                                          No.    84-530

               I N THE SUPREME COURT O F T H E S T A T E O F MONTANA

                                                1985




I N RE THE CUSTODY AND SUPPORT O F
H . Q. a n d T . Q .




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 i c t ,
                 I n a n d 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 R . D. K c P h i l l i p s , Judge p r e s i d i n g .



COUNSEL O F RECORD:


         For Appellant:

                 J a r d i n e , S t e p h e n s o n , B l e w e t t & Weaver; K .     Dale
                 Schwanke, G r e a t F a l l s , Montana


         For Respondent:

                 Clary     & Clary;       Thomas C l a r y , G r e a t F a l l s , Montana




                                                S u b m i t t e d o n briefs: Aug.         15, 1985
                                                                   Decided:        O c t o b e r 2 4 , 1985



Filed:   OCT 2419%'


                                                                        P
                                      f C l emk
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M. J u s t i c e
 r                      L.C.    Gulbrandson           delivered        the    Opinion        of   the
Court.


         The       father,          appellant,        appeals      from      an    order     of   the

District          Court        of     the    Eighth       Judicial        District,          Cascade

County,          denying        his     requests          for     modification          of     child

custody          and    reduction           of    child      support        obligations.            We

affirm.

         The f a t h e r and m o t h e r            ( a l s o r e f e r r e d t o a s respondent)

joined      i n a p r o p e r t y s e t t l e m e n t and c h i l d c u s t o d y a g r e e m e n t

at    the    time        their       divorce        decree      was    entered       without        an

a d v e r s a r y h e a r i n g on May 2 7 ,          1982.       The a g r e e m e n t p r o v i d e d

t h e p a r t i e s would have j o i n t c u s t o d y o f H.Q.               and T.Q.,        their

minor c h i l d r e n , w i t h t h e m o t h e r t o h a v e r e s i d e n t i a l c u s t o d y .

The c h i l d r e n would b e w i t h t h e i r f a t h e r o n e n i g h t e a c h week,

every       other       weekend,            and     two   months       each       summer.         The

agreement          contained          provisions          about       the    required         notice

prior       to    visits        during        the    week,      the    mother's       visitation

d u r i n g t h e summer, h o l i d a y v i s i t a t i o n s , and an a l t e r n a t e p l a n

if    either       parent           should       leave    Great    Falls,         Montana.        The

f a t h e r a g r e e d , and was o r d e r e d , t o p a y c h i l d s u p p o r t o f $ 2 0 0

p e r month p e r c h i l d u n t i l December                  1982, a t which t i m e t h e

s u p p o r t would i n c r e a s e t o $ 2 5 0 p e r month p e r c h i l d .

         The f a t h e r l o s t h i s j o b a b o u t November 1982 and d e c i d e d

t o e s t a b l i s h h i s own b u s i n e s s .           H e c o n t a c t e d t h e mother t o

arrange a d e f e r r a l of            c h i l d s u p p o r t and s h e a g r e e d t o g i v e

him    some       time    t o make          the     payments.         However,       they     never

reached       an       agreement       on     the    amount       t o be     deferred        or   the

period of t i m e involved.                   I n March 1983, t h e m o t h e r l e v i e d on

the     father's         bank         accounts        for     past     due        amounts.         He
responded           by       requesting             modification               of     his         support

o b l i g a t i o n and v i s i t a t i o n p r i v i l e g e s .

          The     f a t h e r c o n t i n u e d t o be d e l i n q u e n t          i n h i s support

payments.              In      June      1983,       the     mother           initiated          contempt

proceedings           and      requested           attorneyfs            fees       and     the     father

requested exclusive custody of t h e children.

          Over      t h e course of            h e a r i n g s i n August,            September and

O c t o b e r 1 9 8 3 , b o t h t h e p a r t i e s and t h e i r w i t n e s s e s t e s t i f i e d

about t h e p a r e n t s f d i f f i c u l t i e s with each o t h e r .                    The f a t h e r

contended          that      the      mother        drank     to        excess,      neglected           the

children,         and p e r s i s t e n t l y v i o l a t e d t h e s p i r i t and i n t e n t o f

the     custody        provisions             in    their     agreement.              He       testified

that,      in    a d d i t i o n t o a r e d u c t i o n of         income, h i s a b i l i t y t o

pay    child       s u p p o r t had      s u b s t a n t i a l l y changed b e c a u s e h e had

three      new      dependents;           a    new w i f e ,        a    son    from        an    earlier

m a r r i a g e , and a new baby.                  The m o t h e r produced e v i d e n c e t h a t

he had more t h a n a d e q u a t e e a r n i n g s t o pay c h i l d                        support i n

the      first         half        of     1983        and      testified             that         he    was

uncooperative,              inconsiderate             and     not       prompt       on      visitation

schedules.               Each       parent          testified,           and        had      their       own

witnesses         testify,         about       several       s p e c i f i c i n s t a n c e s of        the

other      parent's         wrongdoing             and     about        his    or     her        own    good

parenting s k i l l s .

