                               NO. 8 9 - 2 4 6

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                    1989



IN RE THE MARRIAGE OF:
SHARLENE H. GUCKEEN,
                Petitioner and Respondent,
         and
TERRY H. GUCKEEN,
                 Respondent and Appellant.




APPEAL FROM:    District Court of the Eighth Judicial District
                In and for the County of Cascade
                The Honorable Thomas M. McKittrick, Judge presiding.
COUNSEL OF RECORD:
         For Appellant:
                 Howard F. Strause, Great Falls, Montana

         For Respondent:
                 James D. Elshoff, Great Falls, Montana


                                    Submitted on Briefs: October 25, 1 9 8 9
                                       Decided: December 1, 1 9 8 9
                                            HT
                                             -

Filed:




FILE
 DEC 1. 4989
      .
Justice John Conway Harrison delivered the Opinion of the
Court.

      Terry Guckeen appeals a judgment of the District Court
of the Eighth Judicial District, Cascade County, Montana.
The District Court ordered appellant to pay respondent
Sharlene Guckeen $17,700 in back child support representing
118 months at $150/month. We reverse the judgment and remand
to the District Court for a rehearing.
      Appellant presents a single issue for review.
      Did the District Court err in declining to exercise its
equitable powers when the parties have orally and in writinq
altered the terms of a sixteen-year-old divorce decree?
      Terry and Sharlene Guckeen were divorced on March 6,
1972.   The divorce decree awarded custody of the couple's
three minor children to Sharlene and ordered Terry to pay
$150 per month in child support. (One of these children died
in 1974.)   Almost immediately after the divorce, Terry and
Sharlene began living together and continued to live together
until January of 1978.      The parties stipulated that no
support payments are due prior to July, 1978.
      After the divorce, Terry and Sharlene had two more
children: Brian, born December 18, 1974 and Brandon, born
February 18, 1979. Except for a short period of time, Brian
has always lived with his father and Brandon has always lived
with his mother. No custody or support order has ever been
sought with regard to these two children and neither Terry
nor Sharlene has paid to or requested support from the other
with regard to these two children.
      On January 26, 1978, Terry and Sharlene entered into a
written agreement that gave custody of the children mentioned
in the divorce decree to Terry. The agreement also provided
that Terry would never collect any child support payme~ts
from Sharlene.
      In spite of the written agreement giving custody of the
children to Terry, the parties made an oral agreement that
the children could live with whichever parent they wished.
Pursuant to that oral agreement, the children mentioned in
the divorce decree have spent roughly equal time with each
parent.  Terry has made no support payments to Sharlene and
Sharlene has not requested any support payments. Terry did
make child support payments to the State of California
through Cascade County when California sought recovery for
Aid to Families of Dependent Children payments. The youngest
child mentioned in the divorce decree reached majority on
October 21, 1987.
      On June 26, 1985, Sharlene filed a motion requesting a
judgment against Terry for past due child support. A hearing
was finally held on June 6, 1988.     Rased on the change in
custody arrangements after the divorce decree, Terry sought
to invoke the District Court's equitable powers to estop
Sharlene's claim for back child support. In its February 16,
1989 Conclusions of Law, the District Court found that Terry
had not done equity because he had not paid any support for
his four children in the past sixteen years. Therefore the
District Court held that Terry had attempted to invoke the
District Court's equity power with unclea-n hands and the
District Court declined to exercise its equitable powers.
      Appellant argues that the District Court should have
granted him equitable relief because of this Court's
decisions in the following five cases: State ex rel.
Blakeslee v. Horton (1986), 222 Mont. 351, 722 P.2d 1148; In
re the Marriage of Cook (1986), 223 Mont. 293, 725 P.2d 562;
In re the Marriage of Jensen (1986), 223 Mont. 434, 727 P.2d
512; In re the Marriage of Sabo (1986), 224 Mont. 252, 730
P.2d 1112; and In re the Marriage of Ryan (Mont. 1989), 778
P.2d 1389, 46 St.Rep. 1543.   We agree.
      The above-mentioned cases illustrate the equitable
exception to the general rule that child support payments
cannot be modified retroactively. Marriage of Ryan, 778 P.2d
at 1390. The equitable exception arises when the parties by
consent and conduct alter the terms of the original decree.
Marriage of Sabo, 730 P.2d at 1114. In the instant case, the
parties by consent and conduct altered the terms of the
original decree.     Terry had residential custody of and
totally supported the children mentioned in the divorce
decree approximately half of the time until they reached
majority.
      Where the parties have altered the original custody
arrangements, equity functions to reconcile reasonable child
support with actual residential custody. The above-mentioned
cases clearly articulate the guidelines to be used in this
reconciliation.
      We reverse the judgment and remand to the District
Court for rehearinq consistent with this opinion.




We concur:




&
&
Justices
                                           No.    89-246

               I N THE SUPREME COURT OF THE STATE OF MONTANA

                                                 1989



I N RE THE MARRIAGE OF:

TERRY H.   GUCKEEN,

                 P l a i n t i f f and A p p e l l a n t ,

         and

SHARLENE GUCKEEN,

                 R e s p o n d e n t and R e s p o n d e n t .
                                                                                          m r-:   w
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                                                                                          0       W
                                                                                          C       W
APPEAL FROM:     D i s t r i c t C o u r t of t h e E i g h t h J u d i c i a l D i s t r e t
                 I n and f o r t h e C o u n t y of C a s c a d e
                 T h e H o n o r a b l e T h o m a s M . M c K i t t r i c k , Judge p r e s i d i n g .

COUNSEL O F RECORD:

         For Appellant:

                 Howard F.        S t r a u s e , G r e a t F a l l s , Montana

         F o r Respondent:

                 J a m e s D. E l s h o f f , G r e a t F a l l s , Montana


                                                 S u b m i t t e d on B r i e f s :   October 25, 1989

                                                    Decided:         D e c e m b e r 1, 1 9 8 9


Filed:
