No. 87-63
IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA, by and through
the DEPARTMENT OF REVENUE, ex rel.,
TAMMY J. SORENSBN, an adult and
JASON RICHARD SORENSE?N, a Child,
Petitioners and Respond-ents,
-vs-
RICHARD M. ROSKE,
Respondent and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Henry J , o h l e , Judge presiding.
COUNSEL OF RECORD:
For Appellant:
J. Mayo Ashley, Helena, Montana
For Respondent t
Nina Vaznelis, Helena, Montana
Kelly O'Sullivan, Child Support Enforcement Program,
Helena, Montana
---- - -
Submitted on Briefs: Sept. 3, 1987
Decided: November 10, 1987
*
4
- e
- -
Clerk
Mr. Justice R. C. McDonough delivered the Opinion of the
Court.
This dispute concerns the assessment of costs and
support in an action to establish paternity. Appellant Roske
challenges the District Court's award of $486.50 per month in
child support, and the District Court's award of guardian ad
litem fees. Roske also challenges the lower court's
visitation provisions. We affirm.
The order of the District Court of the First Judicial
District dated November 17, 1986, settled the rights and
obligations of Roske, the father, and Sorenson, the mother,
in regard to the parties' child. Prior to the order Roske
(1) had not visited with or had contact with the child, (2)
paid no expenses incident to the pregnancy of Sorenson and
her period of confinement, and (3) paid no support for the
child.
The parties established a relationship in 1983 when
Roske's job brought him to Helena to work on a temporary
basis. Roske resides with his wife and their two children
near Missoula, but the work in the Helena area brought him in
contact with Sorenson regularly from 1983 to 1984. Sometime
in the fall of 1984 Sorenson became pregnant. She informed
Roske, and in March of 1985 they broke off the relationship.
Until February of 1985 Sorenson worked as a nurses aid.
Health problems resulted from the pregnancy however, and! in
February of 1985 she heeded the advice of her Doctor and quit
her job. To support herself she applied for and received
income from the Aid to Families with Dependent Children
program. The State brought this action to establish Roske's
liability for support of the child.
In response to the State's petition, Roske denied
paternity. The parties submitted to blood testing and the
results showed that there was a 9 9 . 1 4 percent probability
that Roske fathered the child. Following the testing the
District Court held a pretrial conference and recommended
that Roske acknowledge paternity. Roske refused, and a trial
followed. The District Court's order is based on trial
testimony and documentary evidence submitted by the parties.
Roske presents the following issues for review:
(1) Did the lower court rely on the proper guidelines i.n
arriving at a figure for support, and is that figure
excessive?
(2) Did the lower court abuse its discretion by assessing
guardian ad litem fees against appellant under the court's
inherent equity powers, and as a sanction under Rule 1.1,
(3) Did the lower court abuse its discretion by attaching
conditions to appellant's visitation?
ISSUE --1: Roske claims that the lower court's support
award of $ 4 8 6 . 5 0 per month is excessive. Roske also claims
that under the Carlson formula, his support obligation totals
only $ 3 4 6 . 7 4 .
The legislature has decided the proper guide1.ine.s for
determining the amount of support in a paternity action. See
S 40-6-116(5), MCA. The statute requires the District Court
to consider:
la) the needs of the child;
Ib) the standard of living and circumstances of
the parents;
(c) the relative financial means of the parents;
Cd) the earning ability of the parents;
(el the need and capacity of the child for
education, including higher education;
If) the age of the child;
(g) the financial resources and the earning
ability of the child
(h) the responsibility of the parents for the
support of others; and
(i) the value of services contributed by the
custodial parent.
The District Court's findings adequately address the
statutory criteria set out above. For example, in regard to
subsection (a), the lower court found that the child lacked
many things that other children take for granted, and that
the mother set the monthly needs of the child at $725, and
that the father set the monthly needs of the child at
$436.50. In regard to subsections (b), ( c ), (d), and (h),
the lower court found that the mother has been an indigent,
that she is currently enrolled in Carroll College's nursing
program, that she plans to support herself and her
educational pursuits with grants, student loans, and work
study income, and that currently her earning ability is
somewhere in the range of $4.00 per hour. In regard to the
father cn subsections (b), (c), (d), and ( h ) , the lower court
found that the father is employed as a master plumber and
supervisor, that his income exceeds the monthly needs of his
family in Missoula by $1038, and that he has many assets
including; real property in the Missoula area, an $l8,OOO
travel trailer, an $89,000 pension fund, and polo horses.
We will not overturn a support award absent a c1ea.r
abuse of discretion resulting in substantial injustice. In
re the Marriage of Jacobson (Mont. 1987) , - P. 2d - 1 -I 44
St.Rep. 1678, 1680. Substantial evidence from the record
supports the lower court's findings. Thus, the District
Court acted within the discretion afforded by 5 40-6-116(5),
MCA, and we will not disturb its award of support.
In regard to Roske's contentions on the application of
the Carlson formula, at trial Roske admitted that his own
estimate of $436.50 for the child's monthly needs failed to
provide an adequate amount for recreation and other expenses.
Ne~rertheless, he contends on appeal that the lower court
erred because under the -
Carlson formula his obligation should
total only $346.74.
