No. 89-330
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
IN RE THE MARRIAGE OF JULIE R. GRAVELEY,
Petitioner and Respondent,
-v-
CHARLES A. GRAVELEY,
Respondent and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Thomas A. Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
J.C. Weingartner, Helena, Montana
For Respondent:
Robert J. Sewell, Jr.; Smith Law Firm; Helena,
Montana
Submitted on Briefs: June 20, 1990
~ecided: August 20, 1990
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
Charles A. Graveley (Charles) appeals from the valuation of
child support awarded against him in the District Court of the
First Judicial District, Lewis and Clark County. We affirm.
We restate the issues before us as follows:
1. Whether the District Court's award of child support was
in error?
2. Whether the District Court's order of child custody was
in error?
Charles and Julie Graveley were married on February 18, 1984.
They had one child, Morgan, born on October 1, 1984. On October
30, 1986, Julie filed an action for dissolution of the marriage.
The dissolution was granted on January 3, 1989.
Charles is a self-employed lawyer/farmer. He has been
practicing law for more than 15 years. He testified he devotes
approximately equal time to each occupation. The record reveals
that on various loan applications, Charles reported incomes of
$54,800 per year in 1982, $56,580 per year in 1983; and $42,000 per
year in September, 1986. Charles paid $500 per month in temporary
child support prior to the entry of the final decree. Charles
testified that his income over the last year was $3,139, and also
testified that the divorce had resulted in a reduced ability on his
part to work productively, and a consequent reduction in income.
Julie worked as a secretary and was a licensed real estate
agent. The District Court found that Julie had assets of $22,980
and a net monthly income exclusive of child support of $997.08.
2
Child care costs are $240 per month.
The District Court concludedthat Charles1 testimony of annual
income of $3,139 was unbelievable. In its supplemental decree the
District Court ordered Charles to pay child support of $500, and
also ordered each party to pay child care costs of $120. Such
payments are to continue until the child attains the age of 18
years. Charles appeals that decision.
I
Whether the District Court's award of child support was in
error?
Charles maintains that the District Court erred in its
assignment of income to Charles resulting in an inequitable award
of child support. He argues that the District Court failed to
follow the Child Support Guidelines relative to Julie's income.
He further argues that the lower court erred in awarding child care
costs until the child is 18 years old. He maintains that once the
child begins school, the cost of child care will cease and he
should not have to continue to pay such costs.
Julie maintains that 5 40-4-204, MCA, provides the District
Court with the discretion to determine a parent's true disposable
income, and is not bound by income tax returns. She urges that it
is disposable income and not income tax returns alone which must
be considered by a court in determining child support. We agree.
The Child Support Guidelines (1987), 44 St.Rep. 828-842, are
a form of suggestive procedure which is to be applied by the
District Court in the use of its discretion. Absent a clear abuse
of discretion, the District Court will not be overruled. See Gray
v. Gray (1990), 788 P.2d 909, 47 St.Rep. 552. A presumption exists
in favor of the judgment, and the lower court will be reversed only
if appellant demonstrates that there was a clear abuse of
discretion. In re Marriage of Johnson (1987), 225 Mont. 404, 732
In Gray, we held that when determining income under the
Guidelines, it is disposable income of the parent, and not income
tax returns alone, which must be considered by the Court. We
conclude that the District Court did not abuse its discretion. In
reviewing Charles' income, it made the following pertinent
findings:
7.[Charles] contends that only $74,425.00 of his
$554,542.00 in assets as reported on an [sic] March 1988
financial statement furnished in the fall of 1988, must
be recognized under the Support Guidelines adopted by
the Supreme Court. [Charles] has reported to local
financial institutions total assets of $559,135.00 in
September of 1987, $609,197.75 in December 1986, and
$906,635.00 in October 1985. [Charles] claims his
finances have deteriorated due to the impending
dissolution of his marriage.
8. ...[Charles] represents his income over the last
year to be $3,139.00. The court is hard pressed to
believe this figure. [Charles] is a bright, capable
attorney and he can earn a substantial living.
The record before us supports the findings and conclusions of the
District Court. Furthermore, the ~istrictCourt made it very clear
in its supplemental decree regarding child custody and support that
Charles shall pay $500 per month for child support and $120 per
month for child care costs until Morgan is 18 years old.
substantial evidence supports day care costs $240 per month. The
District Court ordered each parent to pay half of that amount, or
$120 per month. We hold that the District Court's award of child
support was proper.
I1
Whether the District Courtts order of child custody was in
error?
After making specific findings that Morgan was in good health,
well adjusted to her lifestyle, and too young to express an opinion
as to her custodial arrangements, the District Court awarded the
parties joint custody of Morgan. Charles was awarded custody on
alternating weekends from 6:00 p.m. on Friday until 6:00 p.m. on
Sunday, plus an additional sixty (60) days during the year at such
times and for such period as the parties shall agree.
Charles maintains that the order tltotallyeliminated any
contact between the father and the child on any holidaystt. He
contends that equity dictates that he be allowed contact at fixed
times during nationally recognized holidays on an alternating basis
with Julie.
Julie points out that Charles exercised visitation with Morgan
only on 35 days out of the 52 days to which he was entitled during
the year preceding the hearing. She maintains that the parties
have handled the alternation of custody in an amicable manner.
Julie provided the District Court with a visitation schedule
for 1988, detailing the date and time Julie left with Charles and
the date and time he brought her back. It reveals that Charles
had Julie with him on Christmas in 1988.
Section 40-4-212, MCA, provides that a district court shall
consider the best interests of the child in determining child
custody. Section 40-4-217, MCA, provides that visitation shall be
reasonable. Substantial evidence in the record supports the award
of custody by the District Court. The record fails to demonstrate
any requirement for change. We conclude there has been no abuse
of discretion. We hold that the order of child custody was proper.
Affirmed.
We Copcur: