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No. 8 7 - 1 0 9

IN THE SUPREME COURT OF THE STATE OF MONTANA
1987

IN RE THE MARRIAGE OF FRANK L. NEISS, Petitioner and Appellant, and DARLENE M. NEISS, Respondent and Respondent.

APPEAL FROM:

District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable Robert Holmstrom, Judge presiding.

COUNSEL OF RECORD: For Appellant: Michael M. Morse, Billings, Montana For Respondent: Whalen
&

Whalen; Timothy J. Whalen, Billings, Montana

Submitted on Briefs: July 14, 1 9 8 7 Decided: October 6, 1 9 8 7

Clerk

Mr. Chief Justice J. A. Turnage delivered the Opinion of the Court. Frank L. Neiss appeals an order of the Thirteenth Judicial District, Yellowstone County, finding Frank and Darlene Neiss' agreement to modify child support in viola.tion of public policy and thereby null and void. We affirm. Appellant Frank Neiss raises one issue for our review: Did the District Court abuse its discretion when it declared the parties' agreement for modification of child support to be null and void? Frank and Darlene Neiss were married in Cody, Wyoming, on August 30, 1968. Two children were born of the marriage: Patrick on July 1, 1971 and Camile on August 31, 1973. Frank subsequently petitioned for divorce. On January 15, 1976 a decree of dissolution was entered which provided that custody of the children be awarded to Darlene. Frank Neiss was ordered to pay $150 in child support per month for each child and $200 per month for maintenance. On January 3, 1978, the original decree was modified and Frank was ordered to pay $125 per month for each child and $100 per month in maintenance. Frank's obligation of $100 per month in maintenance expired in January, 1986. On August 16, 1984, Frank and Darlene Neiss entered an agreement entitled "Agreement for Modification of Entry on Decree" (hereinafter agreement to modify). Roth parties were represented by counsel. The agreement to modify required that Frank make quarterly installment payments totaling $12,000 on or before November 1, 1985. In return Darlene would release Frank from further obligations of child support and maintenance. At trial, Frank Neiss testified that he faced great financial problems due to poor crop prices and farm drought.

Neiss stated that he had difficulty finding non-farm work and that he was unable to meet his child support obligations. When the parties entered the agreement to modify, Frank was 53,500 in arrears in child support and maintenance payments. Darlene testified that the agreement, if enforced, would release Frank of $9,000 in future child support. Darlene also testified that she entered the agreement because Frank was behind in his payments and that she had experienced difficulty collecting payments from Frank. On May 9, 1986, Darlene petitioned the District Court to declare the entire agreement null and void. Darlene alleged that Frank was thirty days late on his final payment of $3,500. Pursuant to the agreement, Darlene exercised her right to declare the agreement null and void. The District Court found the agreement null and void as a violation of public policy. The court did not address Darlene's claim that Frank violated the terms of the agreement. In determining whether the agreement to modify is valid, the District Court is governed by S 40-4-208, MCA, which provides: of Modification and termination - provisions - maintenance, support and for property disposition. (1) Except as otherwise provided in 40-4-201(6), a decree may be modified by a court as to maintenance or support only as to installments accruing subsequent to actual notice to the parties of motion for modification.

(2) (b) Whenever the decree proposed for modification contains provisions relating to maintenance or support, modification under subsection (1) may only be made :

(i) upon a showing of changed circumstances so substantial and continuing as ma to - k e t h e terms unconscionable; or (ii) upon written consent - - parof the ties. [Emphasis added.] Appellant Frank Neiss contends the District Court abused its discretion when it concluded the agreement to modify was null and void as a violation of public policy. Frank argues that both parties were represented by counsel and relied on the terms of the agreement. Frank also contends

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Montana Law