                                             No.    83-502

                  I N THE SUPREI.IE COURT O THE STATE O MOPJTANA
                                           F           F

                                                    1984




I N RE THE MARRIAGE OF
SANDRA L . SMITI-I, n/k/a          S N R L.
                                    A D A           ADAhIS,

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

    and

KEITH M.    SMITH,

                Respondent and Respondent.




APPEAL FROM:       D i s t r i c t Court of t h e Eighth 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 County o f C a s c a d e ,
                   The Honorable John McCarvel, Judge p r e s i d i n g .


COUNSEL O RECORD:
         F


         For Appellant:

                 Gene A.       P i c o t t e , Helena, Montana

         F o r Respondent :

                 K e i t h M. S m i t h , p r o se, G r e a t F a l l s , Montana
                 D a n i e l Donovan, 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 :   Oct.   25, 1984

                                                                 Decided:         ilecember i 3 , 1984


Filed:
         DEC 13 1984
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
     This is an appeal from an order of the Eighth Judicial
District Court, Cascade County.         The order issued after
hearing on a show cause motion in which Sandra Smith (Sandra)
sought to have Keith Smith       (Keith) held in contempt for
failure to pay child. support.      The court refused to find
Keith in contempt and ordered Sandra to allow visitation
under a modified vi-sltation schedule.      Sandra appeals.     We
affirm the district court.
    Appellant raises four issues on appeal:
     (1) Did the district court err in refusing to find
Keith in contempt?
     (2)   Did the district court err in failing to order
Keith to make past-due support payments?
     (3)   Did the district court err in modifying Keith's
visitation rights where the issue was not raised in Sandra's
motion?
     (4) Did the district court err in failing to allow
Sandra to make a full and adequate presentation of evidence
in support of her motion?
     The Smiths divorced in 1976.          Their decree awarded
custody of the couple's daughter, Natalie, to Sandra, subject
to Keith's right of reasonable visitation, and required Keith
to pay all of Natalie's medical expenses plus $100 per month
for her support.     The dissolution apparently went smoothly in
the first years.      The couple lived together briefly in 1980
and then parted again.       Since their final separation, they
have waged a continuous visitation-support battle.
     In late    1980, the District Court ordered Keith and
Sandra to seek counseling to assist them in working out a
visitation schedule.      The counseling failed to achieve the
desired    result;   Keith   remained   unable   to   arrange   for
vistation.     In 1981, he petitioned for modification of his
visitation rights, asking the court to establish a specific
visitation schedule.      Sandra cross-petitioned, asking that
Keith be held in contempt for failure to pay child support.
A specific visitation schedule was established.
     The present encounter began in early 1983 when Keith and
Natalie, with Sandra's consent, made plans to spend a holiday
together.     After Sandra's last-minute refusal to allow Nata-
lie to accompany her father on the already-arranged trip,
Keith again sought judicial assistance.      The court ordered
the special visitation and required Sandra to cooperate in
making   the necessary preparations.     A.fter a vituperative
scene and frayed tempers, Natalie left for the holiday with
her father.     Four months later, Sandra brought this action.
     Under the d.ecree, Keith is required to pay $100 per
month as child support and is also required to pay all rea-
sonable medical, dental, hospital, doctor, optical and drug
expenses for Natalie.     The affidavit of the clerk of court
establishes that Keith was sixteen months behind in his $100
per month child support payments.    Sandra filed her affidavit
and application for an order requiring Keith to pay the
arrearage and hearing was held before the District Court.
Sandra was represented by counsel and Keith appeared pro se.
Both Sandra and Keith testified.     In addition, the District
Court interrogated the parties and Keith in particular.    The
district court found that Keith was not in contempt of the
court order and had made a diligent effort to comply with the
court's order.     In addition, the district court ordered the
specific visitation schedule granting Keith weekend visita-
tion rights every other weekend.
    Did the district court err in refusing to find Keith in
contempt?
    The district court stated in its order that Keith had
testified that because of his physical and mental condition
he was unable to make all the support payments required; that
he was a real estate salesman and because of the depressed
market for real estate in Great Falls, he was unable to make
sufficient income with which to support himself and to pay
the child support; and that he had made $100 per month sup-
port payments for thirteen months during the last two years.
The court then stated:
    "The Court finds that he [Keith] is not in contempt
    of this Court's Order and has made a diligent
    effort to comply with this Court's Order."
The court did not make a specific order as to contempt other
than this finding and conclusion.
    While a more detailed series of findings would have been
preferable, there is substantial evidence to support the
court's   statements as to Keith's     testimony and there is
substantial evidence to support the factual conclusion that.
Keith had made a diligent effort to comply with the order of
the district court.      Sandra contends that the record shows
that Keith had made car payments, house payments and had
otherwise   supported himself.      Sandra   argues   these   facts
indicate that Keith had not exercised a diligent effort to
make support payments.     This contention is without merit in
light of the substantial evidence standard of review applied
by this Court.    In re Marriage of Concepcion (Mont. 1984),
687 P.2d 718, 720, 41 St.Rep.     1675, 1677.    This Court will
not re-weigh conflicting evidence.
    Because of Keith's inability to pay, the district court
refused to find him in contempt.     It would have been better
had the court addressed in more detail Sandra's request for a
contempt order regarding sixteen months of delinquent pay-
ments.   Some frustration is natural where an attempt to force
payment of delinquent child support payments results only in
a summary conclusion.      Unfortunately, no alternative was
presented to the court.    Sandra presented no specific evi-
dence regarding Keith's ability to pay.   While this is not a
satisfactory solution to the problem, we find that the dis-
trict court did not commit reversible error by refusing to
find Keith in contempt.