          In    its order           filed      June      1, 1 9 8 4 ,      t h e District              Court

found t h a t n e i t h e r p a r e n t was u n f i t a l t h o u g h e a c h a t t e m p t e d

t o use      the children               t o aggravate t h e other.                        The D i s t r i c t

C o u r t a l s o found t h a t t h e c u s t o d y a r r a n g e m e n t a g r e e d on by

t h e p a r e n t s remained a d e q u a t e and i n t h e b e s t i n t e r e s t s o f

the     children         and    t h e r e was no showing t h a t                    the      children's
p r e s e n t e n v i r o n m e n t e n d a n g e r e d t h e i r p h y s i c a 1, mora 1 , menta 1

o r emotional health.               The f a t h e r was found t o have s u f f i c i e n t

income t o pay a l l p a s t c h i l d s u p p o r t and t o c o n t i n u e p a y i n g

the     agreed        amount.            The         court     concluded       that,       under

S 40-4-219,          MCA,    no m o d i f i c a t i o n   of   t h e c u s t o d y d e c r e e was

appropriate.           The o r d e r s t a t e d t h a t a l l b a c k s u p p o r t payments

should      be      made    within       thirty        days.        The    order      required

s p e c i f i c b e h a v i o r o f e a c h p a r t y and s t a t e d t h e c o n s e q u e n c e s

f o r any f a i l u r e t o f o l l o w t h e o r d e r .

         The f a t h e r r a i s e s two i s s u e s on a p p e a l :

          (1) Whether t h e D i s t r i c t C o u r t a b u s e d i t s d i s c r e t i o n

i n f a i l i n g t o g r a n t h i s m o t i o n t o modify c h i l d c u s t o d y ?

          (2)      Whether t h e D i s t r i c t C o u r t a b u s e d      its discretion

by d e n y i n g h i s motion t o modify h i s c h i l d s u p p o r t o b l i g a t i o n ?

         This Court w i l l           not reverse a determination of                       child

c u s t o d y a b s e n t an a b u s e o f d i s c r e t i o n by t h e d i s t r i c t c o u r t .

Gilmore       v.     Gilmore       (1975),        166     Mont.     47,     530    P.2d      480.

S e c t i o n 40-4-219,      MCA p r o v i d e s :

                  (1) The c o u r t may i n i t s d i s c r e t i o n
                 modify a p r i o r c u s t o d y d e c r e e i f it
                 f i n d s , upon t h e b a s i s o f f a c t s t h a t have
                 arisen s i n c e the p r i o r decree o r t h a t
                 w e r e unknown t o t h e c o u r t a t t h e t i m e o f
                 e n t r y o f t h e p r i o r d e c r e e , t h a t a change
                 has occurred i n t h e circumstances of t h e
                 c h i l d o r h i s c u s t o d i a n and t h a t t h e
                 modification is necessary t o serve t h e
                 b e s t i n t e r e s t o f t h e c h i l d and i f it
                 further finds that:



                  fc) the            child 's      present       environment
                 endangers s e r i o u s l y h i s p h y s i c a l , mental,
                 m o r a l , o r e m o t i o n a l h e a l t h and t h e harm
                 l i k e l y t o b e c a u s e d by a c h a n g e o f
                 environment             is       outweighed        by    its
                 a d v a n t a g e s t o him;   ...
In order to prevent recurring litigation, S 40-1-219, MCA
"places a heavy burden on the person seeking to modify a
prior custody decree."            Groves v. Groves (1977), 173 Mont.
291, 298, 567 P.2d 459, 463.
       The District Court received evidence regarding conduct
that occurred prior to the decree and on facts which arose
after the initial decree.              This included evidence on changes
in the lives of both parents.             The District Court listened to

lengthy      and   conflicting      testimony       about     the     children's
present environment.            No abuse of discretion occurred when
the District Court found no endangerment to the children in
their present environment.              Our review of the record shows
substantial evidence to support the decision.
       The father also challenges the District Court's refusal
to lower his child support obligation.                      Section 40-4-208,
MCA, allows modification           of     support for installments due
after the request "upon a showing of changed circumstances so
substantial        and    continuinq        as    to        make    the   terms
unconscionable      ..."        In Hughes v. Hughes (Mont. 1983), 666
P.2d   739, 741, 40 St.Rep. 1102, 1105, we reversed a district
court's modification of child support and remanded for a
determination of the continuing nature of the change in the
father's circumstances.            The father in Hughes requested a
reduction of support payments on the grounds that his job had
terminated, he was unemployed               and   consequently he         had   a

reduction     of   income.        He    started   his       own    business   and
anticipated that it would take three to six months to rebuild
it.     We    stated     that    the    reduction      in    income    for this
relatively short period of time was not so continuinq as to
make the original agreement unconscionable.    In the case at
bar, the District Court found that despite the father's job
loss he had    sufficient current income to make the agreed
payments.    This is consistent with the statements in Hughes,
that a temporary reduction of income is not a continuing
change so as to make prior terms on support unconscionable.
We hold that the District Court did not abuse its discretion
by refusing to lower the father's child support obligation.
                                                    R
      Affirmed.                                 ,
                                                '
                                                ,
                                                    ;'
                                               ,*




We concur:
