in exchange
for the wife's interest in corporate assets).
        In response to appellant's first contentions, we hold
that the child support provisions and escalation clause were
not part of a property settlement and accordingly were sub-
ject to modification by the District Court.


                                   I1
        Appellant is, however, correct in her second conten-
tion; the terms of a support agreement may not be modified
without a finding that substantial changes make the terms
unconscionable.     The child support provisions of a dissolu-
tion decree may not be retroactively modified.             They may only
be prospecti~rely modified by written consent of the parties
or upon a showing that changed circumstances make the terms
unconscionable.         Section   40-4-308    (1),   (2)(b), MCA.      The
escalation    clause     is   clearly     a   provision    "relating   to
maintenance or support" and, as such, is subject to modifica-
tion under the terms of section 40-4-208, MCA.
       The trial court, in its original order, found that the
increased obligation placed no unreasonable burden on Wa.yne.
The court based. its final order on its conclusion that it
"equitably should   have" adjusted the base month when      it
amended the amount of support.     Sheryle argues that, since
there was no evidence of unconscionabil.ity, the court was
without power to modifv the terms of the decree.         Wayne
argues that the court's intimation, that failure to adjust
the base month was inequitahle, adequately approximates the
modification provision's "unconscionable."
       The question of unconscionability is only relevant to
prospective modifications.    Use of the amended amount of
support in the original calculation creates an impermissible
retroactive modification of support.      Section 40-4-208(l),
MCA.   To the extent that cost of living increases are attrib-
utah1.e to the court-ordered increase in support payments,
March 1982--the date of the amended award--must be used as
the base month of calculation.
       The escalation clause at issue provides that the calcu-
lation of increase be ma.de as follows:
            "The Consumer Price Index for the month
            of February, 1979, shall be subtracted
            from the Consumer Price Index for the
            month immediately preceding the month in
            which the increase of child support and
            maintenance is ca 1.culated (November)   .
            The resulting increase in Consumer Price
            Index points shall be divided by the
            Consumer Price Index for the month of
            February, 1979, and the result obtained
            shall be the percentage increase in the
            Consumer Price Index.    This percentage
            increase in the Consumer Price Index
            shall be multiplied by the factor of .75
            and the result obtained shall be the
            percentage by which maintenance and child
            support provided in the preceding two
             paragraphs shall be          increased     for the
             succeeding year."
       The Richardsons' agreement and decree provided for $100
per month support for each of the five Richardson children
and $500 per month maintenance payment.           Wayne's total obli-
gation in the base year amounted to $1,000 per month.               Main-
tenance payments       terminated   in    1981.    By    1981, Wayne's
maintenance payments had been increased, by the terms of the
agreement, to $629 per month.       The court-ordered "increase in
child support [from $100 to $225 per child, per month, was]
approximately equivalent to the maintenance payments lost due
to the remarriage."      Richardson, 658 P.2d at 399.        The addi-
tional $125 per month, per child, yielded a total of $625--a
sum nearly equal to the after escalation, 1981 monthly main-
tenance obligation.
       In order to comply with Sheryle's proposed interpreta-
tion of the terms of the escalation provision, the full $225
support amount would have to be plugged into the calculation.
The   result is a prohibited        retroactive use of        the    1983
court-ordered $125 increase.        " [A] decree may be modified by
a court as to     ...    support only as to installments accruing
subsequent   to    the    motion    for   modification."          Section
40-4-208 (1) , MCA.      Since the modification crder took into
account the 1978 through 1981 cost of living adjustments to
maintenance payments, the calculation also results in twice
indexing the portion of the support amount attributable to
the   1982 recharacterization of          the maintenance payments.
       If we adopt Wayne's selection of base dates, a prospec-
tive modification is achieved without a finding that substan-
tial changes in circumstances make the terms of the decree
unconscionable.       Where the trial court expressly found that
the support obligation placed no undue burden on Wayne's
resources, we cannot accept Wayne's contention that equitable
considerations amount       to    a    finding of unconscionability.
       The present value of the original $100 support amount,
indexed from February 1979 j s $134.77.
                            .                       If the March 1981.
date is used, the present per child support obligation is
reduced to $105.30 per moiith.              While the reduction is a
permissible, prospective modification, the trial court was
without power to order the modification without a finding of
changed circumstances.
       In   Richardson I, we          zffirmed an   increase      in child
support intended to replace the 1981 value of payments char-
acterized as maintenance but intended, jn fact, as support.
Although we did not expressly address the question of correct
base date for indexing, the clear intent of our decision was
that the Richardson children continue to receive the support
amount provided them by their parents' agreement.              See Rich-
ardson, 658 P . ? d   at 339-400.      Our ea-rlier opinion recognized
that Wayne's 1981 support per child obligation had increased
to $126 per month.         The ordered increase was intended to
replace the terminated maintenance and provide an additional
$125 per month.        We now make explicit what was implicit in
our prior holding: the original $100 amount is to be sepa-
rately indexed from the date originally chosen by the par-
ties, February 1979; the $125 increase is to be indexed from
the month in which the increase was ordered, March 1982.               [As
noted above, when        the maintenance amount was, in effect,
converted to child support, the 1979-1981 cost of living
adjustment was        already    included    in   the   ordered    support
amount. I
          In    order     to     avoid     either       prospective         or      retroactive

modification of            the    s u p p o r t award,        present     and f u t u r e pay-

m e n t s s h a l l b e c a l c u l a t e d i n t h e f o l l o a r i n g manner:

          (1)     The F e b r u a r y 1.979 CPT s h a l l b e u s e d t o c a l - c u l a t e

the    cost     of    living       increase        on   the     original         $100   support

amount.

          (2)     The March 1981 C P I s h a l l b e u s e d t o c a l c u l a t e t h e

i n c r e a s e on a n a d d i t i o n a l $125.

          (3)     The sum of t h e t w o i s t h e amount d u e p e r month p e r

child.

         The     calculation            yields     a    per    chl1.d     monthly       support

payment o f $260 f o r 1983 and $ 1 6 6 f o r 1984.                       (The f j - q u r e s a r e

b a s e d on C P I s o f       207.1.    f o r February         1979,     283.1      f o r March

1982, 293.6          f o r November 1 9 8 2 , and 303.1 f o r November 1 9 8 3 . )

         The     cause      is    remanded       for     proceedings         in      accordance

with     this     opinion.          Each     party      will     bear     his or        her    own

costs.




                                                         Chief J u s t i c e        -          I




W e concur:
