                              No.    95-165
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1995

IN RE THE MARRIAGE OF
BARBARA BALL,
           Petitioner and Respondent,
     and
LUCIEN C. BALL,
           Respondent and Appellant.




APPEAL FROM:      District Court of the Thirteenth Judicial District,
                  In and for the County of Stillwater,
                  The Honorable Robert Holmstrom, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
                  Gerald J. Neely, Billings, Montana
           For Respondent:
                  Kevin T.   Sweeney,      Sweeney    & Healow,   Billings,
                  Montana


                                    Submitted on Briefs:        July 6, 1995
                                                     Decided:   September 14; 1995
Filed:
Justice William E. Hunt, Sr., delivered the Opinion of the Court.


     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1995 Internal Operating Rules, the following decision shall not be

cited as precedent and shall be published by its filing as a public

document with the Clerk of this Court and by a report of its result

to State Reporter Publishing Company and West Publishing Company.

     In    July    1993,   respondent       instituted     proceedings   in   the

Thirteenth Judicial District Court, Yellowstone County, to enforce

a court order requiring appellant to contribute $200.00 per month

towards the support of their adult disabled child.               Appellant then

moved the court for a modification of the divorce decree and a

reduction in the amount of support he is required to pay, claiming

a change in circumstances substantial enough to make the terms of

the decree unconscionable.       Both matters were addressed at trial,

after which the court found appellant to be in contempt for non-

payment of support, and denied appellant's motion for modification

of the divorce decree.       We affirm.

     We consider the following issues raised on appeal:

     1.        Did the District Court err in applying the standards set
forth in   §    40-4-208(2) (b), MCA, to a default divorce decree which

provides for the support of an adult disabled child?

     2.        Did the District Court err in failing to find a change in

circumstances      substantial   enough      to   render   the   existing   child

support arrangements unconscionable?




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        3.    Did the District Court err ln its refusal to deduct from

the unpaid support obligation $1,580.00 that was sent to respondent

by appellant?

        Appellant and respondent were divorced in 1986.                           During their

marriage, they had three children, all of whom were over the age of

21 at the time of the divorce.                 The oldest child, however, was and

is entirely disabled due to profound retardation.                             This child, who

is now 34, remains dependent upon his parents for his support and

care.

        Appellant did not appear in the 1986 divorce action,                              and a

default judgment was entered against him.                          The divorce decree gave

custody      of   the    adult      disabled           son    to   respondent     and    ordered

appellant     to pay her $200.00 per month for the disabled son's

support.          In    July   of    1992,     appellant           purchased      respondent's

interest in the family residence, but respondent conditioned her

signing of a quit-claim deed upon appellant's also tendering the

entirety of then-delinquent child support.                            Appellant thereafter

paid respondent $5,800.00 for the claimed delinquent child support,

and respondent executed the quit-claim deed in his favor.

        From the time this lump sum payment was made until the date
the     District       Court   entered       its       1994    judgment      in   this   matter,

appellant again failed to pay child support to respondent.                               Because

of his continued non-payment,                 respondent moved the court to find

him     in   contempt      pursuant      to    §       40-5-601,      MCA.        In   response,

appellant moved to modify the dissolution decree, asking the court

to reduce his support obligation from $200.00 to $50.00 per month.


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The District Court found appellant had failed to show a change in

circumstances so substantial as to make the support arrangements

unconscionable,             and   therefore      declined       to    modify     the    existing

decree.        The court also found appellant to be in contempt because

of his failure to comply with the dictates of the decree.

                                            Issue 1

           Did the District Court err in applying the standards set forth

in     §    40-4-208 (2) (b),      MCA,     to     a    default      divorce    decree       which

provides for the support of an adult disabled child?

           Appellant first alleges that                 §   40-4-208 (2) (b) , MCA,         is not

applicable        to    a    default      decree       ordering      support    for    an    adult

disabled        child,      but    that    the       statute     applies       only    to    minor

children.        Since this statute does not explicitly mention adult

disabled children, appellant insists that it is inapplicable, and

therefore the District Court "can examine the entire situation de

novo, and if this is done, the district court's abuse of discretion

is apparent."

           Appellant raises this issue for the first time on appeal. This

Court will not address an issue that was not raised at the trial

court level.           In re Marriage of Blair (1995), 894 p.2d 958, 963, 52

St.Rep. 401, 404; In re Marriage of Binsfield (1995), 888 P.2d 889,

893,       52 St.Rep. 16, 20.          We note in passing,              however,       that this

same statute was the sole basis for appellant's motion to modify

the support decree.               His attack upon it now is disingenuous at

best.




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                                  Issue 2

     Did the District Court err in failing to find a change in

circumstances     substantial   enough     to     render    the    existing    child

support arrangements unconscionable?

     Existing     support   arrangements        may be     modified only       under

certain   specific    circumstances.        Section        40-4-208 (2) (b),    MCA,

provides as follows:

          (b)  Whenever the decree proposed for modification
     contains provisions relating to maintenance or support,
     modification.    . may only be made:
          (i)  upon a showing of changed circumstances so
     substantial and continuous as to make the terms
     unconscionable;
          (ii) upon written consent of the parties; or
          (iii) upon application by the department of social
     and rehabilitative services .

Whether circumstances have changed so substantially as to render a

support decree unconscionable is a question of fact.                      This Court

will review a district court's findings of fact to determine if

they are clearly erroneous.       In re Marriage of Kovash (1995), 893

P.2d 860, 862-63, 52 St.Rep. 280, 281.

     Appellant    alleged at    trial      that    his   income     has    decreased

precipitously since the 1986 divorce, while respondent's income has

increased.
     A major obstacle faced by the trial court was the fact that
the income of the respective parties was not determined at the time

of the divorce.      Both parties acknowledge that respondent was then

earning approximately two-thirds of the family's income, but both

also agree that appellant,       by his own choice,               was not working

regularly at     that time.     Without more information on what his


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income was (or could have been, had he worked steadily), the trial

court faced a difficult task in attempting to determine whether his

income had declined substantially.

       Regardless of whether appellant's circumstances had changed or

not,    the     trial   court     found   the    support   agreement   was    not

unconscionable.         The court acknowledged that         appellant's usual

income is only $675.00 per month.               However, the court found that

appellant was capable of working but that he had not attempted to

find work.       The court further found appellant had received over

$1,000.00 in interest income the previous year, and the house owned

by appellant had a basis for depreciation of $200,000.             Considering

all    these   facts,   the court ruled it was not unconscionable to

require appellant to contribute $200.00 each month towards the care

of his son.

        The information regarding appellant's income came from his

1993    income    tax   return.     Appellant's     ability to work and       his

failure to seek work were established by his own testimony.                  This

decision of the trial court was not clearly erroneous.

       Appellant makes much of the fact that respondent earns more

money than he does, and her income has in fact increased somewhat

in the last nine years.         However, such increases can be credited to

her having found and kept a secure job in Texas.               Both before and

after the divorce, respondent has worked steadily while appellant

has not.       Respondent also has sole responsibility for the care of

the adult disabled son, who lives with her and who incurs expenses

beyond those which would be generated by a healthy minor child.


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Her     changes    in    circumstances      do      not    make    appellant's      support

obligation        unconscidnable;        on        the     contrary,        it   would     be

unconscionable to reward respondent's responsibility by expecting

her to shoulder appellant's burden as well as her own.                            The trial

court     found    that     the   existing          support       arrangement      was    not

unconscionable, and this finding is not clearly erroneous.

                                       Issue 3

        Did the District Court err in its refusal to deduct from the

unpaid support obligation $1,580.00 that was sent to respondent by

appellant?

        From December of 1990 through June of 1992, appellant sent

nine checks to respondent,            totalling $1,530.00                  In addition,    he

sent her a        money order in the              amount of       $50.00    after she had

commenced the action for contempt.

        The   parties      disagree    on         how     the     $1,530.00      should    be

characterized;          appellant claims the checks were for child support,

while respondent claims they were gifts, given in an attempt to win

her back.     The characterization of the checks is important because

if they are child support,             then appellant must be credited as

having paid that amount.           If the checks are gifts, however, they

cannot be considered as payment of an obligation arising from a

divorce decree.         Delaney v. Delaney (1981), 195 Mont. 259, 635 P.2d
1306.     At trial, the District Court had the opportunity to listen

to testimony of each party and observe their behavior and demeanor

and it concluded the checks were gifts.




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        .,


     Appellant also tendered a $50.00 money order to respondent

specifically for child support after this action was commenced.

Respondent viewed this as part of appellant's attempt to reduce the

monthly support from $200.00 to $50.00, and feared her acceptance

of the money order might be viewed as acceptance of a      support

reduction in general.   She therefore returned the money order to

appellant.

     We hold that the District Court's findings as to the gifts and

the money order are not clearly erroneous and should be affirmed.

     Affirmed.




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