                                       NO.    95-048
            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                             1995




APPEAL   FROM:     District  Court of the              Sixteenth       Judicial         District,
                   In and for the County               of Powder       River,
                   The Honorable   Kenneth             R. Wilson,       Judge        presiding.


COUNSEL OF RECORD:
            For   Appellant:
                   Jerrold      L.    Nye, Nye & Meyer,
                   Billings,         Montana
            For   Respondent:
                   A. Lance Tom,   Lucas             & Monaghan,
                   Miles  City, Montana


                                         Submitted       on Briefs:          April        27,       1995
                                                            Decided:          July       17,      1995
Filed:
Justice          William           E.     Hunt,            Sr.,          delivered                the     opinion              of      the       Court.
          Appellant               Scott            J.      Sanburn              appeals              from         an order                modifying

child          support           issued             by        the        Sixteenth                Judicial              District                 Court,

Powder         River        County.                 We affirm.

          The sole              issue         on appeal                  is:

          Did      the      District                Court            err       when          it      determined               the         amount         of

modification                in     appellant's                      child            support          obligation?

          Scott          and Pam Sanburn                           were        divorced              on July            14,      1992.            Scott
was ordered               to pay $650 per month                                 in       child        support           for         the     parties'

three          minor        children.                         In     May           1994,          one       of     the          children               was
emancipated               following                graduation                  from        high       school.             Pursuant               to the

final      decree          of     dissolution,                       upon          the     oldest           child's            emancipation,

Scott's           child         support             obligation                  was reduced                  to     $500 per                month         as

of      June     15,      1994.          In July               1994,           Scott         filed       a motion              to modify               his
child      support           obligation                    based           on changed                financial            circumstances.

A hearing               on this          motion            was held                  on September                 8,     1994.
          At      the     hearing,                 the     District                  Court        heard          testimony                from      both

parties            and       received                    financial                   affidavits                   and         child            support

calculations                    from          Scott.                     Scott's              child          support                 calculation

worksheet               placed          his        child            support              obligation               amount            at       $149      per

month.             Scott          did         not        produce               documentation                      at     the          hearing             to

support           his     assertion                 that           his      finances              had changed                  to        the     extent

that      child          support          modification                         was necessary.                      He did             not      provide

any documentation                       of his            expenses.                     Scott's         testimony              regarding               his

current          and future              financial                  circumstances                     was vague,               and consisted

of      rough       estimates                 of        the        dates           of     employment               and         the        amount          of

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money         earned.               He was not                  any more             specific            when testifying                            as to
his     future           employment                  and earnings.                        He testified                      that           he worked

construction                  and ranching                     jobs,          and also           that         he is         self-employed.
He raises              and          sells         calves             with      a partner.                 He testified                        that          he
would        be losing                money          on the            calf         operation            for         1994,           but      that          he

intended                to          continue                   the          operation.                        His          testimony                     was
contradictory                      and      confusing,                  and       contradicted                  the         information                     in
his       financial                  affidavit.                      There          were         discrepancies                        in      Scott's
testimony              between              the      amount            of     his     earnings                and expenses.                         Scott
testified              that         his     tax      returns                do not      accurately                  reflect             the        amount

of     his         earnings,                due       to        the         inclusion             of     personal                    expenses               as
business             expenses               for      tax        purposes.

          Because              of     the         contradictory                     and confusing                    nature             of    Scott's
testimony,              following                  the      hearing            the      District              Court         ordered                him      to

submit          more          accurate              child            support          calculations.                         Scott's                second

calculated              child             support           obligation                increased               by $6,            to      a total             of

$155         per      month.                Pam's          child            support            calculation                  worksheets                   put

Scott's            child            support           obligation                    amount         at     $507            per        month.              The

existing             child          support          obligation                   was $500 per month.                              The District

Court          found          Scott's             first          and         second        child         support                calculations,

and      his         testimony,               to         be incredible,                    and rejected                         them         in     toto.

The only             documentation                       the     District             Court        had was Scott's                            1993 and

1992 income                  tax      returns,              and it           based       its       award        of        child         support             on

that         documentation.                          The         District               Court           set         the         child             support

amount          at     $405 per              month.



