May 10 2011
DA 10-0451
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 98
IN RE THE PARENTING OF N.S.,
Minor Child:
SETH R. HILLIARD,
Petitioner and Appellee,
and
VALERIE SMITH,
Respondent and Appellant.
APPEAL FROM: District Court of the Seventh Judicial District,
In and For the County of Richland, Cause No. DR 09-42
Honorable Katherine M. Irigoin, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Phillip N. Carter, Attorney at Law, Sidney, Montana
For Appellee:
Stephen C. Mackey, Towe, Ball, Enright, Mackey & Sommerfeld, PLLP,
Billings, Montana
Submitted on Briefs: March 23, 2011
Decided: May 10, 2011
Filed:
__________________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.
¶1 Valerie Smith (Smith) appeals from an order of the Seventh Judicial District Court,
Richland County, naming Seth Hilliard (Hilliard) as the primary residential parent of N.E.S.
and directing Smith to pay child support. We affirm in part and reverse in part.
¶2 We review the following issues on appeal:
¶3 Whether the District Court wrongly named Hilliard as the primary residential parent
of N.E.S.
¶4 Whether the District Court properly calculated Smith’s child support obligation.
¶5 Whether the District Court afforded Smith a fair trial.
FACTUAL AND PROCEDURAL HISTORY
¶6 Smith and Hilliard had one child together, N.E.S. Smith and Hilliard never married
and the couple split up shortly after Smith became pregnant with N.E.S. in 2000. Hilliard
knew Smith was pregnant when they separated, but he did not spend any time with N.E.S.
until 2005 or 2006. Hilliard apparently spent N.E.S.’s early years incarcerated for reasons
not disclosed in the record. Hilliard began paying child support to Smith in 2003 at Smith’s
request and he had regularly made payments up until August 2009 when N.E.S. lived with
him full time. N.E.S. spent his early childhood in Red Lodge, Montana, with Smith where
he attended pre-school through second grade.
¶7 Hilliard began seeing N.E.S. in the summers from the time that N.E.S. was five or six
years old. Hilliard lives in Sidney, Montana, with his wife and three young children. The
record does not demonstrate definitively the extent of each of the summer visits between
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Hilliard and N.E.S. The District Court concluded that Hilliard had parented N.E.S. during
the summers from 2006-2009, but Smith argues that Hilliard parented N.E.S. only during the
summers of 2008-2009. Smith testified that she allowed Hilliard to take N.E.S. for the
summers of 2008 and 2009 as long as he returned N.E.S. in time to start school in the fall.
Hilliard did not return N.E.S. to Smith after the summer of 2009.
¶8 Hilliard instead petitioned the District Court pro se to establish a permanent parenting
plan for N.E.S. Smith did not respond to Hilliard’s court proceeding because she could not
afford counsel. The court entered a default judgment in Hilliard’s favor in September 2009.
Smith hired an attorney in February of 2010 and filed a motion to set aside the default
judgment. The court granted Smith’s motion and set a new trial for August 2010 to establish
a permanent parenting plan for N.E.S.
¶9 The District Court heard evidence regarding N.E.S.’s relationship and family life with
both parents. The court interviewed N.E.S. in chambers. N.E.S. testified that he had a great
relationship with both parents and the record demonstrates that he has succeeded in school in
both Sidney and Red Lodge. N.E.S. told the court about his daily life with each parent.
¶10 Smith has seven other children. She has two adult daughters living in Red Lodge.
She also has three children under the age of eighteen who live with their respective fathers in
Red Lodge. Smith’s eighteen-year-old son, Teddy, and her fourteen-year-old daughter,
Brandi, both live with her full-time. At the time of the trial Smith recently had moved to
Billings and had planned for N.E.S. to attend school there. Smith previously had worked at
the Red Lodge Café as a waitress, but Smith did not yet have employment in Billings. Smith
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planned to waitress full-time in Billings. Smith lives in a three bedroom apartment in
Billings. N.E.S. shares a room with Brandi when he lives with Smith. N.E.S. spent most of
his afternoons after school at the Boys’ and Girls’ Club in Red Lodge. None of the
testimony indicated how N.E.S. would spend afternoons in Billings.
¶11 Hilliard has three children with his wife Heather, all who live with him in Sidney.
The family shares a three bedroom house. Hilliard, Heather, and N.E.S.’s six-month-old
half-brother share one room, N.E.S.’s seven-year-old half-sister, Erin, has her own room, and
N.E.S. shares a room with his three-year-old half-brother, Taylor. N.E.S. rides the bus home
and Hilliard’s wife, Heather, supervises him after school in Sidney. Heather cooks for the
family and N.E.S. plays outside with neighborhood children. Hilliard works full-time at
Agri-Industries and testified that he would be able to obtain health insurance for N.E.S.
through his employer. Smith did not provide any evidence of available health insurance for
N.E.S.
¶12 N.E.S. testified that he got along great with both parents, but he decided a week
before trial, in the middle of two weeks he spent with Smith, that he preferred to live with
Smith. N.E.S. testified that he preferred to live with Smith because he was tired of his
younger half-sister, Erin, bothering him at Hilliard’s house. N.E.S. also testified that Smith
is a better cook than Heather because she makes Hot Pockets, steak, and leftovers, whereas
Heather makes something different every night including Hamburger Helper, casseroles, and
tacos.
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¶13 The evidence presented establishes that neither parent abuses any substances. Neither
parent physically abuses N.E.S. or one another. Hilliard presented evidence of Smith’s then
seventeen-year-old son Teddy, who lives with Smith, drinking alcohol with Smith’s
purported ex-boyfriend. Hilliard fears that N.E.S. does not receive proper discipline or
supervision while living with Smith. Both parents agree that N.E.S. should not be around
people who abuse alcohol.
¶14 The District Court entered a final parenting plan for N.E.S. that placed N.E.S.’s
primary residence with Hilliard. The court concluded that it was in N.E.S.’s best interest to
live primarily with Hilliard in Sidney during the school year and with Smith during the
summer, despite N.E.S.’s wishes to live primarily with Smith. The court reasoned that
Hilliard provided a more stable home life and provided N.E.S. continuity and stability of
care. The court also ordered both parties to submit the appropriate child support
documentation. The court imputed income to Smith based on a forty hour work week and
calculated child support pursuant to § 40-4-204, MCA. The court ordered Smith to pay
Hilliard $197 per month in child support. Smith appeals.
STANDARD OF REVIEW
¶15 We review for clear error a district court’s findings in a child custody decision. In re
Marriage of Dennison, 2006 MT 56, ¶ 13, 331 Mont. 315, 132 P.3d 535. We may reverse
the district court’s findings of facts if they are not supported by substantial evidence, if the
court misapprehended the effect of the evidence, or if a review of the record leaves this Court
with a definite and firm conviction that the trial court made a mistake. Id. We review for
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correctness the district court’s application of statutes and regulations. Kulstad v. Maniaci,
2009 MT 326, ¶ 50, 352 Mont. 513, 220 P.3d 595.
DISCUSSION
¶16 Whether the District Court wrongly named Hilliard as the primary residential parent
of N.E.S.
¶17 Smith cites the fact that she parented N.E.S. from his birth in 2000 through the court’s
order in 2010 to support her claim that N.E.S. belongs with her. Smith points out that she
provided N.E.S. with a safe home, that she never abused N.E.S. in any way, and that she
never abused drugs or alcohol in any way. No one disputes any of Smith’s claims. We must
take issue, however, with her effort to liken the proceeding in the District Court to a parental
termination proceeding pursuant to a dependent and neglect claim. The District Court did
not evaluate Smith’s fitness as a parent in determining that N.E.S. should live primarily with
Hilliard. The court instead applied the best interest of the child standard used in custody
proceedings. Section 40-4-212, MCA. We too must apply this standard.
¶18 The District Court sits in the best position to evaluate the best interest of the child. In
re Marriage of Toavs, 2006 MT 68, ¶ 8, 331 Mont. 437, 133 P.3d 202. Child custody cases
often present the court with difficult decisions. We must presume that the court carefully
considered the evidence and made the correct decision. Id. at ¶ 13.
¶19 Smith argues that the District Court failed to state the reason that it chose not to
follow N.E.S.’s wishes to live with Smith. In re Custody of J.H., 231 Mont. 301, 304, 752
P.2d 194, 195 (1988). The court interviewed N.E.S. in chambers in accordance with § 40-4-
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214, MCA. The court recorded the interview and made it part of the record in this case.
Section 40-4-214, MCA. The court also made a specific finding of fact regarding N.E.S.’s
wishes. In re Custody of J.H., 231 Mont. at 304, 752 P.2d at 195. N.E.S. stated that he
would prefer to live in Billings with Smith.
¶20 We do not require the district court to follow the child’s wishes. In re Marriage of
Kovash, 260 Mont. 44, 51, 858 P.2d 351, 355-56 (1993). The court must give a reason,
however, as to why it did not follow the child’s wishes. In re Custody of J.H., 231 Mont. at
304, 752 P.2d at 195. The District Court concluded that N.E.S. should live primarily with
Hilliard because Hilliard provided a “more stable home life and can provide N.E.S.
continuity and stability of care.” Id.
¶21 The district court assesses the ability of a child to formulate and articulate his custody
wishes and must weigh that preference in light of the other evidence and factors enumerated
in § 40-4-212, MCA. In re Marriage of Murphy, 205 Mont. 162, 165, 666 P.2d 755, 757
(1983). The court questioned N.E.S. in chambers. N.E.S. testified that he liked living with
both parents. The court concluded that N.E.S.’s primary reason for choosing Smith related
to his annoyance with his younger sister in Sidney. The court did not abuse its discretion
when it concluded that it was in N.E.S.’s best interest to reside primarily with Hilliard
despite N.E.S.’s wishes to live with Smith. In re Custody of J.H., 231 Mont. at 304, 752
P.2d at 195. The court properly stated its reason—the court concluded Hilliard provided
more continuity and stability of care for N.E.S. Id.
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¶22 Smith also argues that the record lacks evidence to support the court’s following
findings: (1) that N.E.S. lives with three younger siblings in Sidney, Montana, (2) that
Hilliard parented N.E.S. during the summers of 2006 and 2007, (3) that N.E.S. earned mostly
A’s during the school year in Sidney, (4) that Hilliard had any telephone contact with N.E.S.
before 2006, and (5) that Hilliard is better able to provide more continuous or stable care of
N.E.S. in Sidney.
¶23 The parties presented contrary evidence as to the extent of Hilliard’s previous
relationship with N.E.S. Hilliard testified in 2009 that he had spent the past two or three
summers with N.E.S., that he had seen N.E.S. every summer since 2006, and that he had first
spent time with N.E.S. in October 2005. Hilliard also maintained that he had called Smith
before 2005 and that his family’s first contact with N.E.S. went back to before 2005 when
his mother had visited N.E.S. in Red Lodge.
¶24 Smith testified that N.E.S. spent the summers of 2008 and 2009 with Hilliard and that
Hilliard’s first contact with N.E.S. took place in 2006. Smith confirmed that Hilliard’s
mother had visited N.E.S. The District Court stated in its findings that Hilliard had
“parented N.E.S. during the summer of 2006, the summer of 2007, the summer of 2008 and
since June 2009.” The court did not describe the extent of Hilliard’s parenting over the
course of each summer.
