                            No.    92-217

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1992



IN RE THE MARRIAGE OF
JERRY A. HOWARD,
          petitioner and Appellant,
    and
DEBBE A. GLIDDEN, formerly known as
DEBBE A. HOWARD,
          Respondent and Respondent.




APPEAL FROM:   District Court of the Eleventh Judicial District,
               In and for the County of Flathead,
               The Honorable Michael H. Keedy, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               H. James Oleson, Oleson Law Firm, Kalispell, Montana
          For Respondent:
               Bruce McEvoy, Warden, Christiansen, Johnson     &   Berg,
               Kalispell, Montana



                                Submitted on Briefs:   August 13, 1992
                                            ~ ~ ~ i d October 29, 1992
                                                       ~ d :
Filed:


                            B
                                  Clerk
Justice Fred J. Weber delivered the Opinion of the Court.

     After a hearing, the District Court for the Eleventh Judicial
District,    Flathead   County, modified   the   original   decree   of
dissolution and ordered that the amount of child support owing to
Debbe A. Glidden (Ms. Glidden) by Jerry Howard (Mr. Howard) be
increased from $300 per month to $1,172.50 per month, retroactive
to December 1, 1990.    He appeals. We affirm in part and reverse in
part.
        The issues for our consideration are:
        1.   Did the District Court err in increasing Mr. Howard's
child support obligation from $300 per month to $1,172.50            per
month?
        2.   Did the District Court err in failing to deduct support
payments allegedly made by Mr. Howard to his mother in arriving at
the correct modified child support obligation?
        3.   Did the District Court err in modifying Mr. Howard's
child support obligation effective December, 1990?
        4.   Did the District Court err in granting Ms. Glidden
attorney fees?
        Jerry and Debbe Howard were divorced on August       9,   1982,

pursuant to a decree of dissolution entered by the Eleventh
Judicial District Court, Flathead County, Montana.      In accordance
with the terms of a custody and property settlement agreement, Ms.
Glidden was awarded custody of the parties' two minor children, and
Mr. Howard was ordered to pay a total amount of $300 per month in
child support.
                                   2
     In December of 1990, when both parties were residing in the
State of Washington, Mr.    Howard   received a letter    from Ms.
Glidden's counsel requesting child support modification.          On
February 12, 1991, Ms. Glidden filed a petition in a superior court
of the State of Washington for modification of child support.
Copies of the petition and summons were served on Mr. Howard's
current spouse at his home in Washington on February 17, 1991.   Mr.
Howard challenged the petition on jurisdictional grounds and the
motion was ultimately dismissed for insufficiency of process.
     Subsequently, Ms. Glidden filed a motion to modify child
support in the Flathead County District Court on August 15, 1991.
Again Mr. Howard challenged the petition on jurisdictional grounds.
The District Court denied his motion.
     After a hearing, the District Court ordered that Mr. Howard
should pay $1,172.50 per month for child support, retroactively
from and including December of 1990, allowing a credit for the $300
per month which Mr. Howard had already paid.    The District Court
further ordered Mr. Howard to pay Ms. Glidden's reasonable attorney
fees and costs incurred as a result of bringing the motion to
modify.   Mr. Howard appeals.
                                 I
     Did the District Court err in increasing Mr. Howard's child
support obligation from $300 per month to $1,172.50 per month?
     Mr. Howard maintains that such an enormous increase in child
support payments is per se unconscionable.   Ms. Glidden maintains
that the District Court properly applied the Montana Child Support
Regulations and Guidelines and that Mr. Howard has failed to prove
otherwise.
    Mr.     Howard   cites no authority           for his argument that a
substantial increase in child support is per se unconscionable.
Furthermore, he does not specify any error in the District Court's
findings, only in its conclusion increasing the child support. The
District Court made extensive and particular findings regarding the
income    of   the   parties     and    their     respective     child   support
obligations.     Absent a clear abuse of discretion, the District
Court will not be overruled.            Marriage of Graveley (1990), 244
Mont. 137, 139, 796 P.2d 585, 586.
     We conclude the District Court did not abuse its discretion.
We hold that the court did not err in increasing Mr. Howard's child
support obligation from $300 per month to $1,172.50 per month.
                                        II
     Did the District Court err in failing to deduct support
payments allegedly made by Mr. Howard to his mother in arriving at
the correct modified child support obligation?
     The District Court found:
     15. Petitioner claims he should be allowed to deduct,
     for child support purposes, $15,148.58 he pays annually
     for the Kalispell residence, a vehicle, insurance, and
     approximately $225.00 per month to his mother for her
     support.   The Regulations do not provide for such a
     deduction.
     Mr. Howard maintains he is bound by law to provide for his
indigent mother, citing          5   40-6-301, MCA,        as authority.      It
provides:
     Duty o f c h i l d t o support i n d i g e n t parents.   It is hereby
                                         4
    declared and made the duty of every adult child, having
    the ability so to do, to furnish and provide necessary
    food, clothing, shelter, and medical attendance for his
    indigent parent or parents, unless, in the judgment of
    the court or jury, he is excused therefrom by reason of
    intemperance, indolence, immorality, or profligacy of
    such parent.
The record contains no evidence that Mr.                Howard's mother is
indigent.      Absent such proof, the District Court is not bound to
consider the support of his mother as a legal duty which might be
considered as an expense in calculating child support. We hold the
District Court correctly refused to deduct support payments Mr.
Howard made to his mother in arriving at the modified                child
support obligation.
                                           I11
     Did the District Court err in modifying Mr. Howard's child
support obligation effective December, 1990?
    Mr. Howard maintains the District Court erred in ordering the
increased child support obligation to be retroactive to December,
1990. The court found that to be the date Mr. Howard "became aware
of [Ms. Glidden's] legal proceeding to modify the supportu. Mr.
Howard maintains that a child support obligation may only be made
retroactive to the date the motion to modify child support was
filed.   We agree.
     Section 4 0 - 4 - 2 0 8 ( 1 ) ,   MCA, provides:
     [A] decree may be modified by a court as to maintenance
     or support only as to installments accruing subsequent to
     actual notice to the parties of the motion for
     modification. (Emphasis added).
Ms. Glidden filed her motion for modification in the District Court
in Montana on August 15, 1991, and Mr. Howard was properly served.
                                             5
The District Court concluded that the notice given to Mr. Howard
under the filing in the superior court in Washington, constituted

notice under the statute.      We conclude that is not appropriate
under the specific wording of the statute, We conclude that under
the statute the right to the modified child support accrued on the
date actual notice was given of the motion for modification in the
Montana proceedings.
     We conclude the District Court erred in ordering the increased
child support obligation to be retroactive to December 1990.        We

hold that the modified child support shall be retroactive only to
August 15, 1991.
                                  IV
        Did the District Court err in granting Ms. Glidden attorney
fees?

        The District Court ordered Mr.     Howard to pay     $1,978 in

attorney fees as a result of her motion to modify.          Mr. Howard
maintains     that ordering him   to pay    fees   is a    "substantial
injusti~e'~.
        Ms. Glidden correctly cites 5 40-4-110, MCA, as authority for

the court ordering Mr. Howard to pay attorney fees. We also point
out that as the District Court noted in its order, Mr. Howard
failed to object to the finding that Ms. Glidden should recover
attorney fees or to the reasonableness of such fees.         It is well
settled law that a party may not raise an issue, not raised in the
District Court, for the first time on appeal.       We    hold that the
District Court did not err in granting Ms. Glidden attorney fees.
     The judgment of the District    Court   is affirmed with the

exception that an appropriate order shall be entered modifying the
child support to show that it is retroactive only to August 15,




We Concur:      I
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                                        406-444-3858


ED SMITH
 CLERK
                                       October 29, 1992

                                CERTIFICATE OF SERVICE

   I hereby certify that the following order was sent by United States mail, prepaid, to the
   following named:


   H. James Oleson
   Oleson Law Firm
   P.O. Box 2036
   Kalispell, MT 59903-2036

   Bruce McEvoy
   Warden, Christiansen, Johnson & Berg
   P.O. Box 3038
   Kalispell, MT 59903-3038

                                                   ED SMITH
                                                   CLERK OF THE SUPREME COURT
                                                   STATE QF MONTAN&
