No. 84-557
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
IN THE MATTER OF L. R . , Youth
I n Need o f Care.
APPEAL FROM: D i s t r i c t Court of t h e Eighth J u d i c i a l District,
I n and f o r t h e County o f Cascade,
The H o n o r a b l e J o e l G . R o t h , J u d g e p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
H a r t e l i u s & F e r g u s o n ; Cameron F e r g u s o n , G r e a t F a l l s ,
Montana
For Respondent:
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
K a t h y S e e l e y , A s s t . A t t y . G e n e r a l , H e l e n a , Montana
P a t r i c k L. P a u l , C o u n t y A t t o r n e y , Great F a I . l s , Montana
B a r b a r a B e l l , Deputy County A t t y . , G r e a t F a l l s
J e f f r e y T. M c A l l i s t e r , A t t y . f o r L.R., 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 : J u l y 2 5 , 1985
Decided: October 1 5 , 1985
Filed:
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.
A. R. and W. R. appeal an Order of the Cascade County
District Court requiring them to pay $ 2 8 . 8 0 per day for the
care of their adopted daughter, L . R . , in a foster care
institution known as the Rxhievement Home. The court
determined the parents were financially able to contribute to
L.R. 's placement costs based upon A.R. 's monthly income, and
his wife, W.R.'s ability to work.
The sole issue raised by appellants is whether the
District Court abused its discretion in setting the parent's
support obligation at an excessivel-y high level.
We reverse with instructions.
In 1976, A.R. and W.R. adopted a seven-year-old
daughter, L.R. The District Court determined she was a youth
in need of care, and she was removed from her home when she
was 15 years old. Her adoptive parents then attempted to
relinquish custody of her and to terminate their parental
rights and obligations.
At the time of the financial support hearing, I J . R . was
residing at an institution known as the Achievement Home, in
Great Falls. Her cost at the Achievement Home was $ 2 8 . 8 0 per
day (approximately $ 8 7 5 . 0 0 per month). The cost of regular
foster care in a private home would be between $ 3 0 0 and $ 3 5 0
per month. L.R. was placed in the more expensive Achievement
Home because of difficulty finding a foster home for a child
of her age, and because of L.R.'s difficulty in adapting to a
private foster home. In an order entered subsequent to its
original order, the District Court refused to modify L.R.'s
placement in the Achievement Home.
In arriving at its finding that the parents were
financially able to support L.R. in the Achievement Home, the
District Court relied on § 41-3-1124(3), MCA, which provides
in part:
If the court determines that the parents are able
to contribute to the support of the youth . . .,
the court sha.11 issue an order directing the
parents or guardian to make specified payments to
the department to the extent considered appropriate
under the circumstances.
Further, we note in A.R.M. § 46.5.692:
PARENTAL CONTRIBUTION COMPUTATION (1) For purposes
of determining whether a parent is financially able
. .
. to support the child in a youth care facility
and for purposes of determining a recommended
amount of contribution, the department hereby
adopts and incorporates by reference ARM 42.6.101
through ARM 42.6.108, which sets forth the formula
for determining the suggested minimum monthly child
support contribution for purposes of child support
enforcement purposes.
A.R.M. 42.6.101 (4) defines " [mlonthly gross available
resources" as "the sum of monthly income and %% of assets."
From this amount is deducted an allowance for each person
living in the home and financially dependent upon the
parents. The resulting figure is used to determine the
suggested. support contribution.
On this appeal, the parents assert that the District
Court erred by including as income, the wife's "ability to
work" as this is a speculative condition. In its finding of
fact no. 5, the District Court provid-ed: "[W.R.] is not
working at the present time, but has worked in the past."
Finding of fact no. 8 provided: "[A.R. and W.R.1 are
financially able to support the cost of TL.R.'sl placement in
at the Achievement Home based on [A.R. Is] monthly income and
[W.R. Is] ability to work." The parents cite our opinion in
Gall v. Gall (1980), 187 Mont. 17, 20, 608 P.2d 496, 498,
which provides:
[tlhe conditions and circumstar~ces of the parties
must be examined and determined at the time of the
modification hearing, and may not be based upon
mere speculative future conditions or possible
conditions.
We reiterated the point in Duffey v. Duffey (Mont. 1981), 631
P.2d 697, 38 St.Rep 1105, when we vacated an ord.er which
premised increased child support on the speculation that
certain social security benefits "were sure to increase in
the future.l1 While both Gall and Duffey address the child
support obligation between divorced parents, and the present
case involves a child support obligation of parents who are
still married, we see no substantive distinction which would
preclude an analogy to the present case determination that
the amount of support should not be based upon speculative
conditions.
In order to affirm an order of the District Court,
substantial credible evidence must exist in the record
supporting its conclusions. The court concluded. the support
order was based in part on its finding no. 8 of " [W.R. 'sl
ability to work." However, nothing in the record supports
that finding. The only relevant reference is on the parents1
financial statement, which provided: "[A.R.'s] income is our
only income since [W.R.] is not working."
The obligation of support cannot be based upon
speculative conditions. But a parent's ability to contribute
is a legitimate consideration in determining the amount of an
obligation of support. In the present case, the allegations
that W.R. is able to work are not supported by record
evidence, and without more, amount to mere speculation.
We reverse with instructions to conduct a hearing on
W.R.'s ability to contribute to L.R.'s support.
We Concur:
f
Chief Justice
Justices