     Did the district court err in failing to order Keith to
make past-due support payments?
     Sandra argues that the failure to order Keith to make
payments was in effect a cancellation of past-due payments.
There is no express cancellation in the order and such a
cancellation cannot reasonably be inferred from the language
of the order.
     As previously noted, it would have been preferable that
the court discuss in more detail what might be done with
regard to the delinquent support payments.       However, the
court's refusal to again order Keith to make support payments
is not reversible error.    That obligation remains effective
by virtue of the previous orders of the court.   No action was
taken which modified the existing requirement to make support
payments.
    While the court did not specifically order payment of
past-due child support, the court did admonish Keith regard-
ing his parental support obligation:
    ". .    .[Sandra's husband] has no obligation to
    support your daughter. You better get that through
    your head.   That is your daughter and it is your
    obligation to support that child.      It doesn't
    matter if he is making a million dollars, it is
    your obligation to support that child.
     ". . . of course, CKeith] is required to make those
     [past-due] support payments if he is able to. That
     order stands, of course.
These statements are inconsistent with Sandra's contention
that the court cancelled past-due payments.
     We hold that there was no error in refusing to order
Keith to make past d.ue support payments.


     Did the district court err in modifying Keith's visita-
tion rights where    the issue was not raised       in Sandra's
motion?
     Sandra contends it was error for the district court to
modify the visitation order where the only issue for hearing
was whether Keith should be held in contempt for failure to
pay child support.
     As previously mentioned, both Sandra and Keith personal-
ly testified.   Keith represented himself pro se and was quite
vocal.    The district court participated to a substantia.1
degree in questioning the parties, which was appropriate in
light of Keith's pro se appearance.      In the course of testi-
mony, it became clear that visitation rights were being
coilsidered by both Sandra and. Keith.    Sandra testified, and
the Court found, that Sandra had refused to grant visitation
because Keith was not current with child support payments.
On the other hand, Keith testified that it did not seem
reasonable to him to make child support payments when he was
being denied his visitation rights.      It is apparent that all
parties, including the District Judge, ha.d become extremely
frustrated with this visitation-support dilemma.
     The district court concluded that Sandra had denied
Keith rights of reasonable visitation because he was not
current with child support payments.        The court concluded
that it was necessary to set out specific visitation periods
for Keith with his daughter, Natalie, because Sandra was not
agreeable to granting reasonable visitation rights.          The
court therefore specifically ordered that commencing Septem-
her 16, 1983, Keith would have weekend visitation rights
every other weekend commencing at 4 p.m. on Friday and ending
at 8 p.m. on Sunday.       Keith was to provide transportation.
There is substantial evidence to support the District Court's
conclusions.
    As pointed out by the District Court, this is but a
chapter    in   the   long, continuing controversy between   the
parties.    In Gall v. Gall (1980), 187 Mont. 17, 19, 608 P.2d
496, 498, we stated:
    "Under section 40-4-217(3), MCA, the trial court
    may modify visitation rights whenever modification
    would serve the best interest of the child."
In Gall, we concluded it was not error for the trial court to
modify the visitation rights of the husband.       In a similar
fashion, we here conclude that it was not error for the trial
court to modify Keith's visitation rights.


     Did the district court err in failing to allow Sandra to
make a full and adequate presentation of evidence in support
of her motion?
    Although the hearing terminated because of the frustra-
tion of all parties including the District Court, the record
does not support Sandra's       contention on this issue. The
transcript shows that Sandra's counsel was all-owed to cross-
examine Keith and that Sandra testified until her own counsel
excused her.     She did not offer any specific evidence regard-
ing Keith's ability to pay.
    The District Court's order is affirmed.
     Chief     Justice   Frank     I.    Haswell    deems    himself
disqualified   and,   therefore,   did   not   participate   in   this
decision.



We concur:




Mr. Chief Justice Frank I. Haswell, deeming himself disqualified,
did not participate in this decision.
Mr. Justice Frank B. Morrison, Jr., dissenting.
     I respectfully dissent.      The district court erred in
failing to find Keith Smith in contempt and in failing to
order him to make delinquent support payments.    Further, the
district court erred in modifying Keith Smith's visitation
schedule with his daughter, Natalie, absent a showing that
the modification would be in Natalie's best interest.
     At the hearing on Sa-ndraSmith Adam's show cause motion,
Keith Smith testified as to why he was behind in his child
support payments.        He stated that illness and a nervous
disorder prevented him from worlcing and that a depressed real
estate market prevented him from making a living as a real
estate agent.   However, when questioned about whether he had
been attempting to sell real estate, he testified:
     "Oh, not really wholeheartedly. But there is [sic]
     no sales. It costs more to go out and drive around
     in your car than you're going to make selling real
     estate in this town, I can tell you that." Tr. p.
     19.
     Further, Smith volunteered a long, dismal story regard-
ing his financial condition, while, at the same time, stating
that he was making house and automobile payments as well as
providing his own living expenses.        Then, the   following
questioning occurred:
     "Q. You have been making payments, house payments,
     providing your own living expenses, staying up with
     your other obligations all durinq this time that
     you have been delinquent in child support payment
     as shown by the records of this Court, and you
     think that the fact that you have actual-ly paid
     $1,300 for the support of a teen-aged daughter in a
     24-month period is a real achievement?
    "A.   That is way too much.  They don't need any
    money.   Especially from me. They don't need any
    money. You can ask -- you know how well off they
    are.
     "Q   This is what   --
     "A. Owner of two night clubs needs $100 a month
     from somebody who isn't working, that is pretty low
       I believe. And then hold my daughter, blackmails
       me with my daughter. Tr. pp. 24-25.
       At that point, the trial judge halted the questioning of
Mr. Smith and stated:

       "THE COURT: All right, that is enough of this.        I
       have heard enough, you can get down.
       "I have had enough of this case right now.     The
       record shows that he has made a diligent effort
       with his income to support the child as far as I'm
       concerned." Tr. p. 25.
       In my opinion, this finding is an abuse of the trial
court's discretion.    The evidence presented by Keith Smith at
the hearing overwhelming supports a finding that regardless
of his ability to do so, Smith is not going to pay child
support for two reasons:        (1) his ex-wife's husband makes
more than enough money with which to support Natalie; and (2)
his visitation rights were being denied.        Neither of these
reasons justifies Smith's failure to support his own daugh-
ter.    Fitzgerald v. Fitzgerald (Mont. 1980), 618 P.2d 867, 37


       Tangentially,   the   majority's   statement   that   Sandra
presented no specific evidence regarding Smith's ability to
pay, places that burden of proof on the wrong party.
       "It has long been the law in this state that to
       avoid being held in contempt for failure to pay
       alimony, it is the duty of the defendant, ' for his
       own protection, to go into court, relate the cir-
       cumstances, and pray for a revocation or modifica-
       tion of the order directing him to pay alimony.'
       State ex rel. Bordeaux v. Second Judicial District
       Court, 31 Mont. 511, 79 P. 13.    (citations omit-
       ted)."   Daniels v. Daniels (1966), 147 Mont. 57,
       59, 409 P.2d 824, 825-826.
Likewise, once Sandra proved that Smith was delinquent in his
child support payments, the burden shifted. to Smith to show
why and to prove his inability to make the payments.
       Child support installments past due and unpaid are not
subject to modification.       Section 40-4-208(1), MCA.     State
Dept. of Revenue v. Dawson (Mont. 1984), 674 P.2d 1091, 41
St.Rep. 46.   This cause should be remanded with instructions
to the trial judge to find Smith in contempt and to hold the
delinquent child support payable immediately and subject to
enforcement by execution.     Williams v. Budke     (1980), 186
P40nt. 71, 77, 606 P.2d 515, 518.
     Regarding   the   visitation   issue,   S40-4-217(3),   MCA,
states in relevant part:      "The court may modify an order
granting or denying visitation rights whenever modification
would serve the best interest of the child."     See also, In re
the Custody of R.L.S. and T.L.S.    (Mont. 1983), 674 P.2d 1082,
40 St.Rep. 1982, where we held that modification of a visita-
tion schedule is governed by the same standard used to judge
modification of a custody decree, the best interests of the
child.   No evidence was presented concerning the best inter-
ests of Natalie.   This cause should also be remanded on the
visitation issue with instructions to the trial judge to
conduct a hearing to determine Natalie's best interests,
pursuant to S40-4-212, MCA.




Mr. Justice Daniel J. Shea ioins in the             of Mr. Jus-
tice Frank B. Morrison, Jr.
