NO. 93-581
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
ANTHONY CLARK WELZENBACH,
Petitioner and Appellant,
-v-
JOHANNA BANGEMAN,
Respondent and Respondent.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Michael Keedy, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Anthony C. Welzenbach, Kalispell, Montana (pro se)
For Respondent:
James C. Bartlett, Hash, OIBrien & Bartlett,
Kalispell, Montana
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- Submitted on Briefs : November 3, 1994
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,,'A , Decided: January 18, 1995
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Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal from the issuance of Findings of Fact,
Conclusions of Law and Decree by the Eleventh Judicial District
Court, Flathead County. We affirm.
We restate the issues on appeal:
I. Did the District Court err in determining that the best
interests of the children called for joint custody with Johanna to
be the primary custodian?
11. Did the District Court abuse its discretion by raising child
support payments from $175 per month per child to $314 per month
per child for future payments and in determining that Anthony owed
back child support from 1990?
Anthony C . Welzenbach (Anthony) and Johanna Bangeman (Johanna)
lived together from 1975 until 1979. Two children were born to the
couple, Corinna, born October 29, 1977, and Wilhelm, born September
22, 1975. The couple entered into an agreement commencing in July,
1981 in which Anthony would pay Johanna $175 per month per child.
By August 5, 1985, Anthony owed $11,265.00 in back child
support. The Eleventh Judicial District Court issued a writ of
execution and Anthony's bank account was executed upon for the full
amount. On December 22, 1986, another writ was issued by the
District Court for $3,500 in back child support. However, Anthony
did not have enough money in his account at that time for
successful execution of the writ.
On March 13, 1987, Johanna and Anthony entered into another
agreement in which Johanna would receive a 1975 Volvo and Anthony
promised to put $1,000 in trust for the children and to pay for
Wilhelm's substantial orthodontist bill. In return, Anthony's
child support would be lowered from $350 per month to $250 per
month and all child support would be considered current. Anthony
did not put the $1,000 in trust nor did he pay the orthodontist's
bill.
On July 20, 1988, Johanna filed a petition seeking to have
Anthony show cause why he had not honored the agreement. Johanna
also sought permission to move from Montana to Hawaii. Anthony
initially objected, but later entered into another agreement with
Johanna in which Anthony agreed to pay $175 per month per child as
long as the children were living with her. If the children moved
back to Montana with him, the payments were to stop, but Johanna
did not have to pay support to Anthony during those times in which
he had residential custody of the children. This agreement was
approved by the court in an order dated November 3, 1988.
Johanna moved to Hawaii with the children for the school
year of 1988-89. Anthony also moved to Hawaii to be close to the
children. The children stayed in Montana with Anthony during the
next school year. In 1991, Johanna moved back to Montana, to a
house very near Anthony's. From this time, the children have gone
back and forth between their parents' homes at will. Each child
has a bedroom in both houses and the children have been permitted
to go to either home when they wanted.
On April 15, 1991, Johanna filed a petition with the District
Court seeking to recover $1,925 in back child support which she
claimed that she was due for the time the children had been at her
house. The court issued its Findings, Conclusions and Decree on
May 4, 1993, requiring Anthony to pay support in the amount of $314
per month per child, to pay Johanna's attorney's fees, to pay her
the back child support he owed, and to accept a joint custody
arrangement in which Johanna would be the primary custodian with
Anthony to have the children about one third of the time.
From the court's order, Anthony appeals pro se.
I.
Did the District Court err in determining that the best
interests of the children called for joint custody with Johanna to
be the primary custodian?
Anthony argues that the court did not consider the wishes of
the children in this matter. According to Anthony, the children
want the arrangement to stay the way it is now. He claims that he
has the children the majority of the time and that it is he who
does the majority of the parenting of the teenage children. He
does not want the court to set a rigid schedule that the children
must follow.
Johanna argues that the children need more predictability in
their lives than is now present. She states that she and Anthony
cannot agree on the structure that the children need so the court
correctly determined what the structure would be for mealtime and
bedtime .
The court noted that Anthony had not correctly brought the
issue of joint custody before the court because he had not
submitted an affidavit seeking a change in custody. However, since
Johanna had not objected to the joint custody, the court determined
after talking to the children that joint custody would be
preferable to sole custody by one parent. The court, however,
determined that Johanna should be the primary caretaker, with the
children staying with Anthony a little over a third of the time.
Anthony objects not to the joint custody arrangement but to
the very specific and structured court order dictating precisely
when the children should be where. He argues that the children do
not want the current arrangement changed and that the current
arrangement does not reflect a situation where Johanna has the
primary care for the children.
We review a District Court's findings to determine whether
they are clearly erroneous. In re Marriage of Olsen (1993)~
257
Mont. 208, 848 P.2d 1026. The court's findings are not clearly
erroneous if they are supported by substantial evidence and the
court has not misapprehended the evidence before it. Further, if
the above are satisfactory, we will still determine that a court is
clearly erroneous if we are left with the firm conviction that the
court has made a mistake. Ragland v. Sheehan (1993), 256 Mont.
322, 846 P.2d 1000. Absent a clear showing of abuse of discretion
a district court's award of child support will be upheld. In re
Marriage of Jacobson (1992), 251 Mont. 394, 825 P.2d 561.
The court issued the following pertinent findings:
11. The court has interviewed the children, and having
heard the evidence and considered the proposals of each
party, the court adopts the proposal submitted by
Johanna.
. . .
13. In adopting the schedule, the Court is cognizant of
the fact that the children will be spending a substantial
period of time with Anthony. The Child Support
Guidelines generally recognize that approximately one-
third of the days in a year are to be spent with the
parent who is to pay support.
. . .
15. Johanna has presented to the court a calendar
establishing the days Wilhelm and Corinna will be with
either parent; the structure is reasonable and in the
best interest of the children. This permits Wilhelm to
reside with Johanna or Anthony from time-to-time, and it
permits Corinna to be with Anthony a great deal of the
time. In adopting the schedule, and in light of the
proximity of the parentsr residences, each child can
still request one parent to stop by to give rides to
school or to have short visits. However, the child will
know where he or she is to eat and sleep after school, on
weekends and during the summer months.
The court also indicated that Anthony and Johanna should have
little contact with each other and should refrain from degrading
each other in front of the children. The record indicates a
continuing bitter relationship between the parents.
Because of the couplers inability to agree on what the
children needed by way of structure, the court set the structure.
As far back as August 18, 1980, the Director of the Family Court
Services indicated that "hard and fast" rules regarding custody,
visitation and support should be made in this case because the
parents could not reach any kind of agreement. The Director noted
in his report to the court at that time, that it was important for
the children to have a "normalization of residency."
Johanna testified that she had tried to set up schedules for
the children so that each parent would know when the children were
to be in his or her home. Anthony, however, resisted any attempt
to set up a schedule, preferring to make day-to-day arrangements.
Both parties testified that after the 1989 school year when Johanna
returned to Montana, the couple were unable to agree on how to
structure the children's day-to-day living arrangements. It was,
therefore, reasonable for the court to make such arrangements. The
record indicates that the children needed structure.
As part of the needed structure, the court determined that
one parent should be designated the primary residential custodian.
Both parents testified that joint custody was appropriate, but
disagreed as to who should have primary responsibility for the
children. While the record contains uncontested evidence to show
that both parents cared for and loved these children, the original
custody agreement designated Johanna as the residential parent.
There is nothing in the record to indicate that this was an
incorrect choice.
Johanna actively sought more structure for the children while
Anthony failed to cooperate with the court or Johanna in
establishing that structure. Substantial evidence supports the
court's choice of primary custodian. We note that Anthony
testified that he did not object to the children having structure
in their lives but only to his ex-wife's ability to determine that
structure. However, Anthony did not present evidence at trial in
opposition to the suggested structure presented by Johanna.
Further, Anthony provided no evidence to indicate that he is
the parent who spends the most money on the children and does the
most parenting as he claims. Johanna provided the court with a
specific set of forms necessary under the Uniform Child Support
Guidelines. These forms showed the amount of money spent on the
children and on her household budget in general. Anthony refused
to fill out these forms. Johanna also submitted a proposed
schedule for the children to follow during the upcoming year as far
as meals and sleeping arrangements. Anthony provided nothing but
declaratory statements about the money he has spent on the
children. The court spoke with the children and the transcript of
that conversation shows that both children cared equally for the
parents and wanted to spend equal time with them.
We conclude that substantial evidence exists that joint
custody with Johanna as the primary custodian is in the best
interest of the children.
11.
Did the District Court abuse its discretion by raising child
support payments from $175 per month per child to $314 per month
per child for future payments and in determining that Anthony owed
back child support from 1990?
Anthony argues that he now pays the majority of the expenses
needed for the children and that he should not have to pay more
support. He contends that the court abused its discretion in
assessing him more support because the court failed to consider the
amount of money he spends on both teenagers. Further, Anthony
argues that the court did not consider his real financial status
when raising his monthly support payments. Anthony argues that his
yearly earnings are much less than the court finally determined.
Because of the amount of money he spends on his children and
because he alleges the original agreement setting the amount of
$175 per month per child ended at 1990, Anthony believes that he
should not have to pay retroactive child support.
Johanna argues that Anthony did not cooperate with her when
she was attempting to determine how much child support he should
pay. She contends that he has been less than truthful in declaring
his actual yearly earnings. Further, Johanna argues that the
agreement setting the $175 total did not end at the year 1990 but
was meant to continue until the children became emancipated or
until the children were past the age of minority.
The court made the following findings of fact:
6. The minor children have resided with Johanna from
time to time. Anthony was required to pay child support
at the rate of $175.00 per month per child for the months
the children have been with Johanna. As of April 15,
1991, the date the present Petition was filed with this
Court, Anthony owed Johanna the sum of $1,925.00.
Johanna presented an accounting for said sum of money,
and Anthony did not contest the time periods that the
children were with him or Johanna. Anthony contended
that the child support obligation should not be
reinstated until there was a new court order. Anthony's
position is untenable; the Court Order dated November 3 ,
1988 automatically reinstated his obligation to pay child
support during the time the children were with Johanna.
7. Johanna has been forthright in disclosing all of her
financial information for the purpose of completing the
worksheet for the Uniform Child Support Guidelines.
Anthony has not been as forthright in disclosing his
finances. Since entry of the original child support
order, he has acquired eight boats and ten parcels of
real estate, including his residence. He is appealing
federal tax liens that have been filed against him. At
the same time, Anthony maintains that his annual income
throughout that time period is approximately $30,000 per
year, with the exception of 1990, when he made
$75,515.00. He is closely affiliated with a corporation,
with shares issued to his relatives, wherein he is
identified as the business representative.
8. Johanna has projected Anthony's gross income, both
disclosed earnings and imputed income, to be $80,000 per
year, but the Court was obliged to reject as hearsay her
evidence in support of that contention. Anthony has
countered by failing to provide the Court with a
worksheet for determination of child support, and he
argues that no monies are due from him to Johanna. Yet
he projects a gross income of at least $30,000.00 per
year. While the Court is not compelled to do a worksheet
for Anthony, assuming a $6,120.00 deduction for taxes and
FICA, with an addition of $5,000.00 for the 2%
assessment, Anthony would have net available resources of
$28,880.00, 26.1% of which is $7,538.00. Using his
figures, he would be required to pay $628.00 in child
support.
9. The Court is therefore presented with a request from
Johanna for child support in the sum of $1,122.00, and
with a refusal of Anthony to pay any child support at
all, but with his own Affidavit supporting an obligation
to pay $628.00.
The record shows that Anthony's financial Affidavit dated
August of 1992, states that he makes an average of $1,990.00 net
income per month. He testified to the accuracy of this figure.
Both opposing counsel and the court used this figure to arrive at
an appropriate figure for support of the two teenagers. The
figure, based upon calculations from the Uniform Child Support
Guidelines and amounting to $628 per month for both children, was
presented to Anthony while he was on the stand. Although Anthony
responded to opposing counsel's question, he did not deny that this
figure was accurate.
Anthony did not do any of the calculations from the Uniform
Child Support Guidelines, nor did he fill out the appropriate forms
so someone else could do the calculations. While the Guidelines
are not part of the record on appeal, both the District Court and
opposing counsel had the Guidelines and used them to arrive at the
same figure--$628per month--based upon the statements in Anthonyls
financial affidavit. The evidence presented at trial shows that
Anthony owns various pieces of realty valued at $192,000 as well as
eight boats. Because Anthony refused to cooperate and submit the
appropriate Uniform Child Support Guidelines forms, the court was
forced to speculate as to how Anthony could have purchased valuable
land and boats on the meagher salary he purported to make.
Further, Anthony did not provide any evidence to counter the
appropriateness of the $628 figure; nor did he present an
alternative amount because he felt that he supported the children
adequately now.
Given Anthony's uncooperative attitude, his own financial
affidavit specifying that he brings home an average of $1,990 per
month, and his failure to present a cogent argument against the
$628 amount, we hold that the District Court did not abuse its
discretion in raising the child support payments from $350 per
month to $628 per month.
Anthony also argues that the agreement with Johanna concerning
the $175 per month per child was only for the time period in which
Johanna was in Hawaii. The agreement, according to Anthony, ended
in 1990. Johanna contends that the agreement specifically states
that the $175 per month per child was to last until the children
reached 18. The court interpreted the agreement in the same way
Johanna did. Further, the court stated in its court order issued
in November of 1988 that the order had the effect of cementing this
total as the continuing support payment for which Anthony should be
responsible.
The record indicates that the original 1981 order of the court
set the sum of child support at $175 per month per child. The
record also shows that the parties entered into a stipulation dated
March 13, 1987. The pertinent part of that stipulation states:
2. That Petitioner has entered into a contract to pay
for the orthodontic care of Wilhelm, which will require
substantial monthly payments, and by reason of this
indebtedness, it is agreed that the child support shall
be reduced from $350 per month to $250 per month for a
period of 32 months, commencing February 1, 1987 and
continuing through the 1st day of September, 1989.
Commencing with the 1st day of October, 1989, the child
support obligation shall once again be $350.00 per month,
or $175.00 per month per child, continuing as to each
child until such time as the child has reached the age of
majority and has graduated from high school, or becomes
emancipated, or dies, whichever first occurs.
On March 19, 1987, the court issued an order based on this
stipulation which stated:
2. That commencing February 1, 1987, and continuing
through the month of September, 1989, Petitioner shall
pay to Respondent, as and for child support, the sum of
$125.00 per month per child, due and payable on or before
the 1st day of each month;
3. That commencing October 1, 1989, Petitioner shall pay
to Respondent, as and for child support, the sum of $175
per month per child, due and payable on or before the 1st
day of each month and continuing as to each child until
such time as the child reaches the ase of majority and
has graduated from high school, or becomes emancipated,
or dies, whichever first occurs; (Emphasis added.)
A year later in April, Johanna filed an application for hearing on
contempt because Anthony had not paid the orthodontist and was
behind in child support. The court issued an order to show cause
why Anthony should not be held to its previous 1987 court order.
After the issuance of this order and before the hearing, Anthony
paid the child support he owed.
In August of 1988, Johanna filed a petition to modify the
original 1987 stipulation because Anthony had not paid $1,000 into
a trust account for the children, had not paid the orthodontist and
had not paid child support. The court issued another show cause
order to which Anthony vehemently objected and unsuccessfully
sought temporary custody of the children.
In September of 1988, before the court could rule at a
hearing, the couple submitted a signed stipulation making special
provisions for their children for a period of several years. The
document stated:
7. Beginning September 1, 1988 and continuing each
month thereafter, and so long as the children reside with
Respondent, Petitioner shall pay $175.00 per month per
child, due and payable on or before the 1st day of each
month and continuins as to each child until such time as
the child reaches the ase of maioritv and has graduated
from high school, or becomes emancipated, or dies,
whichever first occurs . . . (Emphasis added.)
Anthony objects to using this 1988 stipulation because one part of
the document states:
10. The time frame of this agreement is to provide for
the care, education and support of the children through
the end of the school year 1990.
Anthony argues that because of this limitation in the agreement, he
was released from any responsibility as of 1990 and does not owe
back child support.
The court issued an order on November 3, 1988, stating that
the parties should abide by the above referenced stipulation. The
District Court in its findings and conclusions based upon the
August, 1992 trial involving custody and child support, stated that
its 1988 court order and the partiest stipulation both indicate
that the parties agreed to the amount of $175 per month per child
until the children reached the age of majority. Therefore, the
court determined that Anthony owed back child support from the time
of this court order.
We have carefully reviewed the 1988 stipulation and the
ensuing court order. We conclude that the District Court was
correct. The document's blanket statement concerning $175 child
support was followed by a detailed description of what the parties
had planned in terms of residence in Hawaii and then in Montana for
the next two school years. The particular plans involving the
mother's trip to study in Hawaii and the father's subsequent
custody of the children during the following year, is very
explicit. The special considerations concerning residence
concluded at the end of the 1989-1990 school year.
It is obvious to us that the parties understood that the next
two years required some special considerations for the children
because of the mother's trip to Hawaii. The need for special
considerations would be over in 1990 and the children would resume
their ordinary routine with Anthony to pay $175 per month per child
in child support. Any other reading of this stipulation would be
ludicrous.
Anthony has not paid child support since 1990 and he,
therefore, owes the $175 per month per child total for all times in
which Johanna had the children. We conclude that the District
Court did not abuse its discretion in assessing past child support
from 1990.
Af firmed.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of this Court and by a report of its result to the
West Publishing Company.