No. 93-319
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
IN RE THE PATERNITY, CUSTODY AND
SUPPORT OF THE UNBORN CHILDREN OF:
CHERI ELLEN PEDERSEN,
Petitioner and Respondent,
and
JAYME DEANE NORDAHL,
Respondent and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Douglas G. Harkin, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Clinton H. Kammerer; Kammerer Law Offices,
Missoula, Montana
For Respondent:
Terry G. Sehestedt, Attorney at Law, Missoula
Montana
&
! Submitted on Briefs: September 23, 1993
N Oi - 2 '1993
\
g. : Decided: November 2, 1993
Justice Karla M. Gray delivered the Opinion of the Court.
Cheri Ellen Pedersen (Cheri) filed a petition in the Fourth
Judicial District Court, Missoula County, claiming that Jayme Deane
Nordahl (Jayme) was the father of her yet unborn twin girls and
requesting the court to determine paternity, custody, and child
support. Jayme initially denied Cheri's claim but later admitted
that he was the father of the children after blood tests showed a
99.99% probability of paternity. He asserts error in the District
Court's calculation of child support and requests our review of its
contempt ruling against him.
A hearing on Cheri's petition was held on March 4, 1993.
During the course of the hearing, the District Court determined
that a portion of Jayme's testimony was inconsistent with his
response to a request for admission during discovery, held Jayme in
contempt, and levied a $500 fine. The court issued findings of
fact, conclusions of law, and judgment on April 13, 1993. It
determined that Jayme was the father of the twins, awarded joint
custody, and ordered Jayme to pay $1,248 per month in child
support.
We affirm the District Court's calculation of child support
and its contempt ruling.
Did the District Court err in calculating child support?
The District Court determined Jayme's total gross income by
adding the average of his 1991 and 1992 income, the average
depreciation expenses that Jayme had deducted in those years, and
the annual income attributable to his non-performing assets. After
subtracting the average of his 1991 and 1992 federal and state
income tax and social security deductions, the court calculated
Jayme's primary child support obligation. It then increased his
child support obligation by adding his pro-rata share of the cost
of child care and health insurance.
The District Court used the child support guidelines
promulgated by the Department of Social and Rehabilitative Services
pursuant to 5 40-5-209(5), MCA, in conjunction with the factors set
forth in 5 40-4-204, MCA, to determine child support. Under such
circumstances, a presumption exists in favor of a district court's
calculation of child support; we will not reverse it absent an
abuse of discretion. In re Marriage of Sacry (1992), 253 Mont.
378, 382, 833 P.2d 1035, 1038.
Jayme challenges the District Court's treatment of total gross
income, allowable deductions, and child care costs in its
calculation of child support. He first contends that the District
Court erred by averaging his 1991 and 1992 income and deductions,
arguing that 5 9 46.30.1508 and 46.30.1516, ARM, do not expressly
authorize averaging.
This contention is inconsistent with Jayme's posture at the
hearing. There, he did not object when Cheri introduced copies of
his 1991 and 1992 income tax returns into evidence. Jayme also
introduced exhibits which contained an averaging of his total and
adjusted gross incomes earned over a period of years. We will not
put a district court in error for a ruling or procedure in which
the appellant acquiesced, participated, or to which the appellant
made no objection. In re Marriage of Smith (1990), 242 Mont. 495,
501, 791 P.2d 1373, 1377. Furthermore, 5 46.30.1515(3), ARM,
expressly allows fluctuating income to be annualized by averaging
it over a period sufficient to accurately reflect earning ability.
Jayme also assertsthat the deduction of depreciation expenses
is economically necessary in his logging operation. On that basis,
he contends that 5 46.30.1508 (1)(c), ARM, requires the District
Court to deduct the depreciation expenses from gross income.
Non-cash deductions such as depreciation expenses are not
generally subtracted from gross receipts in determining gross
income. Section 46.30.1508 (1)(c), ARM. Although 5 46.30.1508
(l)(c), ARM, allows depreciation for vehicles, machinery and other
tangible assets to be deducted upon a showing of economic
necessity, the rule does not rewire a district court to do so.
Jayme establishes no abuse of discretion in the District Court's
treatment of the depreciation expenses.
Jayme also contends that the District Court ignored his
testimony regarding the fluctuating balances in his logging
business and personal bank accounts by usingtheir current balances
to calculate "income attributed to assets." The totality of
Jayme's testimony relating to the logging business and personal
accounts consisted of statements divulging their then-present
balances ($4,000 and $5,000, respectively) and the balance in his
.
logging business account in December of 1992 ($17,805) This
testimony provides a proper basis for the use of the accounts1
then-current balances to calculate income attributed to assets.
Jayme also argues that the funds in his logging account,
personal bank account, Trans America account, individual retirement
account and KEOUGH account were derived solely from his 1992 income
and, therefore, that the inclusion of these accounts in the "income
attributed to assets1'calculation resulted in a double counting of
income. We disagree. Income attributed to assets is the amount of
interest which would be earned if the non-performing assets were
liquidated and the proceeds invested. Section 46.30.1514 (1), ARM.
The District Court determined the amount of interest pursuant to
5 46.30.1514(2), ARM, and added that amount to Jayme's gross
income. Thus, no double counting of his 1992 income occurred.
Finally, Jayme argues that the court's valuation of child care
costs was speculative and that he is funding Cherils education by
paying his pro-rata share of the child care costs. These
arguments are without merit.
The District Court properly valued the child care costs
pursuant to 5 46.30.1525 (1)(a)(i), ARM. That rule provides that
child care costs may be based on estimates of the average monthly
costs of such service where receipted expenses are not available.
Here, receipted expenses were not available because the twins had
not previously been enrolled in full-time child care. Cheri
testified, however, that she had surveyed child care centers and
that the cost of day-care for two children the twins' age would
range from approximately $640 to $756 per month. This evidence
supports the District Court's valuation of child care costs at $676
per month.
Finally, nothing in the findings of fact, conclusions of law
and judgment supports Jayme's argument that he was ordered to pay
child care costs to enable Cheri to return to school. The court
found that Cheri was reasonably capable of earning $10,400 per year
if she returned to full-time work as a cosmetologist and pro-rated
the cost of necessary child care between Jayme and Cheri on that
basis.
We hold that the District Court did not abuse its discretion
in calculating child support.
Did the District Court properly hold J a p e in contempt?
Contempt orders are final and, as a general rule, unreviewable
by this Court except by writ of certiorari. Section 3-1-523, MCA.
We have created an exception in family law cases, however, and we
will review a contempt order on appeal in such a case. Our review
is limited to examining the record to determine whether the
district court acted within its jurisdiction and whether evidence
supports the finding of the court with respect to the purported
contempt. In re Marriage of Prescott (Mont. 1993), 856 P.2d 229,
231, 50 St.Rep. 801, 802. We agree with Jayme that the basis for
the exception developed for family law cases is equally applicable
to cases involving paternity, child custody and child support and,
therefore, review the District Court's contempt ruling against him.
At the March 4, 1993 hearing, the District Court found that
Jayme's testimony was inconsistent with his response to a request
for admission during discovery. On that basis, the court held
Jayme in contempt "for a false answer."
Evidence supports the District Court's finding of an
inconsistency in Jayme's statements and the corresponding falsity
of one of those statements. Cheri's counsel asked Jayme whether he
knew of any other person who had sexual intercourse with Cheri
during the period of the twins1 conception. This question mirrored
Cheri's earlier Request for Admission No. 5. Jayme testified,
consistent with his response during discovery, that he did not know
of any other person who had sexual intercourse with Cheri during
that time.
The District Court subsequently asked Jayme to state one fact
that would lead him to believe he was not the father of the twins.
Jayme testified that a specific friend, whom he named, had sexual
intercourse with Cheri during the period of conception. This
answer directly contradicts both his earlier testimony and his
discovery response. Because Jayme's statements cannot be
reconciled, the District Court properly found that one of them was
false.
Deceit committed by a party constitutes contempt of the
court's authority. Section 3-1-501(d), MCA. Thus, Jayme ' s
falsehood provides a sufficient legal basis for the District Court
to hold him in contempt. We conclude that no error occurred in the
District Court's contempt ruling.
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C h i e f Justice //