¶25 Smith argues that insufficient evidence supports the court’s finding that Hilliard had
parented N.E.S. during the summers of 2006 and 2007. Smith bases her argument on
Hilliard’s testimony that he had only spent a few hours at Smith’s house in both 2006 and
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2007. Smith asked Hilliard on cross-examination how he had concluded that Smith did not
discipline N.E.S. Hilliard admitted that he had spent only a few hours at Smith’s house
during the summers of 2006, 2007, 2008, and 2009. Hilliard’s admission that he had spent
only a few hours at Smith’s house does not necessarily establish, however, that Hilliard spent
only a few hours with N.E.S. each summer. The court could have deduced that Hilliard only
spent a few hours at Smith’s house when he picked up and dropped off N.E.S. after longer
visits. The parties presented contradictory testimony. The district court determines the
credibility of the witnesses and the weight assigned to their respective testimony. Kulstad,
¶ 52; In re Marriage of McKenna, 2000 MT 58, ¶ 17, 299 Mont. 13, 996 P.2d 386.
Substantial credible evidence in the record supports the District Court’s finding. Kulstad,
¶ 51.
¶26 Smith challenges whether Hilliard presented any substantial credible evidence that he
had any children other than N.E.S. or that N.E.S. received mostly A’s in Sidney. Hilliard
represented himself pro se in the District Court proceedings. Hilliard did not mention his
three younger children at any point during the proceedings. Hilliard also did not submit
evidence of N.E.S.’s grades. The court interviewed N.E.S. in chambers, however, and that
interview became part of the record. Section 40-4-214, MCA. N.E.S. testified in the
interview that he had received mostly A’s during the school year in Sidney. N.E.S. also
provided the court a detailed description of his home life with Hilliard, including the names
and ages of his younger siblings and his relationship with them. Substantial credible
evidence in the record supports the court’s findings on these matters.
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¶27 Smith suggests that the record lacks substantial credible evidence to support the
court’s finding that Hilliard’s home situation provides more continuous and stable care for
N.E.S. Hilliard testified that N.E.S. has continual adult supervision, more discipline, and a
more stable environment in Sidney. Smith recently had moved to Billings. Smith did not
explain whether she would provide adult supervision for N.E.S. after school in Billings.
N.E.S. usually went to the Boys’ and Girls’ Club after school in Red Lodge. The district
court bears the difficult responsibility of determining the best interest of the child in
accordance with § 40-4-212, MCA. Hilliard’s testimony and N.E.S.’s testimony support the
court’s decision. Substantial credible evidence in the record supports the District Court’s
finding. In re Marriage of Dennison, ¶ 13.
¶28 Whether the District Court properly calculated Smith’s child support obligation.
¶29 Smith argues that the District Court improperly imputed income, wrongfully added
her federal earned income credits (EIC) to her income, and failed to require Hilliard to swear
to the accuracy of his financial documents. Section 40-4-204, MCA, governs a district
court’s resolution of child support issues. Section 40-5-209, MCA, provides that the district
court must follow child support guidelines in all cases unless the court finds by clear and
convincing evidence that applying the guidelines would be unjust to the child or the parties.
Section 40-4-204(3)(a), MCA; In re Marriage of Williams, 2009 MT 282, ¶ 27, 352 Mont.
198, 217 P.3d 67.
¶30 The District Court ordered the parties to submit (1) a Montana Child Support
Guidelines Financial Affidavit and (2) a Montana Child Support Worksheet in order to
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calculate child support for N.E.S. in accordance with § 40-4-204, MCA. The court
considered the factors outlined in § 40-4-204, MCA, including the financial resources of
each parent. Smith recently had quit a waitressing job in Red Lodge and had moved to
Billings. She testified that she would work full-time in Billings. The court determined that it
should impute income to Smith for a forty hour work week as a result of her unemployed
status.
¶31 The administrative rules provide additional requirements the court must follow when
calculating child support. Admin. R. M. 37.62.106(7) provides that the court should impute
income whenever a parent is unemployed or underemployed. A court may impute income to
a parent who is voluntarily unemployed or underemployed based upon the parent’s capacity
and ability to earn. In re Marriage of Dennison, ¶ 18; In re Marriage of Bee, 2002 MT 49,
¶ 22, 309 Mont. 34, 43 P.3d 903. A parent testified in Dennison that she worked part-time
and that she could obtain full-time work if she wished. In re Marriage of Dennison, ¶ 19.
The Court concluded that the district court abused its discretion when it did not impute
income to the parent under these circumstances. Id.
¶32 Hilliard asked Smith how she planned to support N.E.S. given that she did not have
full-time employment. Smith testified that she planned to get full-time work once school
started for N.E.S. and that she would be working day shifts in Billings. It appears from the
record that Smith voluntarily quit her job to move to Billings. The court reasonably relied
upon Smith’s own testimony that she would be employed full-time in the near future. The
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court did not abuse its discretion when it imputed income to Smith in order to calculate child
support. Id.
¶33 Admin. R. M. 37.62.106(8) provides that the court should not add a parent’s EIC to
the parent’s income when the court imputes income. The court issued its order setting child
support in this matter according to the Montana Child Support Guidelines Worksheet A. The
court attached Worksheet A to its order. The court made several errors in calculating
Smith’s income on the Montana Child Support Guidelines Worksheet A. The court
improperly added Smith’s EIC to her total income. Admin. R. M. 37.62.106(8). Smith’s
EIC equals one-third of her imputed income and increases her total income substantially.
The court also wrongly characterized Smith’s imputed income as actual income on
Worksheet A. The court violated Admin. R. M. 37.62.106(8) when it incorrectly calculated
Smith’s income. Kulstad, ¶ 50.
¶34 Whether the District Court afforded Smith a fair trial.
¶35 Smith argues that the District Court did not afford her a fair trial. Smith cites to the
court’s failure to provide Smith with Hilliard’s financial information. Smith claims that this
omission prevented her from cross examining Hilliard regarding his financial statements.
Smith claims that the court exceeded the scope of § 40-4-214, MCA, when it asked N.E.S.
questions about matters other than N.E.S.’s wishes as to residential and parental contact.
Smith also contends that the court should have allowed her to cross-examine N.E.S.
¶36 The record lacks any evidence that Smith argued to the District Court that it must
allow her to examine Hilliard’s Financial Affidavit and Worksheet and must afford her the
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opportunity to cross-examine Hilliard about the financial statements. Smith makes this
argument for the first time on appeal. We will not review arguments that a petitioner
presents for the first time on appeal. Foston v. State, 2010 MT 281, ¶ 10, 358 Mont. 469,
245 P.3d 1103.
¶37 The court interviewed N.E.S. in chambers in order to determine N.E.S.’s preference
for the primary residential parent. The court did not ask N.E.S. simply where he wished to
live. The court instead asked N.E.S. a series of questions about his life with each parent and
what he liked or disliked about each parent’s home. The court’s questions related to its
determination of N.E.S.’s wishes as to residential and parental contact. Smith does not direct
this Court to any authority, and we are aware of none, to support her argument that the court
may not ask a child about the child’s life with each parent in order to evaluate more
accurately a child’s wishes in accordance with § 40-4-212, MCA.
¶38 In fact, this Court has stated that “it is often important for the judge to discover the
attitudes and wishes of the child.” In re M.L.H., 220 Mont. 288, 292-93, 715 P.2d 32, 34-35
(1986). The Court in In re M.L.H. further determined that no reason exists “to subject the
child to the formality of the courtroom and the unpleasantness of cross-examination,” during
the course of the interview process pursuant to § 40-4-214, MCA. Id. We agree. Nothing
in § 40-4-214, MCA, requires the court to give the parties an opportunity to cross-examine
the child. The court must make a record of the interview available to the parties. In re
M.L.H., 220 Mont. at 292-93, 715 P.2d at 35. The District Court complied. The court did
not abuse its discretion when it interviewed N.E.S. in chambers. Id.
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CONCLUSION
¶39 We affirm the District Court’s Final Parenting Plan. We remand the child support
award to the District Court for recalculation in accordance with this opinion. Smith can
challenge the validity of Hilliard’s financial statements, through cross-examination or other
means, during any proceedings conducted by the District Court.
/S/ BRIAN MORRIS
We Concur:
/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ JIM RICE
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