NO. 88-502
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
IN RE THE MARRIAGE OF
KATHLEEN LOIS PENNING,
Petitioner and Respondent,
and
DALE EVERETT PENNING,
Respondent and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Russell Fillner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Andrew M. Small, ~illings,Montana
For Respondent:
,.Jack E. Sands; Sands Law Firm, Billings, Montana
Submitted on Briefs: June 1, 1989
--
L- .- --I
J
,
Decided: June 30, 1989
i'
' Clerk
Mr. Justice R. C. McDonough delivered the Opinion of the
Court.
This appeal from the Thirteenth Judicial District,
Yellowstone County, concerns issues arising from the divorce
of Kathleen and Dale Penning. Dale appeals the District
Court's decisions on custody, the proper amount of child
support and maintenance, and the propriety of an award of
attorney fees to Kathleen. We affirm.
The parties married on March 27, 1981. The District
Court dissolved the marriage on April 21, 1988. Four
children, aged from one year old to six years old, were born
of the marriage. Kathleen also has an eight-year-old child
from a prior marriage.
Dale contracts work at the Exxon refinery in Billings,
and receives approximately $47,000 annually. Dale employs a
person he describes as a close friend for unskilled or
semi-skilled labor at $12.50 an hour. The parties dispute
the net income retained by Dale from the $47,000 in earnings.
Kathleen has performed only unskilled labor in the past,
and currently has no special skills which would enable her to
take a job that would adequately cover her child care
expenses. The primary caretaker of the parties children has
been Kathleen. The lower court awarded Kathleen $260.00 per
month, per child in child support, and $400.00 per month in
maintenance. The lower court also named. Kathleen the
residential custodian of the parties' children.
Dale presents the following issues:
(1) Whether the District Court erred in naming Kathleen
residential custodian?
(2) Whether the District Court erred in awarding
Kathleen $260.00 per month per child for child support?
(3) Whether t h e District Court erred in awarding
maintenance t o Kathleen?
(4) Whether t h e D i s t r i c t Court erred in awarding
a t t o r n e y f e e s t o Kathleen?
I.
Dale makes several contentions on the issue of the
p r o p e r r e s i d e n t i a l p a r e n t f o r implementing t h e j o i n t custody
provisions of the decree. First, Dale contends that the
District Court f a i l e d t o consider t h e presence of physical
a b u s e o f t h e c h i l d r e n i n f l i c t e d by K a t h l e e n a s by r e q u i r e d by
§ 40-4-212 ( 6 ) , MCA. Testimony i n d i c a t e d t h a t K a t h l e e n h a s ,
on o c c a s i o n , s l a p p e d o r spanked t h e c h i l d r e n . Testimony a l s o
i n d i c a t e d t h a t some o f t h e c h i l d r e n h a v e s u f f e r e d from d i a p e r
rash, and t h a t o n e c h i l d , w h i l e l e f t u n a t t e n d e d by K a t h l e e n ,
f e l l from t h e p a r t i e s ' van t o t h e pavement. The o n l y o t h e r
incident of a l l e g e d a b u s e i n v o l v e s p u n i s h m e n t meted o u t by
K a t h l e e n f o r two o f t h e c h i l d r e n ' s b e h a v i o r i n p l a y i n g w i t h
dog f e c e s . Kathleen t e s t i f i e d t h a t t h e p a r t i e s ' dog messed
on the floor of their basement. Her two young boys
discovered the m e s s and, according t o Kathleen, managed t o
become c o v e r e d w i t h i t . K a t h l e e n t e s t i f i e d t h a t s h e smeared
some o f t h e m a t t e r on t h e i r n o s e s and made them s t a n d i n t h e
corner f o r f i v e minutes.
We hold that the District Court acted within its
discretion by refusing to find that these incidents
c o n s t i t u t e d c h i l d abuse. Thus, no e r r o r may b e p r e d i c a t e d
h e r e b a s e d on t h e r e q u i r e d f i n d i n g s u n d e r 5 4 0 - 4 - 2 1 2 ( 6 ) , MCA.
Dale further contends that the lower court committed
reversible e r r o r i n finding:
[ K a t h l e e n ' s ] home and i n t e r a c t i o n w i t h t h e c h i l d r e n
h a s been o b s e r v e d by a number o f w i t n e s s e s . A l l of
whom t e s t i f i e d t h a t s h e i s a aood m o t h e r .
Dale points out that not - of the witnesses testified that
all
Kathleen was a good mother. We disagree that the District
Court erred in interpreting the testimony of the witnesses.
Witnesses testifying for Dale criticized Kathleen's
parenting skills. However, they also admitted that Kathleen
had good abilities in some areas of parenting. Moreover,
even if all of Dale's witnesses testified that Kathleen was
not a good mother, other witnesses held the opposite opinion.
Thus, the record would only reflect conflicting evidence on
this issue, and it is the function of the District Court to
resolve such conflicts. We will not reverse the decision of
the District Court on what constitutes a custody arrangement
in the best interest of the children based on the proper
weight assigned to conflicting evidence. In re Marriage of
Rolfe (19851, 216 Mont. 39, 45, 699 P.2d 79, 82. Nor will we
reverse for incomplete or partially erroneous findings unless
appellant demonstrates the District Court failed to base its
decision on substantial evidence. In re Marriage of Saylor
(Mont. 1988), 756 P.2d 1149, 1151, 45 St.Rep. 1062, 1065.
Dale also contends that the lower court erred in relying
on a report from a Court Services Investigator in its
findings because the report was never admitted into evidence.
Kathleen responds that Dale stipulated to a Court Services
investigation which was to "make appropriate recommendations
to the Court." We agree that Dale's stipulation to the
report properly places it in the record as evidence.
Dale asserts that his citations to the record show that
substantial evidence does not support the District Court's
decision to make Kathleen the residential parent. We
disagree.
By and large, witness testimony supports the conclusion
that the best interests of the children will be served by
making Kathleen the residential custodian. Several witnesses
testified favorably concerning Kathleen's parenting s k i l l s .
One s t a t e d :
Q. Have you had o c c a s i o n t o be i n h e r home?
A. Yes. On s e v e r a l o c c a s i o n s I have v i s i t e d
h e r home.
Q. And have you o b s e r v e d h e r and h e r c h i l d r e n
i n h e r home?
A. Yes, q u i t e o f t e n .
Q. Could you d e s c r i b e t h e home environment
there?
A. Well, y e s . I t always s t r i k e s me t h a t it
i s a very d i f f i c u l t s i t u a t i o n t h a t she i s i n . She
had t h e f i v e c h i l d r e n , and it always s t r u c k me how
remarkably s h e c o n t r o l l e d t h a t .
Another w i t n e s s e s t e s t i f i e d :
Q Could you d e s c r i b e the relationship
between Kathy and h e r c h i l d r e n ?
A. They seem t o be v e r y c l o s e . I d o n ' t know.
She was j u s t a r e a l good mother.
Some w i t n e s s e s h a v i n g knowledge o f Dale's parenting skills
indicated that Dale d i d n o t p r o v i d e adequate c a r e for the
children. Therefore, t h e d e c i s i o n of t h e D i s t r i c t C o u r t on
t h e r e s i d e n t i a l p a r e n t i s s u p p o r t e d by s u b s t a n t i a l e v i d e n c e
and we a f f i r m on t h i s i s s u e .
11.
Dale asserts that the District Court erred in
determining the amount o f c h i l d support. The lower court
calculated Dale's support obligation as $260.00 per child
e a c h month.
In determining Dale's gross income, the District Court
refused to deduct the $ 1 2 . 5 0 per hour, 2 0 hours per week,
employment expenses Dale incurs for employing his close
friend. The lower court allowed such expenses at $ 5 . 0 0 per
hour. This is the main objection to the lower court's
calculations in arriving at Dale's net income for determining
child support. We hold that the lower wage figure properly
reflects evidence in the record that the unskilled or
semi-skilled labor performed by Dale's close friend is worth
only $ 5 . 0 0 per hour. Thus, the lower court acted correctly
in discounting Dale's assertions to the contrary.
Dale also objects to the addition of workers'
compensation benefits as income for determining his ability
to make support payments. He claims that he no longer
receives the benefits. Kathleen asserts that the issue is
not properly reviewable on this appeal. We agree that the
existence of a reduction in Dale's income following the
proceedings in the lower court cannot be considered as an
issue reviewable on this appeal.
Dale also objects generally to the lower court's award
of support in light of the Guide for Determination of Child
Support Obligations, adopted and approved for use by district
courts by this Court on January 13, 1 9 8 7 . Dale claims that
the District Court misapplied the Guidelines by failing to
subtract the proper amount of his business expenses from his
gross income to arrive at his net income. Kathleen responds
that under the proper application of the Guidelines, Dale's
support obligations would exceed the amount arrived at by the
lower court.
The Guidelines mandate that only "legitimate" business
expenses be subtracted to arrive at net income. Guide for
Determination of Child Support Obligations, Part 5 . As
previously discussed, there exists some controversy over the
proper amount of legitimate expenses incurred by Dale.
Moreover, the Guidelines:
are not binding upon such judges and officials
[using the guidelines]. We so order to prevent
appeals based upon claimed failure to observe or
follow the guidelines.
In the Matter of Adoption of a Uniform District Court Rule on
Child Support Guidelines, Order of the Supreme Court of
Montana, No. 86-223, Filed January 13, 1987. Obviously,
there exists no reversible error based on the improper use of
the Guidelines here. Thus, we affirm on this issue.
111.
Dale contends under this issue that the lower court
erred in setting the amount of maintenance to be received by
Kathleen at $400.00 per month. According to Dale, the lower
court erroneously failed to consider Dale's ability to "meet
his needs while meeting those of the spouse seeking
maintenance," as required by S 40-4-203(2)(f), MCA.
The thrust of Dale's argument on this point is that the
lower court erred in increasing the amount of available
income for maintenance by finding that Dale was sharing
expenses with the close friend he employs for $12.50 an hour.
Dale contends that evidence in the record demonstrated that
he and the friend do not share expenses. We disagree. At
the trial, one of Dale's witnesses testified that he had
stayed with Dale the weekend prior to the trial, and that
Dale's close friend was present in the household during the
weekend. Another witness testified that while on visitation
with Dale, the children have gone from Dale's close friend's
house to his house to play. This testimony is sufficient to
sustain the District Court's conclusion that Dale and his
close friend/employee share expenses.
Dale also objects to the lower court's decision on the
ability of Kathleen to provide for the children's financial
needs. The record does not contain evidence sufficient to
support this assertion. On the contrary, evidence indicates
Kathleen is patently unable to hold down a job which would
bring in income sufficient to reduce Dale's obligation.
Thus, we reject Dale's contentions on this issue.
IV.
Dale argues that the District Court abused its
discretion by awarding attorney fees to Kathleen. Again, the
focus of the argument concerns Dale's finances, this time in
regard to his ability to pay the fees. We have already held
that the District Court acted within its discretion in
determining Dale's income. Thus, we affirm.