Marriage of Ball

No. 95-165
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
IN RE THE MARRIAGE OF
BARBARA BALL,
Petitioner and Respondent,
and
LUCIEN C. BALL,
Respondent and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Stillwater,
The Honorable Robert Holmstrom, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Gerald J. Neely, Billings, Montana
For Respondent:
Kevin T. Sweeney, Sweeney & Healow, Billings,
Montana
Submitted on Briefs: July 6, 1995
Decided: September 14; 1995
Filed:
Justice William E. Hunt, Sr., delivered the Opinion of the Court.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1995 Internal Operating Rules, the following decision shall not be
cited as precedent and shall be published by its filing as a public
document with the Clerk of this Court and by a report of its result
to State Reporter Publishing Company and West Publishing Company.
In July 1993, respondent instituted proceedings in the
Thirteenth Judicial District Court, Yellowstone County, to enforce
a court order requiring appellant to contribute $200.00 per month
towards the support of their adult disabled child. Appellant then
moved the court for a modification of the divorce decree and a
reduction in the amount of support he is required to pay, claiming
a change in circumstances substantial enough to make the terms of
the decree unconscionable. Both matters were addressed at trial,
after which the court found appellant to be in contempt for non-
payment of support, and denied appellant's motion for modification
of the divorce decree. We affirm.
We consider the following issues raised on appeal:
1. Did the District Court err in applying the standards set
forth in § 40-4-208(2) (b), MCA, to a default divorce decree which
provides for the support of an adult disabled child?
2. Did the District Court err in failing to find a change in
circumstances substantial enough to render the existing child
support arrangements unconscionable?
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3. Did the District Court err ln its refusal to deduct from
the unpaid support obligation $1,580.00 that was sent to respondent
by appellant?
Appellant and respondent were divorced in 1986. During their
marriage, they had three children, all of whom were over the age of
21 at the time of the divorce. The oldest child, however, was and
is entirely disabled due to profound retardation. This child, who
is now 34, remains dependent upon his parents for his support and
care.
Appellant did not appear in the 1986 divorce action, and a
default judgment was entered against him. The divorce decree gave
custody of the adult disabled son to respondent and ordered
appellant to pay her $200.00 per month for the disabled son's
support. In July of 1992, appellant purchased respondent's
interest in the family residence, but respondent conditioned her
signing of a quit-claim deed upon appellant's also tendering the
entirety of then-delinquent child support. Appellant thereafter
paid respondent $5,800.00 for the claimed delinquent child support,
and respondent executed the quit-claim deed in his favor.
From the time this lump sum payment was made until the date
the District Court entered its 1994 judgment in this matter,
appellant again failed to pay child support to respondent. Because
of his continued non-payment, respondent moved the court to find
him in contempt pursuant to § 40-5-601, MCA. In response,
appellant moved to modify the dissolution decree, asking the court
to reduce his support obligation from $200.00 to $50.00 per month.
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The District Court found appellant had failed to show a change in
circumstances so substantial as to make the support arrangements
unconscionable, and therefore declined to modify the existing
decree. The court also found appellant to be in contempt because
of his failure to comply with the dictates of the decree.
Issue 1
Did the District Court err in applying the standards set forth
in § 40-4-208 (2) (b), MCA, to a default divorce decree which
provides for the support of an adult disabled child?
Appellant first alleges that § 40-4-208 (2) (b) , MCA, is not
applicable to a default decree ordering support for an adult
disabled child, but that the statute applies only to minor
children. Since this statute does not explicitly mention adult
disabled children, appellant insists that it is inapplicable, and
therefore the District Court "can examine the entire situation de
novo, and if this is done, the district court's abuse of discretion
is apparent."
Appellant raises this issue for the first time on appeal. This
Court will not address an issue that was not raised at the trial
court level. In re Marriage of Blair (1995), 894 p.2d 958, 963, 52
St.Rep. 401, 404; In re Marriage of Binsfield (1995), 888 P.2d 889,
893, 52 St.Rep. 16, 20. We note in passing, however, that this
same statute was the sole basis for appellant's motion to modify
the support decree. His attack upon it now is disingenuous at
best.
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Issue 2
Did the District Court err in failing to find a change in
circumstances substantial enough to render the existing child
support arrangements unconscionable?
Existing support arrangements may be modified only under
certain specific circumstances. Section 40-4-208 (2) (b), MCA,
provides as follows:
(b) Whenever the decree proposed for modification
contains provisions relating to maintenance or support,
modification. . may only be made:
(i) upon a showing of changed circumstances so
substantial and continuous as to make the terms
unconscionable;
(ii) upon written consent of the parties; or
(iii) upon application by the department of social
and rehabilitative services .
Whether circumstances have changed so substantially as to render a
support decree unconscionable is a question of fact. This Court
will review a district court's findings of fact to determine if
they are clearly erroneous. In re Marriage of Kovash (1995), 893
P.2d 860, 862-63, 52 St.Rep. 280, 281.
Appellant alleged at trial that his income has decreased
precipitously since the 1986 divorce, while respondent's income has
increased.
A major obstacle faced by the trial court was the fact that
the income of the respective parties was not determined at the time
of the divorce. Both parties acknowledge that respondent was then
earning approximately two-thirds of the family's income, but both
also agree that appellant, by his own choice, was not working
regularly at that time. Without more information on what his
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income was (or could have been, had he worked steadily), the trial
court faced a difficult task in attempting to determine whether his
income had declined substantially.
Regardless of whether appellant's circumstances had changed or
not, the trial court found the support agreement was not
unconscionable. The court acknowledged that appellant's usual
income is only $675.00 per month. However, the court found that
appellant was capable of working but that he had not attempted to
find work. The court further found appellant had received over
$1,000.00 in interest income the previous year, and the house owned
by appellant had a basis for depreciation of $200,000. Considering
all these facts, the court ruled it was not unconscionable to
require appellant to contribute $200.00 each month towards the care
of his son.
The information regarding appellant's income came from his
1993 income tax return. Appellant's ability to work and his
failure to seek work were established by his own testimony. This
decision of the trial court was not clearly erroneous.
Appellant makes much of the fact that respondent earns more
money than he does, and her income has in fact increased somewhat
in the last nine years. However, such increases can be credited to
her having found and kept a secure job in Texas. Both before and
after the divorce, respondent has worked steadily while appellant
has not. Respondent also has sole responsibility for the care of
the adult disabled son, who lives with her and who incurs expenses
beyond those which would be generated by a healthy minor child.
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Her changes in circumstances do not make appellant's support
obligation unconscidnable; on the contrary, it would be
unconscionable to reward respondent's responsibility by expecting
her to shoulder appellant's burden as well as her own. The trial
court found that the existing support arrangement was not
unconscionable, and this finding is not clearly erroneous.
Issue 3
Did the District Court err in its refusal to deduct from the
unpaid support obligation $1,580.00 that was sent to respondent by
appellant?
From December of 1990 through June of 1992, appellant sent
nine checks to respondent, totalling $1,530.00 In addition, he
sent her a money order in the amount of $50.00 after she had
commenced the action for contempt.
The parties disagree on how the $1,530.00 should be
characterized; appellant claims the checks were for child support,
while respondent claims they were gifts, given in an attempt to win
her back. The characterization of the checks is important because
if they are child support, then appellant must be credited as
having paid that amount. If the checks are gifts, however, they
cannot be considered as payment of an obligation arising from a
divorce decree. Delaney v. Delaney (1981), 195 Mont. 259, 635 P.2d
1306. At trial, the District Court had the opportunity to listen
to testimony of each party and observe their behavior and demeanor
and it concluded the checks were gifts.
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Appellant also tendered a $50.00 money order to respondent
specifically for child support after this action was commenced.
Respondent viewed this as part of appellant's attempt to reduce the
monthly support from $200.00 to $50.00, and feared her acceptance
of the money order might be viewed as acceptance of a support
reduction in general. She therefore returned the money order to
appellant.
We hold that the District Court's findings as to the gifts and
the money order are not clearly erroneous and should be affirmed.
Affirmed.
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