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              Did         the      District              Court             err        when            it     determined              the        amount           of

modification                       in     appellant's                      child           support               obligation?

              Our         standard                of         review           in          child             support           modifications                      is

whether              the         district              court          abused               its        discretion.                   In     re      Marriage

of     Hill           (1994),             265 Mont.                  52,      57,          874 P.2d               705,        707        (citing           In    re

Marriage               of        D.F.D.           and D.G.D.                  (1993),                 261 Mont.              186,    203,          862 P.2d

368,          378).
              Scott             argues        that           the     District                  Court          attributed             income           to him

that          is     not         supported              by the              record.                   The District                  Court          used         the

following                  figures             in      its         child           support                 calculations              for        Scott:

                           Wages                                                               $12,373
                           Self-Employment                                                       6,214
                           Depreciation                                                          3,500
                           Interest
                                   TOTAL:                                                      $22,1%
These              figures              came        from           Scott's                income            tax        returns           and       from         his

July          1994         affidavit.

              Modification                     of      a child              support               obligation                 requires              that         the

party               seeking                 the         modification                             establish                   circumstances                       so

substantial                      and        continuing                 as to              make the                original           child           support

obligation                   unconscionable.                           Section                 40-4-208(2)                (b) (i),          MCA.           In re

Marriage                   of      Paunovich                   (Mont.              1995),                  890      P.2d         1291,             1293,         52

St.      Rep.             144,          145         (citing            In        re       Marriage                of     Clyatt             (1994),             267

Mont.              119,         121-22,           882 P.2d                 503,           505).

              In      this         case,            Scott           failed                to     establish                that       his        financial

circumstances                         changed           to the             extent              that        his     original          child           support

obligation                      was      unconscionable.                                  He provided                   no     documentation                     to

support              his        testimony.                   His      testimony                   was contradictory,                           vague,           and

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confusing,                    and did              not             support           the        information                   he provided                     in    his

financial                     affidavit.                            After            the          hearing,                the         District                 Court

requested                different                      child              support          calculations                      from       Scott.                Scott

testified                that             he was able                      to pay $200 per                     month.            He was currently

paying            $500             per          month,               and      his          second             calculation                 indicated                    an

obligation                    amount             of      $155 per                  month.

           The evidence                          in      the         record            supports               the      amount            of        income           the

District                Court             attributed                   to     Scott.               We see no abuse                       of discretion

by    the         District                   Court.                  We hold               that         the        District             Court            did        not

abuse            its          discretion                       when           it      determined                    the         amount             of         income

attributable                        to      Scott.

           Scott              contends                  that          the          child          support            obligation                    ordered           by

the     District                    Court             does           not      conform              to        the     Montana            Child                Support

Guidelines.

           The District                          Court              ordered            Scott            to    submit            new child                    support

calculations                        after          the             hearing.                The District                   Court          stated               in    its

order        that             it     rejected                  Scott's              testimony                 and his           two      child               support

calculations                         in         toto.                 It      used          a      combination                   of       figures                  from

Scott's                income             tax      returns                  and from              his        July      1994          affidavit.
           When a district                               court              does      not         specifically                   follow             the        child

support                 guidelines                       it          must           state           the            reasons             why          they            are

inappropriate                         in        that          case.            Section             40-4-204(3)                  (b),         MCA.

            In         this           case,             the          District               Court             stated            that          it        rejected

Scott's                testimony                   and             child           support              calculations                    in         toto.               It

stated            that             Scott's              contradictory                       testimony                 and his            child               support
computations                        put         him           in     a "disingenuous"                              position.                  It        is     clear

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that        the       District           court         could              not        base      its      child           support
calculations               on evidence            that          it       rejected.            It     rejected           Scott's

offered           evidence        because        of      its         incredibility.                  We hold           that     the

District           Court     conformed           to    the           Child      Support       Guidelines.

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

1988 Internal              Operating         Rules,            this          decision       shall      not      be cited           as

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

with       the     Clerk     of    the      Supreme            Court         and by a report              of     its      result

to     Montana        Law Week,          State        Reporter               and West        Publishing           Company.




We concur:




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