08/09/2016


                                           DA 15-0727
                                                                                           Case Number: DA 15-0727

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                           2016 MT 190



IN RE THE MARRIAGE OF:

LONA ANN CARTER-SCANLON,

                Petitioner and Appellee,

         and

JOSEPH D. SCANLON,

                Respondent and Appellant.


APPEAL FROM:            District Court of the First Judicial District,
                        In and For the County of Lewis and Clark, Cause No. BDR-2000-373
                        Honorable Jeffrey M. Sherlock, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                        Mark P. Yeshe, Attorney at Law, Helena, Montana

                 For Appellee:

                        David B. Gallik, Attorney at Law, Helena, Montana



                                                    Submitted on Briefs: June 29, 2016

                                                               Decided: August 9, 2016


Filed:

                        __________________________________________
                                          Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Joseph Scanlon (Joseph) appeals from the denial of his motion to modify his child

support obligation entered by the First Judicial District Court, Lewis and Clark County.

¶2     We affirm and address the following issue on appeal:

       Did the District Court abuse its discretion when it denied the motion to modify
       child support?

                 PROCEDURAL AND FACTUAL BACKGROUND

¶3     This appeal is Joseph’s second attempt in as many years to modify his child

support obligation for the two children he has with Lona Carter-Scanlon (Lona). We

chronicled much of Joseph’s and Lona’s legal dispute, dating back to their 2003 divorce,

in In re Marriage of Carter-Scanlon, 2014 MT 97, 374 Mont. 434, 322 P.3d 1033, and

need not repeat that history here.

¶4     Joseph moved the District Court to modify his child support obligation on

April 30, 2015. The basis for Joseph’s motion was that he had been determined to be “a

person with a most significant disability” by Montana Vocational Rehabilitation (MVR),

an agency of Montana’s Department of Public Health and Human Services. Joseph asked

the District Court to lower his monthly payments from $814 per month to $21.50 per

month per child. The District Court held a hearing on the matter on October 21, 2015.

¶5     At the hearing, Morgan Vincent, a vocational rehabilitation counselor with MVR,

testified at length about Joseph’s condition. Ms. Vincent works with individuals who

have disabilities and assists them in returning to employment and living independently.

Ms. Vincent testified Joseph had been designated a person with “a most significant
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disability,” which means he has a physical or mental impairment that constitutes or

results in a substantial impediment to employment. Joseph and Ms. Vincent developed

an employment plan for Joseph because, according to Ms. Vincent, Joseph was not able

to do the work he had done in the past. The plan contemplated that Joseph would receive

training to become an equine dentist. However, Ms. Vincent stated that Joseph needed

surgery on his rotator cuffs, as well as neck surgery, and that the plan may need to be

adjusted depending on the success of his surgeries. Ms. Vincent added that Joseph is

“willing to pursue other employment if this career is not possible after he has undergone

surgery,” and that “[d]epending on how [Joseph’s] treatment progresses, a vocational

evaluation or training may be needed to either change his [employment plan] or progress

towards his goal. These services will assist [Joseph], as his disabilities are currently

changing, and help him with stability on his job.” Joseph’s physician did not testify, nor

were Joseph’s medical records submitted to the court.

¶6     The District Court heard testimony from forensic CPA Nicholas Bourdeau, who

opined that Joseph’s income was significantly higher than that reported on his tax returns.

Bourdeau imputed Joseph’s income in 2015 to be $73,000. The District Court received

testimony that Joseph had recently competed in, and won, the National Finals Ski Joring

horse race in Red Lodge. The District Court also received evidence that Joseph had a

25% ownership stake in a 300-lot subdivision.

¶7     The District Court entered its findings of fact, conclusions of law, and order

denying Joseph’s motion to modify child support. The District Court concluded there

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was a change in Joseph’s circumstances “that significantly impacts his ability to pay $814

per month in child support,” but went on to conclude that “it does not appear that this

condition is so substantial and continuing as to make the eventual payment of child

support unconscionable.” The District Court stayed Joseph’s child support obligation for

thirteen months, reasoning that “to make [Joseph] currently pay this amount when faced

with his impending medical expense and retraining period would make it

inequitable . . . .” After the stay of thirteen months, monthly child support would resume

and Joseph would be required to pay off the child support accumulated during the stay

over the next twelve months. Joseph appeals.

                               STANDARD OF REVIEW

¶8     A district court’s decision on modification of child support is reviewed for an

abuse of discretion. In re Marriage of Wilson, 2009 MT 203, ¶ 12, 351 Mont. 204, 210
P.3d 170. A trial court abuses its discretion when it acts arbitrarily without conscientious

judgment or so exceeds the bounds of reason as to work a substantial injustice. In re

Kessler, 2011 MT 54, ¶ 15, 359 Mont. 419, 251 P.3d 147. The district court’s findings of

fact are reviewed for clear error, and its conclusions of law are reviewed for correctness.

In re Marriage of Damschen, 2011 MT 297, ¶ 22, 363 Mont. 19, 265 P.3d 1245. Clear

error exists if substantial credible evidence fails to support the findings of fact; if the

district court misapprehended the effect of the evidence; or if the Supreme Court has a

definite and firm conviction that the district court made a mistake. Pastimes, LLC v.

Clavin, 2012 MT 29, ¶ 18, 364 Mont. 109, 274 P.3d 714.

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                                       DISCUSSION

¶9     Did the District Court abuse its discretion when it denied the motion to modify
child support?

¶10    A district court may modify maintenance or support “upon a showing of changed

circumstances so substantial and continuing as to make the terms unconscionable.”

Section 40-4-208(2)(b)(i), MCA.       We have interpreted this standard to mean that a

finding of changed circumstances is a prerequisite to any inquiry into the

unconscionability of a prior support award. In re Marriage of Pearson, 1998 MT 236,

¶ 41, 291 Mont. 101, 965 P.2d 268. If a change in circumstances is established, the

District Court must then determine whether the change is circumstances is “so substantial

and continuing as to make the terms unconscionable.” Pearson, ¶ 41. There is no set

definition of unconscionability; rather, determinations of unconscionability are made on a

case-by-case scrutiny of the underlying facts. Pearson, ¶ 30.

¶11    Joseph argues that, given the District Court’s determination that he is disabled,

with no certainty that future surgeries will resolve his problems, it was “unconscionable

for the obligation to continue to accrue,” and that the court’s stay of support “is an

implicit finding that Joe’s inability to pay support is continuing.”

¶12    It should first be noted that the District Court did not enter specific findings of

fact, but provided a narrative that summarized the evidence offered by both sides, with

little that would be considered definitive findings from the evidence. As the trier of fact,

a district court should evaluate the evidence, including its determinations about the

evidence it has accepted and rejected after assessing credibility and weight, because an
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appellate court cannot make such assessments. Although noting Ms. Vincent’s testimony

about the impediment to Joseph’s employability, the District Court also stated that “there

are serious questions concerning Joseph’s condition which continue to exist,” citing

Joseph’s failure to provide medical evidence and his recent winning of a national finals

ski joring competition, and reasoning “his ability to perform such a feat does raise some

suspicion as to his current claims.” These expressions of doubt about Joseph’s claims—

which Joseph’s arguments assume were resolved in his favor—actually fed into the

District Court’s numerated Conclusions of Law, wherein the District Court reiterated

findings from the previous year’s case that “Joe is capable of earning $52,000 a year.”

Although concluding that Joseph had established “a change of circumstances that

significantly impacts his ability to pay $814 per month in child support,” the court also

concluded that this condition is temporary and not continuing, and therefore not

unconscionable. Joseph argues that this conclusion of law was error because the District

Court’s determination that Joseph’s change of circumstances was only temporary is

clearly erroneous.

¶13   A finding is clearly erroneous if it is not supported by substantial evidence.

Clavin, ¶ 18. Substantial evidence is evidence that a reasonable mind might accept as

adequate to support a conclusion, even if weak and conflicting. Siebken v. Voderberg,

2015 MT 296, ¶ 12, 381 Mont. 256, 359 P.3d 1073. It consists of more than a mere

scintilla of evidence but may be less than a preponderance. Marriage of Schmitz, 255
Mont. 159, 165, 841 P.2d 496, 500 (1992).

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¶14   Ms. Vincent testified that in order to be an equine dentist, Joseph would need

rotator cuff surgery as well as neck surgery. Crucially, Ms. Vincent went on to testify

that Joseph is “willing to pursue other employment if this career is not possible after he

has undergone surgery,” and that “[d]epending on how [Joseph’s] treatment progresses, a

vocational evaluation or training may be needed to either change his [employment plan]

or progress towards his goal. These services will assist [Joseph], as his disabilities are

currently changing, and help him with stability on his job.” Ms. Vincent’s testimony

established that even if Joseph cannot become an equine dentist due to unsuccessful

surgery, Joseph will pursue other employment that he is physically capable of

performing. Thus, according to Ms. Vincent, the outcome of Joseph’s surgery affected

his ability to become an equine dentist, not his ability to pursue employment in other

occupations. This evidence is more than “a mere scintilla” that Joseph’s change of

circumstance is temporary.

¶15   Furthermore, the District Court also noted in its order that the forensic CPA

imputed Joseph’s income at higher than stated in his tax returns for 2015, that Joseph had

a 25% ownership stake in a 300 lot subdivision, and that he was able to compete in a

horse racing competition. These findings support the District Court’s conclusion that

Joseph’s change in circumstance did not render the child support “unconscionable,”

because, according to the District Court, Joseph has other sources of income and is

physically capable of performing certain jobs if he is physically capable of competing in

a horse racing competition.

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¶16    The District Court’s denial of Joseph’s motion to modify his child support

obligation was not an abuse of discretion. Although the denial of this motion may raise

questions about the validity of the District Court’s sua sponte stay of Joseph’s child

support obligation, Lona did not cross-appeal the issue. It is therefore not properly before

us for review. Gabriel v. Wood, 261 Mont. 170, 178, 862 P.2d 42, 47 (1993).

¶17    Affirmed.


                                                 /S/ JIM RICE


We concur:


/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ BETH BAKER




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