In Re the Marriage of Kovash

No. 94-500
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995

IN RE THE MARRIAGE OF
KATHLEEN A. KOVASH,
Petitioner and Respondent,
and
MYRON J. KOVASH,
Respondent and Appellant.

APPEAL FROM: District Court of the Eighteen Judicial District,
In and for the County of Gallatin,
The Honorable Thomas Olson, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Mark P. Yeshe, Attorney at Law, Helena, Montana
For Respondent:
Derik Poyroy, Attorney at Law, Bozeman, Montana
Justice W. William Leaphart delivered the Opinion of the Court.

Myron J. Kovash (Myron) appeals from an order of the
Eighteenth Judicial District Court, Gallatin County, which assessed
Myron an arrearage in his child support obligation and his
children's uncovered medical expenses, and modified his prior child
support obligation to Kathleen A. Kovash (Kathleen). We affirm in

part, reverse in part and remand.
We address the following issues on appeal:
1. Did the District Court err in determining the amount of
Myron's arrearage?
2. Did the District Court err by failing to give Myron credit
for his payment of the children's health insurance premiums?
3. Did the District Court err by ordering that the assessed
arrearage may be collected by the Child Support Enforcement
Division (CSED)?
4. Did the District Court err in setting the effective date
of Myron's modified child support obligation?
5. Did the District Court err in determining Kathleen's gross
income?
Backqround
Myron and Kathleen were married on October 16, 1976. They had
four children during their marriage. The parties' marriage was
dissolved on August 31, 1992. Pursuant to the decree of
dissolution, Kathleen was granted custody of the four children and
Myron was granted limited visitation rights subject to certain
conditions. Myron was ordered to pay a total of $493 per month in

child support. The District Court also ordered Myron to maintain

health insurance for the children through his employer or, if none

was available, to pay Kathleen $80 per month to reimburse her for

health insurance premiums. The parties were to equally share

uncovered medical costs. Myron appealed from the District Court‘s

findings of facts, conclusions of law and decree. This Court

affirmed the District Court in all respects with the exception of

a travel restriction placed on Myron. In re Marriage of Kovash

(1993), 260 Mont. 44, 858 P.2d 351 (Kovash I).
Subsequently, two of the parties' four children began living

with Myron as of September 1, 1993. Myron petitioned the court for

a redetermination of child support. On June 24, 1994, the District

Court entered its order modifying Myron's child support obligation.

The court found that Myron's new obligation was $322.83 per

month and that Kathleen's support obligation was $34.93 per month,

leaving Myron with a net support obligation of $287.90 per month.

The court ordered that the new child support amount would be

effective as of September 29, 1994. The court also found Myron in

arrears a total of $7,678 through September of 1993. The court

determined the amount of arrearage by finding that through

September of 1993, Myron owed $5,576 in back child support, $502 in

uncovered medical expenses and $1,600 representing one-half of the

cost of braces for one child's teeth. The order was not intended

to preclude a finding of further arrears that may have occurred

since September of 1993.
 Myron filed motions for reconsideration or modification of the
court's order. Because the court failed to decide Myron's post-
order motions within 45 days, they were deemed denied pursuant to
Rule 59(g), M.R.Civ.P. Myron appeals.
Standard of Review
In previous cases, we have stated that we review findings of
fact in child support modification cases to determine whether the
district court abused its discretion. In re Marriage of Barnard
(19941, 264 Mont. 103, 106, 870 P.2d 91, 93 (citing In re Marriage
of Durbin (1992), 251 Mont. 51, 55, 823 P.2d 243, 245). However,
in other areas of marital law, we review a district court's
findings of fact to determine whether they are clearly erroneous.
See, e.q., In re Marriage of Taylor (1993), 257 Mont. 122, 125-26,
848 P.2d 478, 480 (findings regarding division of marital estate);
In re Marriage of Eschenbacher (1992), 253 Mont. 139, 142, 831 P.2d
1353, 1355 (findings regarding maintenance award). There is no
reason for this inconsistency. Therefore, from this time on we
will review a district court's findings of fact in child support
modification cases to determine whether they are clearly erroneous.
We will continue to 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 Hill (1994), 265
Mont. 52, 57, 874 P.2d 705, 707. We review a district court's
conclusions of law to determine whether the court's interpretation
of law was correct. Marriase of Barnard, 870 P.2d at 93.
Issue 1

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 Did the District Court err in determining the amount of

Myron's arrearage?

The District Court concluded that Myron was $5,576 in arrears

in child support payments for the time up to and including

September of 1993. Myron contends, and Kathleen concedes, that
this amount is incorrect. The parties stipulated that through

August of 1993, Myron was $2,316 in arrears in child support

payments. Myron contends that this stipulation was binding and

that the court erred by finding a child support arrearage over

$2,316.
We disagree with Myron's contention that the court was bound

by the stipulation. "Parties cannot make binding agreements, oral

or written, as to support, custody or visitation of children." In

re Marriage of Mager (1990), 241 Mont. 78, 80-81, 785 P.2d 198,

200. However, the record does not support the court's assessment

of $5,576 in child support arrearage through September of 1993.

The $2,316 figure appears to be the correct child support arrearage

amount from the date the dissolution decree was entered through

August of 1993. Even considering a possible pre-decree child

support arrearage and those for the month of September 1993, the

District Court's amount of $5,576 is inflated. We hold that there

is not substantial credible evidence to support the District

Court's finding of $5,576 as Myron's amount of child support

arrearage through September of 1993. Thus, the District Court's

finding was clearly erroneous. We reverse the court's

determination and remand for redetermination of the proper amount.

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 Next, the District Court included $1,600, one-half the cost of

braces, in the amount of Myron's arrearage. Myron argues that this
amount cannot be considered an arrearage as it has not yet been

incurred. We agree. Myron is responsible for one-half of the

uncovered medical expenses. However, medical expenses must first

be incurred before they can be considered in the arrearage. Half

of the expense will be Myron‘s responsibility, and the court may

order payment of this amount including one-half of the down payment

required to commence the orthodontic work, but it may not be

considered an arrearage at this time. Therefore, we reverse the

District Court's determination that Myron is $1,600 in arrears for

payments on braces for his child.

In determining Kathleen's child support obligation, the

District Court also gave Kathleen a credit of $75 per month for

payments she would have to make for the braces. Including the

amount to be paid for braces in Kathleen's child support

calculation distorts the amount of each party's child support
obligation. The dissolution decree declared that the parties are

to equally share the amount of uncovered medical expenses. On

remand, to avoid distortion in the guideline amount of each party's

child support obligation, the District Court should exclude any

amount for payments on the braces in its guideline calculation.

Finally, the District Court concluded that Myron was $502 in

arrears for uncovered medical expenses. Myron argues that Kathleen

testified that she had paid a total of $358 in medical expenses

and, therefore, he is responsible for only one-half of that amount.

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We disagree.
Kathleen introduced two exhibits representing amounts still
owed for the children's medical needs and amounts that she had paid
for the children's outstanding medical expenses. The $358 Kathleen
testified to represented only the amount she believed she had
already paid toward the uncovered medical expenses. According to
the parties' decree of dissolution, Myron is responsible for one-
half of the children's uncovered medical expenses, not just those
which Kathleen has already paid. Combining the amounts that
Kathleen's exhibits show she actually paid and the total amounts
still due, it is apparent that the District Court's finding that
Myron was $502 in arrears in unpaid medical expenses is not clearly
erroneous.
Issue 2
Did the District Court err by failing to give Myron credit for
his payment of the children's health insurance premiums?
In redetermining Myron's child support obligation, the
District Court did not credit Myron with any amounts he paid for
the children's health insurance premiums. Myron testified, without
objection or contradiction by Kathleen, that he had obtained health
insurance for the children through his employer. The testimony of
one witness is generally sufficient for the proof of any fact. See
§ 26-l-301, MCA. We hold that the District Court erred by failing
to include this expense in its redetermination of the parties'
child support obligations. The estimated amount Myron expended on
the children's insurance coverage was $44 per month. On remand,
the District Court should include this figure in its determination
of the parties' child support obligations.

Issue 3

Did the District Court err by ordering that the assessed

arrearage may be collected by the CSED?

The District Court concluded that the CSED could collect the

arrearage, including the $502 Myron was in arrears for uncovered

medical expenses and $1,600 for one-half the cost of braces. Myron

contends that Montana statutes only provide the authority for the

CSED to collect arrears for child support and amounts for health

insurance, not uncovered medical expenses or the cost of braces.

We have already determined that the District Court erred in

assessing Myron an arrearage for the unincurred costs of the

braces. We need only determine whether the Montana legislature has

granted the CSED the authority to collect an arrearage of uncovered

medical expenses.

Kathleen contends that the definition of "support order"

contained in § 40-5-403, MCA, indicates that medical expenses may

be collected by the CSED. Section 40-5-403(7), MCA, states:

"Support order" means an order of the district court of
the state of Montana . . that provides a set and
determinable amount for temporary or final periodic
payments of funds for the support of a child. Support
order further includes the following:
(a) an order for reimbursement of public assistance
money paid by a public agency for the benefit of a minor
child;
(b) an order for maintenance to be paid to a former
spouse when the former spouse is the custodial parent of
a child for whom child support is awarded under the same
order; and
(c) an order requiring payment of interest due on
unpaid judgments for child support.
 In interpreting statutes, we must give language its plain

meaning. Stansbury v. Lin (1993), 257 Mont. 245, 249, 848 P.2d

509, 511. If the legislature's intent can be determined from the

plain meaning of the words used in a statute, we will go no

further. State ex rel. Neuhausen v. Nachtsheim (1992), 253 Mont.

296, 299, 833 P.2d 201, 204 (citation omitted). It is the function

of the courts to ascertain and declare what, in terms or substance,

is contained in a statute; it is not our function to insert what

has been omitted. Neuhausen, 833 P.2d at 204 (citation omitted).

The plain statutory language indicates that the legislature

intended to grant the CSED the power to collect periodic child

support payments. The statute makes no mention of medical

expenses. We hold that the legislature did not intend to grant the

CSED the authority to collect delinquent medical expense payments.

It is the legislature's prerogative to give the CSED that power if

it so chooses, but that is not the function of this Court. We hold

that the District Court misinterpreted the law and erred by

ordering that the CSED may collect the amount Myron is in arrears

in uncovered medical expenses.

Issue 4
Did the District Court err in setting the effective date of

Myron's modified child support obligation?
The District Court ordered that the modified monthly amount of

child support due would be effective September 29, 1994. The

parties stipulated, for the purpose of child support determination,

that two of the children began living with Myron as of September 1,

9
1993. Myron filed his petition for modification of child support
on September 29, 1993. In February of 1994, the parties entered
into a stipulation that the modified child support obligation would
be retroactive to September of 1993.
Again, stipulations involving child support, custody or
visitation are not binding on the court. Marriaqe of Maqer, 785
P.2d at 200. However, we hold that the District Court abused its
discretion in determining that the child support modification would
not be effective until September 29, 1994. In determining the
effective date for the support modification, the court apparently
gave no weight to the de facto custody arrangement in effect since
September of 1993. Continuing Myron's original child support
obligation, which was determined when Kathleen had all four
children in her custody, for an entire year after Myron had custody
of two of the children does not reflect the realities of the
situation.
A court may modify a decree regarding child support only as to
installments accruing after the parties have been provided actual
notice of the motion for modification. See § 40-4-208(l), MCA.
Myron filed for modification of child support on September 29,
1993. Therefore, the effective date of the child support
modification should be September 29, 1993.
Issue 5
Did the District Court err in determining Kathleen's gross
income?
For the purpose of determining child support, the District

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Court assigned Kathleen an annual gross income amount of $10,560.
Myron contends that this amount is incorrect and that Kathleen
should have an imputed annual income of $15,600. He argues that
Kathleen was working at a federal job earning approximately $7.50
an hour before leaving that job in June of 1993. Since leaving the
job, Kathleen has been indicted, but not convicted, for stealing
federal money while employed by the federal government.
Myron contends that the situation in this case is similar to
that in Mooney v. Brennan (1993), 257 Mont. 197, 848 P.2d 1020. In
Moonev, a majority of this Court held that a father who was being
sent to prison did not qualify for a modification of his child
support obligation. The majority reasoned that the father's pre-
incarceration income should be imputed to him because committing
the crime which resulted in his imprisonment was a choice rather
than an involuntary change in circumstances. Also, the obligor
should not profit by his criminal conduct at the expense of his
children. Mooney, 848 P.2d at 1023 (quoting Willis v. Willis
(Or.Ct.App. 1991), 820 P.2d 858, 860, rev'd (Or. 19921, 840 P.2d
697) .
The instant case is distinguishable from Mooney. Here,
Kathleen had custody of all four children at the time she stopped
working for the federal government. Since Kathleen had no child
support payment obligations at the time she ceased working for the
federal government, it cannot be said that she left her federal job
to escape her support responsibilities. We hold that it was not
clearly erroneous for the District Court to find Kathleen's gross

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income to be $10,560 for the purpose of child support calculations.
We affirm in part, reverse in part, and remand for further
proceedings consistent with this opinion.

We concur:

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April 11, 1995

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid,
to the following named:

Mark P. Yeshe
Attorney at Law
Ste. 4L, Power Block
P.O. Box 483
Helena, MT 59624

Derik Pomeroy
Attorney at Law
1705 W College, Ste. A
Bozeman, MT 59715

K. Amy Pfeifer
Special Asst. Atty. General
Child Support Enforcement Div.
3075 N. Montana, Ste. 112
Helena, MT 59604

Bruce E. Becker
Attorney at Law
P.O. Box 1113
Livingston, MT 59047

Todd R. Hillier
Attorney at Law
108 Church St.
Bozeman, MT 59715

EDSMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA

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