NO. 91-627
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
IN RE THE MARRIAGE OF
J. SPENCER WEED, 111,
Petitioner and Respondent,
and
KAREN M. WEED,
Respondent and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake,
The Honorable C. B. McNeil, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James P. OtBri r
en, OIB ien Office, Missou
Montana
For Respondent:
Keith W. McCurdy, McCurdy Law Firm, Polson,
Montana
Submitted on Briefs: May 21, 1992
-
b , L ' ~ g 1992
Decided: August 6, 1992
..
,
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Appellant Karen M. Weed appeals from a decree of dissolution
entered in the Twentieth Judicial District Court, Lake County.
We affirm in part and reverse in part.
The issues raised by appellant for our consideration are as
follows:
1. Did the District Court err in its computation of child
support?
2. Did the District Court err in the division of the marital
estate?
3. Did the District Court err in the award of maintenance to
appellant?
The parties were originally married in 1969. Prior to the
marriage, the parties entered into an antenuptial agreement. The
marriage ended in dissolution on December 11, 1972. The parties
remarried on March 23, 1973, and entered into a second antenuptial
agreement. Both antenuptial agreements were essentially the same.
Two children were born duringthe second marriage--Barbara, age 15,
and Douglas, age 7.
Respondent J. Spencer Weed began his own cattle ranch in 1967
which he expanded to approximately 2800 acres prior to the parties'
second marriage. The ranch is currently being leased to two
individuals. The income from the leases amounts to approximately
$12,000 annually. In addition to the ranch, Spencer's property
consists of a savings account, a gun collection, and miscellaneous
property. Finally, Spencer is a contingent beneficiary of two
trusts. The current value of the 1923 trust is approximately $1.3
million, while the 1929 trust is valued at about $1.4 million.
Currently, his 83-year-old mother is the beneficiary of these
trusts.
At the time of trial, Karen was 41 years old and Spencer
was 51. Spencer is in general good health, but does suffer from
alcohol abuse and is hearing impaired. Karen suffers from chronic
low back pain and respiratory infections. The parties' oldest
child has a form of epilepsy which requires constant medication and
monitoring by a neurologist. Both parties are capable of working
at minimum wage level jobs, but are unemployed and Karen is
currently receiving monthly AFDC benefits in the amount of $390.
It is unclear from the record whether the parties' daughter is
receiving state medical assistance.
On March 15, 1990, Spencer filed a petition for dissolution.
Pursuant to a motion, the court granted partial summary judgment
relating to the disposition of the marital estate. The court ruled
that pursuant to the 1973 antenuptial agreement the parties were to
retain their own real and personal property owned prior to the
second marriage. In effect, this order barred Karen from asserting
any claim to the ranch and the two trusts. Karen does not
challenge the validity of the order in her appeal.
On September 23, 1991, the District Court conducted a hearing
concerning the distribution of the remaining marital estate, child
custody and support, and maintenance. On November 14, 1991, the
court issued its findings of fact and conclusions of law and
decree. It is from this order that Karen appeals.
I.
Did the District Court err in its computation of child
support?
In its findings of fact, the court ruled that both Karen and
Spencer were capable of minimum wage employment. In the child
support guidelines work sheet, the District Court imputed to Karen
a yearly minimum wage of $8840, based on its finding that she was
capable of minimum wage employment. The court imputed a yearly
wage of $12,116 to Spencer, based on his income derived from the
ranch leases. Unlike its treatment of Karen, the court did not
impute income from minimum wage to Spencer and offers no
explanation for the disparate approach. Based on these figures,
the District Court ordered that Spencer pay $247.25 per month in
child support for both children and ordered that both Spencer and
Karen share equally in the health expenses of the children.
Our standard of review in reviewing child support is that a
presumption exists in favor of the district court determination,
and this court will reverse the district court only if it has
abused its discretion. In re Marriage of Sacry (Mont. 1992), -
P.2d , 49 St. Rep. 452.
Section 40-4-204(3)(a), MCA, provides that:
Whenever a court issues ... an order concerning
child support, the court shall determine the child
support obligation by applying the standards in this
section and the uniform child support guidelines adopted
by the department of social and rehabilitative services
. , . unless the court finds by clear and convincing
evidence that the application of the standards and
guidelines is unjust to the child or to any of the
parties or is inappropriate in that particular case.
Section 46.30.1513 (1)(a), A.R.M., of the guidelines defines
gross income for child support as:
[Ilncome from any source, except as excluded below, and
includes but is not limited to income from salaries,
wages, commissions, bonuses, dividends, severance pay,
pensions, interest, trust income, annuities, capital
gains, social security benefits, worker's compensation
benefits, unemployment benefits, gifts and prizes and
alimony or spousal maintenance.
Section 46.30.1513 (1)(b), A.R.M., defines "imputed income" as
income from a parent who is either voluntarily unemployed or
underemployed, and that income may be imputed to the parent based
on the parent's ability or capacity to earn net income.
Because of the guidelines definition of gross income and
imputed income, Spencer's income derived from leasing his ranch was
was appropriately considered by the court as gross income for the
purposes of calculating child support. In addition, while the
District Court concluded that Spencer was capable of minimum wage
employment, it failed to offer any explanation as to why it did not
impute this income to Spencer for child support purposes while at
the same time imputing the income to Karen. Because the court
found that Spencer was capable of minimum wage employment, we hold
that the court should have imputed this income for calculating
child support. See generally, In re Marriage of Chivaro (1991),
247 Mont. 185, 805 P.2d 575. We hold that the District Court
abused its discretion in not imputing to Spencer a yearly minimum
wage for the purpose of calculating child support.
Karen also contends that the District Court abused its
discretion in directing that the parties share equally in the
health expenses of the children because it did not consider the
children's extraordinary medical expenses. The parties' oldest
child suffers from a form of epilepsy which requires constant
medication and specialized monitoring. Karen is receiving AFDC
benefits in the amount of $390 a month, as well as tapping into the
oldest child's savings account for income.
The child support guidelines delineate how a district court
should proceed for extraordinary medical expenses which are likely
to recur on a periodic basis. The expense should be prorated
between the parents and added to supplement the child support
obligation. Section 46.30.1525(~), A.R.M. Determining the amount
to be paid can be accomplished by adding a monthly average of past
expenses if future costs are comparable. Section 46.30.1525(c)(i),
A.R.M.
The District Court did not make any finding regarding the
oldest child's medical condition or the extraordinary medical
expenses that will probably be incurred in the future. We hold
that the District Court abused its discretion and erred in the
calculation of child support.
11.
Did the District Court err in the division of the marital
estate?
Recently we have clarified our standard of review regarding
the distribution of the marital estate. Our standard of review in
the division of marital property is whether the district court's
division of the marital estate is clearly erroneous. Sacry, 49 St.
Rep. 452.
In granting Spencer's motion for partial summary judgment on
the question of the validity of the 1973 antenuptial agreement, the
court awarded the parties their own real and personal property
acquired prior to the marriage. The effect of this order allowed
Spencer to retain his 2800 acre ranch. The court determined in the
decree that the value of the parties' marital estate amounted to
$36,669, which consisted of an extensive list of personal property.
Spencer submitted a list of property that was to be divided by the
parties. The record reflects that in response to the court's
February 13, 1991, order, Karen's list of proposed property
distribution, with some minor exceptions, is similar tothe court's
distribution of the marital estate.
Karen also contends that the District Court failed to consider
Spencer's expectation as a contingent remainderman in an
inheritance when determining the division of the marital estate.
Generally, under 5 40-4-202 (I), MCA, the court must consider future
acquisition of assets in proceedings to divide marital property
following dissolution of marriage, and failure to so may result in
error. In re Marriage of Alt (1985), 218 Mont. 327, 708 P.2d 258.
Under the facts of this case, the court ruled that the 1923 and
1929 trusts were premarital property and were governed by the terms
of the court's partial summary judgment order, and thus excluded as
a marital asset. In addition, Spencer does not have a present
vested interest in the trusts and will not have an interest in the
trusts unless he survives his mother. If he should die before his
mother, then the benefits of the trust will pass on to the two
children. We hold that the division of the marital estate was
supported by substantial evidence and that the District Court did
not err in the division of the marital estate.
111.
Did the District Court err in the award of maintenance to
appellant?
Recently we have stated that our standard of review in
maintenance award cases is whether the district court's findings of
fact are clearly erroneous. In re Marriage of Eschenbacher and
Crepeau (Mont. 1992), - P.2d , 49 St. Rep. 393. A district
court may award maintenance after the marital property has been
equitably divided pursuant to 5 40-4-202, MCA, and the court has
properly applied the criteria of 5 40-4-203, MCA.
In this instance, Karen requested a monthly maintenance award
of $200. The District Court divided the only cash asset available
to the parties and awarded Karen a $13,519.35 lump sum maintenance
payment. This amounts to $200 a month for five and one-half years.
The court considered the ability of Spencer to meet his own needs
while meeting the needs of Karen. Spencer is currently unemployed
and receives approximately $1000 a month from leasing his ranch and
has been awarded the marital debt. We hold that the District Court
did not err in granting Karen a lump sum maintenance award.
We remand this matter to the District Court for further
proceedings in accordance with this opinion.
We concur: