NO. 95-271
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
In re the Marriage of
MARY CLAIR WELCH,
Petitioner and Respondent,
VS.
JOHN WILLIAM WELCH,
Respondent and Appellant.
APPEAL FROM: District Court of the Fourteenth Judicial District,
In and for the County of Meagher,
The Honorable Roy C. Rodeghiero, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John L. Hollow, Helena, Montana
For Respondent:
Richard L. Parish, Helena, Montana
Submitted on Briefs: September 21, 1995
Decided: October 24, 1995
Filed:
Justice William E. Hunt, Sr. delivered the Opinion of the Court.
Petitioner Mary Clair Welch (Mary Clair) moved the First
Judicial District Court, Meayher County, to modify the parties'
divorce decree to increase the amount of child support Respondent
John William Welch (John) is required to pay. After a hearing on
her motion, the child support was increased. John appeals.
Affirmed.
ISSUES
The following issues are raised on appeal:
1. Did the District Court err in declining to make specific
findings of fact and conclusions of law?
2. Did the District Court err in failing to use the parties'
current gross incomes in determining child support?
3. Did the District Court err in including in the order
supplemental support for day care and extraordinary medical
expenses?
4. Did the District Court err in refusing to grant John a
variance for long-distance visitation or his higher cost-of-living?
5. Did the District Court err in making the increased
support retroactive to the date of the hearing?
FACTS
John and Mary Clair were married in July 1978 and divorced in
October 1984. They have two children, a 15-year-old son and a 16-
year-old daughter. While their son is healthy, their daughter
suffers from a degenerative neuromuscular disease which has
confined her to a wheelchair and rendered her wholly unable to care
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for herself. John now lives in the Washington, D.C. area, while
Mary Clair and the children continue to reside in Montana.
Pursuant to the settlement agreement entered into by the
parties at the time of their divorce, John was required to provide
child support in the amount of $125 per month for each child. The
record does not state whether the daughter was ill at the time of
the divorce, but does reveal that her condition has been
deteriorating for some years now.
In May 1993, John moved the District Court for modification of
the divorce decree, requesting extended visitation with his son.
(The daughter is unable to travel to John's home for visitation.)
This motion was subsequently granted. In June 1993, Mary Clair
also moved the District Court for modification of the divorce
decree, asking for, among other things, an increase in child
support. The hearing on her motion was continued twice, once at
her request and once at John's, but finally took place on March 1,
1994.
At the hearing, Mary Clair provided the District Court with a
child support worksheet her attorney had prepared, and testimony
was taken from both parties. After the hearing, the District Court
ordered both parties to submit financial information to the Montana
Child Support Enforcement Division so the Division could determine
an appropriate amount of child support. However, the Division
apparently declined to make such a determination. In June 1994,
Mary Clair moved the court to render a decision or reset the matter
for hearing. In April 1995 the District Court issued its order,
3
adopting the figures from Mary Clair's child support worksheet and
increasing the child support accordingly. John appeals from that
decision.
STANDARD OF REVIEW
This Court will review a district court's overall decision on
modification of child support awards to determine whether the court
abused its discretion. In re Marriage of Kovash (1995), 893 P.2d
860, 863, 52 St.Rep. 280, 281. The district court's determination
is presumed to be correct and, absent an abuse of discretion, will
not be disturbed. In re Marriage of Hunt (1994), 264 Mont. 159,
870 P.2d 720. See also In re Marriage of Platt (1994), 267 Mont.
38, 881 P.2d 634; In re Marriage of Sacry (1992), 253 Mont. 378,
833 P.2d 1035; In re Marriage of Parrish v. Appleton (1988), 234
Mont. 345, 763 P.2d 658.
Issue 1
Did the District Court err in declining to make specific
findings of fact and conclusions of law?
The order of the District Court in this matter was not
accompanied by specific findings of fact or conclusions of law.
John contends the lack of specific findings and conclusions is
reversible error.
Rule 52(a), M.R.Civ.P., states that "[flindinys of fact and
conclusions of law are unnecessary on decisions of motions under
Rule I2 or 56 or any other motion except as provided in subdivision
(c) of this rule." Subsection (c) involves judgments at trial and
is inapplicable in this case. This matter was brought before the
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District Court on motion by Mary Clair. Therefore, under Rule
52(a), specific findings and conclusions are not required.
John correctly notes that this Court encourages a district
court to include finding of fact and conclusions of law whenever
practicable. This encouragement, however, does not translate into
an absolute requirement. This Court has found in the past that
specific findings and conclusions are not necessary in certain
child support and custody cases. See In re Marriage of Vinecke
(19861, 221 Mont. 58, 716 P.2d 638; Baker v. Baker (1982), 198
Mont. 371, 646 P.2d 522.
Because the Rules do not require a judge to enter specific
findings of fact and conclusions of law under these circumstances,
it was not an abuse of discretion for the District Court to omit
them.
Issue 2
Did the District Court err in failing to use the parties'
current gross incomes in determining child support?
John alleges the District Court erred in using income figures
from the parties' 1992 tax returns to calculate support. He argues
the court should have employed 1993 income figures or, in the
alternative, should have allowed John to deduct certain moving
expenses and overtime income from the 1992 figures.
The District Court utilized income figures from the last year
for which both parties provided documentation in the form of their
respective income tax returns. That year was 1992. While John did
testify his income for 1993 was lower than that which was reported
5
on his tax return for 1992, his testimony was not corroborated by
his 1993 tax return or any other documentation.
The testimony of any witness is generally sufficient to
establish a fact. & § 26-l-301, MCA; Kovash, 893 P.2d at 864.
However, when the testimony is potentially self-serving, the court
may legitimately expect the witness to offer corroborating evidence
if possible. John offered no such evidence. In this case, the
latest documented income figures available to the court were for
1992. It is not error for a court to use those figures which are
actually before it in order to determine support. Platt, 881 P.2d
at 636. Therefore, the court did not abuse its discretion by
calculating support from the 1992 income figures.
John also argues the court abused its discretion by refusing
to deduct certain moving expenses and overtime pay from his 1992
income before using that amount to figure support.
ARM 46.30.1508 states "'gross income' means income from any
source, except as excluded in subsection (d)." (Enabled by 5 40-5-
209, MCA, emphasis added.) Subsection (d) concerns public
assistance programs, and is not applicable in this case.
Nevertheless, John argues that "gross income" for purposes of
calculating support should not include moving expenses or overtime,
even though such amounts were reported to the federal government as
gross income on his tax return. John offers no case law supporting
his claimed exclusion for moving expenses, nor did he testify at
the hearing as to what specific amount he spent on moving. Given
the lack of precedent or specific testimony, it was not an abuse of
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discretion for the court to refuse to deduct moving expenses from
John's gross income before determining support.
As for the issue of overtime, the District Court did not
consider it because John never raised it. Overtime was not
discussed in the hearing, nor does it appear in any of the court
documents. It was not an abuse of discretion for the court to fail
to grant relief for which John never asked. Further, this Court
will not review an issue which is raised for the first time on
appeal. In re Marriage of Erler (19931, 261 Mont. 65, 862 P.2d 12.
The use of the parties' 1992 gross income, as shown by their
respective tax returns, was not an abuse of discretion.
Issue 3
Did the District Court err in including in the order
supplemental support for day care and extraordinary medical
expenses?
John alleges that the District Court erred by ordering him to
pay additional support for day care and extraordinary medical
expenses. John argues that Medicaid pays for all medical expenses
and that day care expenses are avoided by having the son care for
the daughter.
Mary Clair testified she receives Medicaid money for respite
care, but she also testified that such money specifically may not
be used to pay for child care during the hours when she is at work.
Mary Clair works full time. Her daughter needs constant
supervision and care. It was not an abuse of discretion for the
court to expect John to assist with the cost of that care,
regardless of his son's contributions.
The court also ordered John to contribute each month towards
extraordinary medical expenses. Mary Clair testified that their
daughter incurs extra expenses, such as the cost of repairing the
wheelchair lift which provides the daughter with access to and from
the family home. John may reasonably be required to pay a given
amount towards such expenses. The court did not abuse its
discretion by including in the order supplemental support for day
care and extraordinary medical expenses.
Issue 4
Did the District Court err in refusing to grant John a
variance for long-distance visitation or his higher cost of living?
John alleges that he was entitled to a variance in his child
support obligation because of the expenses he incurs due to long-
distance visitation and the higher cost of living in Washington,
D.C.
In discussing child support obligations, a "variance" is a
reduction in support granted to one party due to extraordinary
expenses. John contends he should have been granted a variance for
long-distance visitation, long-term visitation, and the fact that
it cost more to live in Washington, D.C. than it does to live in
Montana. All of these factors are acceptable reasons for the
granting of a variance. Section 40-5-209, MCA.
Support awards determined under the Montana Child Support
Guidelines are presumed to be correct, but this presumption may be
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rebutted by evidence that a child's needs are not being met. In
order to rebut the presumption, the party seeking the variance must
present competent evidence showing that application of the
guidelines would be unjust or inappropriate. Such evidence may
include documents such as a financial affidavit and a child support
worksheet. Section 40-5-209, MCA.
While it is true in this case that John requested a variance
at the hearing, he offered no documentation regarding the cost of
living or the costs of travelling for visitation. He did testify
that in his opinion it was "at least 200 percent" more expensive to
live in Washington, D.C. than it was to live in Montana. This
opinion was not substantiated by any concrete evidence.
This Court faced a similar situation in In re Marriage of Nash
(19921, 254 Mont. 231, 836 P.2d 598. In that case, the appellant
alleged that the district court's failure to grant a variance for
the higher cost of living in Alaska was an abuse of discretion.
But this Court found:
[Appellant] introduced no statistical data to support his
claim that the cost of living adjustment in Alaska is 70
percent higher than in Montana. Nor did he cite specific
examples of increased cost, other than transportation.
The District Court was free to disregard his
unsubstantiated estimate.
Nash
-r 836 P.2d at 601. In order to receive a variance, John was
required to present competent evidence showing why he was entitled
to one. A bare claim of entitlement alone is not enough.
We have already stated that when a party alleges that a
variance in living expenses is due, the party must submit
competent evidence to prove that the amount of support
should be reduced . . We conclude that without a proper
foundation for the alleged amount of variance, the court
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did not abuse its discretion in failing to subtract these
amounts from [the award].
Platt
-I 881 P.2d at 636-37. Because John submitted no competent
evidence regarding his request for a variance, the District Court's
refusal to grant one was not an abuse of discretion.
Issue 5
Did the District Court err in making the increased support
retroactive to the date of the hearing?
In its order of April 1995, the District Court made the
increased support retroactive to the date of the hearing, which was
held in March 1994. John alleges the District Court abused its
discretion by making the award retroactive.
"Whether child support is awarded retroactively to the date of
notice of a motion for modification is clearly within the
discretion of the district court." In re Marriage of Hill (1994),
265 Mont. 52, 57, 874 P.2d 705, 707, citing In re Marriage of Fronk
v. Wilson (1991), 250 Mont. 291, 297, 819 P.2d 1275, 1279. See
also Nash
- I 836 P.2d 598; In re Marriage of Gebhardt (1989), 240
Mont. 165, 783 P.2d 400; and In re Marriage of Saylor (1988), 232
Mont. 294, 756 P.2d 951.
The court found Mary Clair needed additional support to meet
the expenses related to the care of her children. These expenses
did not begin after the court entered its order, but were being
incurred since the filing of the petition, if not before. "There
is no reason to distinguish between the support necessary after the
court's order and the children's needs from the time of [the1
petition until the order was entered." Hill
-r 874 P.2d at 709.
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John's arguments that such an award is inappropriate because
it places upon him a sudden and significant debt, as well as the
potential stigma of a "dead-beat dad," are unpersuasive. For years
John has contributed $250 per month towards the care of his
children, leaving Mary Clair responsible for all additional costs.
If he were not made to contribute the greater support until after
the order was entered, it would mean another thirteen months during
which Mary Clair must pay most of the costs of child care. His
understandable reluctance to be saddled with a significant debt
nevertheless does not justify placing this additional burden on
Mary Clair. Any stigma which might attach, while unfortunate, is
beyond the control of the courts. In any case, the stigma
presumably will be removed once the debt is paid.
Since the ability to grant retroactive support is entirely
discretionary, the District Court's decision was not an abuse of
discretion.
Affirmed.
We Concur:
/--/ Chief Justice
October 24, 1995
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
JOHN L. HOLLOW
Attorney at Law
318 East 6th Avenue
Helena. MT 59601
John William Welch
Attorney at Law
5838 Bridgetown Court
Burke, VA 22015
RICHARD L. PARISH
Attorney at Law
800 E. Sixth Ave.
Helena, MT 59601
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA