In Re the Marriage of Noel

NO. 94-030
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994

IN RE THE MARRIAGE OF:

TOM E. NOEL,
Petitioner and Respondent,
and
BRENDA S. NOEL,
Respondent and Appellant.

APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Michael H. Keedy, Judge presiding.

COUNSEL OF RECORD:
For Respondent and Appellant:
James B. Wheelis Montana Legal Services
Association, Kalispell, Montana
For Petitioner and Respondent:
Gregory E. Paskell, Kalispell, Montana
For Amicus Curiae:
Amy Pfeifer, Department of Social and Rehabilita-
tion Services, Helena, Montana

Submitted on Briefs: May 5, 1994
Decided: June 7, 1994
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
This dissolution of marriage was filed in the District Court
of the Eleventh Judicial District, Flathead County. The parties
submitted to the court a property settlement agreement which did
not require the mother to pay child support for the child of the
marriage, who was in the father's custody. The court refused to
accept the agreement and ordered the mother to pay child support to
the father in the amount of $33 per month. She appeals. we
reverse and remand.
The issue is whether the District Court abused its discretion
in applying the Montana Child Support Guidelines when it declined
to deduct child care costs allowed by Rule 46.30.1516(3), ARM, from
income imputed to the mother under Rule 46.30.1513, ARM.
The parties were married in 1986 and had one child. They
separated in 1989. Between the parties' separation and the date of
dissolution, the mother had two children by another man. At the
time of the dissolution hearings, she was expecting a third child
from that relationship.
The parties arrived at a property settlement agreement which
awarded custody of their son to the father. When the parties
submitted the agreement to the District Court, the court declined
to approve it because the agreement did not require the mother to
pay child support. The court stated, "I don't approve of property
settlement agreements where minor children are involved, as here,

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that provide for no support from a non-custodial parent who is
able-bodied and making babies."
At a subsequent hearing, the mother testified that she had
been sporadically employed at minimum wage jobs since finishing
high school. She was unemployed and had been receiving AFDC
payments at the time of the hearing. She testified that the father
of her youngest children, with whom she and the children lived, was
a college student who worked during the summers as a firefighter.
In calculating the mother's child support obligation, the
court imputed income to the mother at minimum wage, pursuant to
Rule 46.30.1513, ARM. It ruled that the reference in Rule
46.30.1513(2)(c), ARM, to deductible child care costs included only
those costs for children of the marriage or the relationship in
question, rather than for children produced after the termination
of that relationship. Then, the court treated as discretionary the
provision of Rule 46.30.1516, ARM, allowing a deduction from income
for child care expenses. The result of the court's calculations
was a $33 per month child support obligation for the mother.

Did the District Court abuse its discretion in applying the
Montana Child Support Guidelines when it declined to deduct child
care costs allowed by Rule 46.30.1516(3), ARM, from income imputed
to the mother under Rule 46.30.1513, ARM?

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 The Montana Child Support Guidelines, which are published in

the Administrative Rules of Montana at Title 46, Chapter 30,

subchapter 15, are promulgated by the Department of Social and

Rehabilitation Services pursuant to § 40-5-209, MCA. The Guide-

lines establish detailed standards for calculating child support

obligations. The standards, generally stated, require each parent

to contribute child support in an amount proportionate to that
parent's share of the combined resources of both parents, after

specific allowable deductions have been made from each parent's

gross income.
In this case, the mother was not employed outside the home.

Rule 40.30.1513, ARM, sets forth the procedure for imputing income

to an unemployed parent:

(1) "Imputed income" means income not actually earned by
a parent, but which may be attributed to the parent
because the parent is voluntarily unemployed, is not
working full-time when full-time work is available, or
the parent is intentionally working below his or her
ability or capacity to earn income.

(2) Income may be imputed according to one of two
methods as appropriate:

(a) Determine employment potential and probable net
earnings level based on the parent's recent work history,
occupational qualifications, and prevailing job opportu-
nities and earnings level in the community. If there is
no recent work history, and no higher education or
vocational training, income may be imputed at the minimum
wage level.

. . .

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 (c) Whenever income is imputed to an unemployed parent
who is providing in-home care for the child for whom
support is being calculated, and if that parent would be
required to incur child care expenses if employed at the
imputed level, then the imputed income should be reduced
by the reasonable value of the parent's child care
service.
The court imputed income to the mother at a minimum wage rate. It
refused to allow the mother a deduction for child care expenses
under subsection (2)(c) above, reasoning that subsection (2)(c)
applied only to children of the marriage.
Rule 46.30.1516, ARM, Determination of Wet Income, provides at
subsection (3):
Reasonable expenses for items such as child care or in-
home nursing care for the parent's legal dependents other
than those for whom support is being determined, which
are actually incurred and which are necessary to allow
the parent to work, less federal tax credits, if any, may
be deducted from gross income.
The court "cho[se] to deny a deduction" to the mother for child
care costs, ruling that such a deduction is discretionary.
Our standard of review of a ruling establishing a child
support obligation is whether the district court abused its
discretion. In re Marriage of Weed (1992), 254 Mont. 162, 165, 836
P.2d 591, 593. However, a district court must apply its discretion
in a realistic manner, taking into account the actual situation of
the parties. In re Marriage of Gebhardt (1989), 240 Mont. 165,
172, 783 P.2d 400, 404. Here, we conclude that the court abused
its discretion.

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 The District Court's decision does not realistically reflect
the mother's income earning ability. It is apparent that, in order

to work, the mother would need someone to care for the children who

live with her. She testified that there were no relatives or other

people available to assume full-time care of the children.

If income is to be imputed to the mother, then a deduction for

necessary child care expenses is clearly allowable under Rule

46.30.1516(3), ARM. We hold that, in this case, a deduction for

child care expenses should have been allowed.

As suggested in the amicus curiae brief filed in this matter
by the Child Support Enforcement Division, it appears that a

portion of the mother's child care cost may be assignable to the

father of those children, as his responsibility. Evidence on this

point should be considered on remand.

Reversed and remanded for further proceedings in conformity

with this Opinion.

We concur:

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 June 7, 1994

CERTIFICATE OF SERVICE

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

James B. Wheelis, Esq.
Montana Legal Services Assoc.
33-2nd St. E.
Kalispell, MT 59901

Gregory E. Paskell
Attorney at Law
475 No. Main
Kalispell, MT 59901

AMY PFEIFER
Department of Social & Rehabilitative Services
Child Support Enforcement, Legal Counsel
3075 N. Montana, Suite 112
Helena, MT 59604

ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA