MARRIAGE OF HUGHES
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NO. 8 2 - 4 9 3 IN THE SUPREME COURT OF T - E STATE OF JIONTAXA II 1983 IN RE THE MARRIAGE OF JEFFREY 0 . HUGIiES, Petitioner and Respondent, -vsPAPIELA AIJN ITUGHES , Respondent and Appellant. Appeal from: District Court of the Thirteenth Judicial District, In and for the County of Stillwater, The Honorable William J. Speare, Judge presiding. Counsel of Record: For Appellant: W. Corbin Howard, Billings, Montanq For Respondent : James J. Sinclair, Billings, Montana - - - -. - Submitted on Briefs: April 29, 1983 Decided: July 13, 1983 Filed: JUL 1 3 1983 Clerk ----- Mr. J u s t i c e Court. John Pamela reducing C. Ann Sheehy Hughes t h e amount o f delivered (wife) the appeals Opinion from an of the order c h i l d s u p p o r t t o b e p a i d t o h e r by J e f f r e y 0 . Hughes ( h u s b a n d ) e n t e r e d i n t h e D i s t r i c t C o u r t o f t h e T h i r t e e n t h J u d i c i a l D i s t r i c t , S t i l l w a t e r County. The p a r t i e s w e r e d i v o r c e d on December 9 , 1 9 8 0 . ant to a Child Agreement, and Custody, Support and w i f e r e c e i v e d c u s t o d y of husband agreed to make Property Pursu- Settlement t h e two m i n o r c h i l d r e n support payments of $350 p e r month f o r e a c h c h i l d . On May 2 4 , 1 9 8 2 , h u s b a n d p e t i t i o n e d t h e D i s t r i c t C o u r t t o modify the o r i g i n a l decree t o reduce h i s o b l i g a t i o n t o $200 p e r month f o r e a c h c h i l d . that the r e d u c t i o n was child support Husband s t a t e d n e c e s s a r y b e c a u s e h e was p r e s e n t l y unernployed and h a d n o income. Shortly rogatories. thereafter, Husband wife served husband with inter- r e f u s e d t o answer any i n t e r r o g a t o r i e s w h i c h e s s e n t i a l l y a s k e d him t o r e v e a l t h e amount o f money h e had p u t i n t o h i s new w i f e ' s bank a c c o u n t s and had t a k e n o u t of t h o s e same a c c o u n t s f o r t h e y e a r s 1980, 1 9 8 1 and 1 9 8 2 . Husband a l s o r e f u s e d t o a n s w e r s e v e r a l i n t e r r o g a t o r i e s which d e a l t w i t h t h e i d e n t i t y o f h i s c u s t o m e r s and t h e amount o f income he r e c e i v e d f r o m them, s t a t i n g t h a t t h i s i n f o r m a t i o n was c o n f i d e n t i a l . discovery. The D i s t r i c t t h a t husband's The District Wife s u b s e q u e n t l y f i l e d a m o t i o n t o compel new w i f e ' s C o u r t would Court denied t h e motion, income c o u l d allow wife to stating n o t be considered. examine husband's income p r o d u c i n g a s s e t s , h o w e v e r , s i n c e h u s b a n d ' s income was completely discoverable. A t t h e t i m e of t h e p a r t i e s ' d i v o r c e , h u s b a n d was s e l f - employed taxes as for a management 1980, consultant. the year of 1981, husband's before-tax On November 1, income His was $ 4 7 , 6 8 6 . the divorce, In income was $ 4 4 , 0 5 2 . 1981, husband began working as a S p r i n g , S i e l b a c h and Associ- g e n e r a l manager f o r C h r i s t i a n , Husband was g i v e n a n $ 8 , 0 0 0 c a s h a d v a n c e a n d was a l s o ates. p a i d a m o n t h l y s a l a r y o f $ 3 , 0 8 2 f o r November, December, a c t i v i t i e s with other clients. From F e b r u a r y t o May, h u s b a n d ' s m o n t h l y s a l a r y was i n c r e a s e d t o $ 4 , 3 3 3 . 1 9 8 2 , h u s b a n d ' s employment w i t h C h r i s t i a n , Associates indicated that rebuild and when h e was a l s o a l l o w e d t o c o n c l u d e h i s b u s i n e s s January, and before was terminated. i t would his private take At from I n May o f Spring, Sielbach time, this three 1982, husband t o s i x months consulting business. Husband's to income H i s income f o r J u l y a n d d e c r e a s e d i n J u n e 1982 t o $2,450. August 1982 amounted t o $1,475 and $1,900 r e s p e c t i v e l y . The h e a r i n g o n h u s b a n d ' s p e t i t i o n was h e l d on A u g u s t 30, 1982. At that t i m e wife testified income was b e t w e e n $ 8 , 0 0 0 annual monthly expenses amounted to that and $10,000 $1,200. She her average and t h a t h e r also testified t h a t s h e n e e d e d t h e $350 p e r month p e r c h i l d s u p p o r t p a y m e n t t o provide for the p a r t i e s ' children. On O c t o b e r 6 , 1 9 8 2 , t h e D i s t r i c t C o u r t i s s u e d a n o r d e r r e d u c i n g h u s b a n d ' s c h i l d s u p p o r t p a y m e n t s t o $200 p e r month per child. From t h i s o r d e r , w i f e a p p e a l s a n d p r e s e n t s t h e following i s s u e s f o r our review: 1. Did the District Court err in denying wife's motion f o r an o r d e r compelling d i s c o v e r y ? 2. Did t h e D i s t r i c t C o u r t e r r i n m o d i f y i n g h u s b a n d ' s child support obligation? Wife first contends that husband should have been compelled to answer the following and other related interrogatories: "INTERROGATORY NO. 25: State the location and account number of each and every checking account and savings account maintained by you or any other person, including your current wife, in which income earned by you or as a result of your activities has been placed for the calendar years 1980, 1981, and 1982." If you were em"INTERROGATORY NO. 9: ployed during the years 1980 and 1981, state: (a) the name and address of persons for whom you performed work in exchange for compensation; (b) the date you commenced performing work; (c) job title or position; (d) description of duties; (e) name and address of immediate supervisor." Husband based his refusal to answer Interrogatory Nos. through P.2d on Duffey 697, 38 St.Rep. Duffey Mont 25 . 1105, wherein this Court held that a husband's obligation to support his children may not be increased simply because he has remarried and his new wife is bringing additional income into his household. Husband also refused to answer Interrogatory Nos. 9 and 10 because of the confidential nature of the work he performs. Wife asserts that the information she asked for in the interrogatories is neither irrelevant nor privileged, and therefore the District Court should have compelled discovery. We agree. Rule 26(b)(l), M.R.Civ.P., states: "Parties may obtain discovery regarding notany matter, - privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of any other party It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." (Emphasis added.) . .. . . . The information wife sought in Interrogatory Nos. 25 through 29 was certainly relevant to the subject matter of the pending action. child In his petition for modification of support, husband claimed that he did not have the ability to pay the current level of child support because he was unemployed and had no income. To defend against this claim, wife necessarily had to determine whether husband had the income and assets available to pay the current level of child support. into his Therefore, any income deposited by husband current wife's bank accounts was discoverable. Wife was attempting to discover the income of husband, not that of husband 's current wife, and thus husband's reliance on Duffey is unfounded. Husband also refused to answer interrogatories relating to his employment for the years 1980 and 1981, asserting that the work he performed was confidential and "requires a reputation for not divulging the name of the client or the services performed." The legislature has recognized the importance of protecting the confidentiality of certain relations. The See section 26-1-801 et seq., MCA. relationship between a management consultant and his clients, however, is not considered privileged either by statute or Mont.K.Evid. by the Montana Constitution. See Rule 501, Therefore, husband cannot avoid answering the interrogatories by claiming privilege. Wife also asserts that the District Court erred reducing husband's child support obligation. mining whether should be in When deter- the child support obligation in this case modified, the section 48-4-208(2)(b)(i), District Court is MCA, which states: governed by "Whenever the decree proposed for modiiication contains provisions relating to . . . support, modification . . . may only be made: (i) upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable." This Court will reverse the District Court on this issue only if the District Court's findings are clearly erroneous in light of the evidence in the record. Reynolds v. Reynolds ( 1983), Rule 52(a), M.R.Civ.P.; , Mont. 660 P.2d 90, 40 St.Rep. 321. In this case, the District Court's findings are clearly erroneous since no evidence was presented to prove that husband's change in circumstances was continuing. Indeed, the District Court recognized this at the hearing for modification of support when it stated: "The one thing that troubles me with it is I do think the law says you've got to show a continuing -- The testimony isn't quite what I thought I would hear -- substantial and continuing change in circumstances. The Now, I think that's the problem." evidence shows that immediately upon being terminated from his employment, husband filed a petition to modify his support payments because he was presently unemployed and had no income. However, in June, the month after he was terminated, his income amounted to $2,450. Although husband's income was reduced to $1,475 in July, it increased in August to $1,900. Husband also stated prior to his termination that it would take from three to six months to rebuild his consulting business. This evidence merely demonstrates that husband suffered a reduction in his income for a relatively short period of time. The reduction in husband's income, however, was not proven to be "continuing as to make the terms [of the original agreement] unconscionable. " We therefore reverse the order of the District Court and remand the cause with instructions to compel husband to answer the interrogatories submitted by wife and to thereafter hold an evidentiary hearing to determine if husband's circumstances have changed since the commencement of appeal. / We concur: La-. - . L4.U)h/ Justice this
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