The Carlson formula serves as a guideline for arriving
at a fair allocation of support between husband and wife in
an action brought under S 40-4-204, MCA. The considerations
for arriving at a support award in a paternity action as set
out in 5 40-6-116, MCA, vary slightly from the factors
contained in 5 40-4-204, MCA. However, both statutes
emphasize earning capacity as a yardstick for arriving at an
equitable allocation of the child's expenses. Thus, a
district court could apply the formula and remain within the
bounds of discretion provided by 5 40-6-116(5), MCA.
In this case, we hold that the District Court did not
abuse its discretion by failing to follow the formula. The
--
equation from Carlson "is a guideline, and not mandatory."
[Emphasis in original.) Jacobson, 44 St.Rep. 1678, 1681.
And, as with support awarded pursuant to 5 40-4-204, MCA, the
lower court may "fashion support orders to fit the exigencies
of the case." -----.
Jacobson, 44 St.Rep. at 1681. At any rate, as
Roske concedes in his brief, if the child's needs totaled
$725 per month as contended by Sorenson, the Carlson formula
would render a support obligation for Roske which exceeds the
current obligation of $486.50. Given this calculation, and
Roske's ad.mission that his needs figure was low, the District
Court acted within its discretion by refusing to empl-oy
Roske's needs figure to calculate a lower support award under
the Carlson formula.
JSSUE 2: Roske contends that the lower court erred by
assessing guardian ad litem fees against him because the
child did not need an attorney. Roske also contends that
Rule 11, M.R.Civ.P., cannot be used to impose the fees as a
sanction. Sorenson responds that the fee assessment is
justified under Rule 11, and under the lower court's inherent
equity powers. See In re the Marriage of Hereford (Mont.
1986), 723 P.2c? 960, 43 St.Rep. 1508. F e will not disturb
7
the District Court's conclusion in regard to the fees if it
is correct on either theory. Norwest Bank Billings v.
Murnion (Mont. 1984), 684 P.2d 1067, 1071, 41 St.Rep. 1133,
1136.
In this case, the fees are justified under Rule 11,
M.R.Civ.P., because the record supports the lower court's
finding that Roske's claims and defenses were made in bad
faith. After the blood test showed a 99.14 percent
probability that Roske fathered the child, the parties filed
a pretrial order. In the order Roske denied paternity. At
trial Roske admitted that he believed he fathered the child,
but stated that he continued to resist legal acknowledgement
of paternity to gain leverage on the support issue. At trial
Roske also admitted that he undervalued property in his
financial declaration, and that he underestimated the child's
needs in his needs statement.
Rule I1 of the Kontana Rules of Civil Procedure may be
employed to assess costs against a party who needlessly
delays the court's decision by bad faith pleading. Attorney
fees are mentioned in Rule 11 as one of the costs which may
he assessed. According to the Federal. corrmentators, the rule
is designed to force pleaders to make a reasonable inquiry
into the truth of a statement made in a paper filed with the
court. Fed. R. Civ. P. 11 advisory committee note. The
standard used to judge the inquiry is reasonableness under
the circumstances. Fed. R. Civ. P. 11 advisory committee
note. In this action, Roske's bad faith paternity defense
and low property valuations were contained in papers filed
with the court. His own testimony shows that he did not have
a reasonable belief that the allegations were true.
Therefore, the District Court acted within its discretion by
finding that Roske violated Rule 11, M.R.Civ.P. Since this
finding sufficiently supports the award, we will not consider
whether the rationale for fees from Hereford is applicable tc
this case.
Roske also claims that the child had no need of
representation, and therefore he should not have to pay the
fees. Section 40-6-110, MCA, requires representation of
children under the age of majority in a paternity action.
Thus, the lower court's decision to provide an attorney
fulfills the statutory mandate, and Roske's argument lacks
merit.
ISSUE 3: This Court has held that the district court in
a paternity action should be guided by the child's best
interest when decreeing visitation rights. Schuman v.
Bestrom (Mont. 1985), 693 P.2d 536, 539, 42 St.Rep. 52, 58.
In this case, the District Court found that Roske was a
complete stranger to the child, but that visitation with
Roske was in the child's best interest if the visitation was
subject to reasonable limitations on time, place, and persons
present as may be set by Sorenson until a parental
relationship is established between the child and the father.
Roske claims that this finding gives Sorenson too much
control over visitation. Roske also claims that the finding
restricts visitation and thus violates S 40-4-217, MCA,
because no showing that the restriction is necessary to
protect the child's physical, mental, moral or emotional
health has been made.
First, in regard to whether or not 40-4-217, MCA,
requires a showing of endangerment, this Court has
distinguished between reduction of visitation and supervision
of visitation. See In re the Marriage of Hickey (Mont.
1986), 689 P.2d 1222, 1225, 41 St.Rep. 1931, 1935; Jacobson,
44 St. Rep. at 1681.. In this case, as in Hickey and
Jacobson, we will not interpret 5 40-4-217, MCA, so narrowly
that the District Court is unable to fashion visitation
provisions reflecting the child's best interest. Thus, the
District Court's decision to require that Roske establish a
relationship with the child before beginning more liberal
visitation does not violate § 40-4-217, MCA.
Roske contends that the District Court, rather than
Sorenson, should decide the reasonable times, places, and
persons present for visitation. The order in this case
requires Sorenson to reasonably arrange visitation. In the
absence of a showing that Sorenson is likely to unreasonably
limit visitation, we find no clear error, and the lower court
must be affirmed. See In re the Marriage of Revious ( 1 9 8 7 ) ,
735 P.2d 303, 305, 44 St.Rep. 674, 676.
We Concur:
1,/
-,'