                                              No.    85-255

                  I N THE SUPREME COURT O F THE STATE O F MONTANA

                                                    1986




I N RE THE MARRIAGE OF
CAROLE D   .
           (CLARK) CONKI,IN,

                    P e t i t i o n e r and A p p e l l a n t   ,
          and

MARK A.    CLARK,

                    R e s p o n d e n t and R e s p o n d e n t .




APPEAL FROM:        T h e 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 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 Thomas I l c K i t t r i c k , J u d g e presiding.


COUNSEL OF RECORD:


          For Appellant:

                    Hilley & Loring;              Emilie Loring,            G r e a t F a l l s , Montana


          F o r Respondent:

                    S w a n b e r g , K o b y , S w a n h e r g & l l a t t e u c c i ; D a n i e l L.
                    F a l c o n , 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 :   Jan. 30, 1 9 8 6

                                                       Decided:         A p r i l 15, 1986



Filed:
           4ipR   1 3
                   .    1986



                                                                          8
                    -
                                                    Clerk
Mr. Justice William E. Hunt, Sr., delivered the Opi-nion of
the Court.


        Carole D.       (Clark) Conklin appeals from an order of the
Cascade        County    District     Court    modifying       child    support,
ordering        the   parties    to   share   the     children's visitation
travel expenses, and relieving respondent of the obligation
of making car payments.
      We reverse.
        The issues raised by appellant Carole are:
        1.    Whether the District Court erred in modifying child
support?
        2.    Whether the District Court erred             i.n   amending the
payment of visitation travel expenses of the children?
        3.    Whether     the    District     Court    erred     in    releasing
respondent from his             obligation to pay        the remaining car
payments?
      The parties were married on December 23, 1967.                   Two sons
were adopted when they were infants.                  The parties separated
in   June,      1982, and       Carole   filed    for dissolution of the
mzrriage.         The parties entered into a child custody and
property settlement agreement on July 8, 1.982.                  The decree of
dissolution was entered on August 5, 1982, and incorporated
the agreement.
      At      the time of the dissolution, respondent Mark was
employed as general counsel for IFG Leasing in Great Falls;
Carole was a full time homemaker.                PCark's salary was $60,000
per year with potential bonuses of $15,000 to $40,000 per
year.        The agreement provided that Carole was to have custody
of the children, Mark was to pay child support of $500.00 per

month per child, and payments of $353.00 per month on the
Jeep which was awarded to Carole.               Following the dissolution,
Carole    moved      to     Butte,      and    Mark    was     transferred     to
Minneapolis, Minnesota.
       On September 30, 1983, Mark petitioned for modification.
On March 20, 1985, the District Court reduced Mark's child
support obligation to $250.00 per month per child, ordered
the    parties    to      share    the    children's        visitation      travel
expenses equally, and relieved Mark of the remainder of the
Jeep payments.
       We will first address the modification of child support.
The District Court can modify a child support obligation only
upon a showing of changed circumstances so substantial and
continuing as        to    make   the terms of the original decree
unconscionable.           Section 40-4-208 (2)(b)       .     This Court will
reverse the District Court onl-y if the District Court's
findings are clearly erroneous in light of the evidence in
the record.      In re the Marri?ge of Carlson and Carlson (Mont.
1984), 693 P.2d        496, 41 St.Rep.         2419.        The appellant must
show that there was a clear abuse of discretion or an error
in the District Court's              findings.         Reynolds v.     Reynolds
(Mont. 1983), 660 P.2d 90, 40 St.Rep. 321.
       In this case, we find such an abuse of discretion.                      We
have   held   that     "the conditions and             circumstances of       the
parties must be examined and determined at the time of the
modification      hearing,        and    may   not     be    based   upon    mere
speculative future conditions or possible conditions."                       Gall
v. Gall    (1980), 187 Mont.            17, 20, 608 P.2d         496, 498.      A
careful reading of the findings of fact and conclusions of
law indicates that the District Court did rely on speculative
conditions.      Finding of fact number 9 states:
        Mr. Clark is now involved in a potential lawsuit in
        regard to the sale of the Great Falls home. Mr.
        Clark has presented evidence indicating that the
        second mortgagee on the property intends to file
        suit in the immediate future if Mr. Clark does not
        make satisfactory arrangements to cover the second
        mortgage on the property.      Mr. Clark did not
        anticipate this debt at the time of the Decree of
        Dissolution. The amount on the debt is $18,346.07.
        (Emphasis added.)
In its findings of fact number 11, the District Court states
that Mr. Clark has purchased a condominium in Minneapolis and
"that the        complex was     purchased without     knowledge of      a
pending lawsuit in regard to the construction of the complex.
1   .   Clark    is now    engaged    in   a   lawsuit to recover his
investment.        - - - anticipated that in the near future
                   It is not
r . Cl-ark will retrieve any of the down payment that his
[second.]wife made on the compl.ex."           (Emphasis added.)
        The     court   relies   on   speculative conditions       in   its
conclusions of Law as well.                Conclusion of law number 6
states that "Mr. Clark has been served notice of a potential
suit for the sale of the family home in Great Falls, Montana,
on a debt in the amount of $18,346.07.              This debt was not
anticipated at the time of the dissol.ution of the marriage."
Conclusion of law number 10 states that " [tlhe reduction in
income plus the presence of anticipated debt results in
making    the original terms of the Decree unconscionable."
        The District Court abused its discretion by not limiting
its consideration to circumstances in existence at the time
of the hearing.          At the time of the hearing Mark. was not
involved in a lawsuit over the Great Falls home, and it was
mere speculation that Plark would not retrieve any of the down
payment made on the condominium.
        Further, there is no substantial credible evidence on
the record to justify the District Court's conclusion that
Mark's change in cond.ition is permanent.         We have addressed
this question before.         In Carlson, 693 P . 2 d    at 499, we
stated:
      The record substantiates that the father is
      currently unemployed but there is no evidence
      supporting a conclusion that this substantial
      cha.nge in the father's circumstances is continuing.
      In Hughes v. Hughes (Mont. 1983), 666 P.2d 739,
      741, 40 St.Rep. 1102, 1105, the District Court
      findings were held to be clearly erroneous because
      no evidence was presented to prove that the
      husband's change in circumstances was continuous.
      The District Court correctly identified the
      question involved: "Can he go to work?" The
      father's evidence     failed   to   show that his
      unemployment was permanent or that earning capacity
      had been substantially reduced.
        In the instant case, the record ind.icates that Mark's
salary went from $75,000 the year of the dissolution to
$60,000 the year of the hearing.           His employer could no
longer guarantee a salary greater than $45,000 after July 1,
1985.     However, there was no evid.ence to indj-cate that his
salary would. not go up again in the future, that he would not
earn bonuses in the future, or more importantly, that his
earning capacity had been substantially reduced.           To uphold
the District Court's order, the record must show a change of
circumstances so substantial and continuing as to make the
original decree unconscionable.        The record does not support
the     District    Court's   conclusion   that    the    change    is
continuing.
      Therefore, we must reverse the District Court on the
issue of modification of child support.
      We also must reverse on the issue of payment of travel
expenses.    The District Court based its order on the findings
of    fact   and   conclusions   of   law which   we    have   a1read.y
determined are erroneous.
     Finally, we address the order of the District Court
relieving Mark of the responsibil-ity of paying the remainder
of the Jeep payments.     Mark argues that because the Jeep was
used " 9 5 % for the children," it is an aspect of child support
and subject to modification by the District Court.
     Mark relies on Phennicie v. Phennicie (1979), 1 8 5 Mont.
1.20, 604 P.2d 787 to support his argument.   In that case, the
custody and settlement agreement provided that the family
home was to be sold within 6 months after the second child
graduated from high school-. The District Court modified the
agreement and ordered that the home not be sold until the
youngest child graduated from high school.     We affirmed the
District Court stating:
     We note that a large portion of the child support
     section of the agreement deals with the paying for
     and maintenance of the family home.
     Why the home was to be sold after the second child
     graduated from high school, rather than after the
     youngest graduated, is not clear. What is clear is
     that the home was an integral part of the child
     support provisions so long as the second child was
     still a high school student    ... Consequently, we
     find that the terms concerni-ng the home, in this
     case, were part of the child support provisions and
     as such may be modified by further order.
Phennicie, 1 8 5 Mont.
     Mark's reliance on Phennicie is misplaced.        In this
case, the Jeep was clearly denominated personal property in
the agreement.   The Jeep payments were in no way tied to the
support provisions, the vehicle was a marital asset purchased
during the marriage and awarded to Carole in the agreement.
It is incorrect to argue that because the Jeep is used
primarily for the children it is somehow tra.nsformed from
personal property to child support.      The Jeep payments are
part of the property settlement agreement, and as such are
governed      different rules than modification        support.
     Section 40-4-208 (3) states:
     (3) The provisions as to property disposition may
     not be revoked or modified by a court, except:
     (2)     upon written consent of the parties; or
     (b) if the court finds the existence of conditions
     that justify the reopening of a judgment under the
     laws of this state.
     The conditions justifying reopening of a judgment are
found at Rule 60 (b), E4.R.Civ.P.          The grounds are mistake,
inadvertence, surprise, excusable neglect, newly discovered
evidence, intrinsic and extrinsic fraud, misrepresentation,
misconduct, and any other reason justifying relief from the
operation of the judgment.
     The   District Court made        no   findings or conclusions
regarding any of these grounds in its order.             Therefore, we
reverse the order of the District Court reli.eving Mark of the
remainder of the Jeep payments.
     The District Court abused its discretion by relying on
speculative     future   conditions    and    possible     conditions.
Further, the record does not support the conclusion that
Mark's change in circumstances is substantial and permanent.
Finally, the District Court erroneously modified the property
settlement agreement without any showing of the necessary
grounds for such modification.        For these reasons, the order
of the District Court must be reve




We Concur:
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