No. 94-470
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
IN RE THE PATERNITY OF W.L.,
a Minor:
ELIZABETH LAMDIN,
Petitioner and Appellant,
ANGELO FERRARO,
Respondent and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Donald L. Harris, Crowley, Haughey, Hanson,
Toole and Dietrich, Billings, Montana
For Respondent:
Mark D. Parker, Parker Law Firm, Billings,
Montana
Submitted on Briefs: February 16, 1995
Decided: April 12, 1995
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Elizabeth Lamdin appeals an order in which the District Court
for the Thirteenth Judicial District, Yellowstone County, declined
to order Angelo Ferraro to pay back child support in addition to
amounts he has already paid. We affirm.
The issue is whether the court erred in waiving past child
support under § 40-6-116(4) (c), MCA.
Elizabeth Lamdin, a registered nurse who lives in Billings,
Montana, is W.L.'s mother and has raised him since his birth in
January 1991. During that time, Angelo Ferraro, W.L.'s father, has
practiced as a cardiologist in Billings and then in Oklahoma and
Washington. He has visited W.L. about six times per year. Lamdin
and Ferraro never married.
From W.L.'s birth until his first birthday, Ferraro contribut-
ed $2,000 per month to Lamdin for W.L.'s support. Lamdin stayed at
home to raise W.L. during that time, because both parents believed
it was best for their son. In February 1992, Ferraro reduced his
support payment to $1,000 per month and Lamdin returned to work.
Lamdin filed this paternity action shortly thereafter. Ferraro
paid child support of $1,000 per month until the District Court set
child support at $950 per month in October 1992. That judgment was
appealed to this Court on several issues. See In re Paternity of
W.L. (1993), 259 Mont. 187, 855 P.Zd 521. We remanded for
calculation of past and future child support.
On remand, Ferraro and Lamdin each presented their calcula-
tions of the amounts of past and future child support which should
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be ordered pursuant to the child support guidelines promulgated by
the Montana Department of Social and Rehabilitation Services.
Their calculations differed because of differences in their views
of the proper income figures and variances, deductions, exemptions,
and exceptions attributable and allowable to each of them under the
guidelines.
For purposes of calculating back child support, both Ferraro
and Lamdin divided the time from W.L. 's birth to the date of the
hearing into several segments. This was necessary because of
interim changes in the child support guidelines and in each of
their incomes and expenses. Under Ferraro's calculations, he was
responsible for child support in monthly amounts ranging from $131
to $1,476 for the time since W.L.'s birth. Lamdin calculated that
Ferraro was responsible for past child support ranging between
$1,725 and $1,988 per month. Under Lamdin's calculations, after
considering what he had already paid, Ferraro still owed her
$25,584 in back support. Under Ferraro's calculations, he had
overpaid by $20,774.
The District Court ordered Ferraro to pay Lamdin $1,341 per
month in future child support. This amount was lower than the
amount proposed by Lamdin but higher than that proposed by Ferraro.
The court did not order Ferraro to pay any back child support. In
its findings, the court stated:
The Court declines to award past child support in
addition to the support previously paid by Ferraro. In
this respect the Court has concluded that it should limit
Ferraro's liability for past support to the proportion of
expenses which he has already paid in accordance with
Section 40-6-116(c) [sic] M.C.A. To the extent that any
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amountfor varying periods of time may deviate from the
child support guidelines, the Court finds it would be
unjust to Ferraro and inappropriate in this case to
require additional past support under Section 40-6-
116(6) (a) M.C.A. . .
. . .
The amounts paid by Ferraro have met or exceeded the
actual living expenses of [W.L. 1. Lamdin testified that
the total living expenses attributed to LW.L.1 is
currently $1,092 per month. TI?at amount seems liberal to
the Court. Such amount should be greater than it was in
the child's early life. Of this amount day care consumed
$330 per month. Therefore the previous amounts paid by
Ferraro have substantially met or exceeded the actual
living expenses attributed to [W.L.I.
. .
One of the goals of a child support calculation
where parents have significant income, as here, is that
the child should continue to maintain a standard of
living as if his parents were living together. Here the
parents never did live together. The Court is of the
opinion that future child support should be paid for the
purpose of maintaining for [W.L.] a standard of living
appropriate to the income of his parents. This is
accomplished by assessing such support in accordance with
the child support guidelines. However, for past years
[W.L.] has lived very well on the support already paid by
Ferraro. Lamdin has not accumulated debt by reason of
any failure of Ferraro to pay a greater support.
Lamdin appeals only the portion of the District Court's order
waiving additional back child support
Did the court err in waiving past child support under § 40-6-
116(4) (c), MCA?
Section 40-6-116, MCA, provides, in relevant part:
Judgment or order. (1) The judgment or order of the
court determining the existence or nonexistence of the
parent and child relationship is determinative for all
purposes.
.
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(3) . . .
(b) Except when the financial responsibility of a
responsible parent is in the process of being determined
pursuant to the administrative procedure provided in
40-5-225, the judgment or order must contain a provision
concerning the duty of child support. .
(4) (a) Support judgments or orders ordinarily must
be for periodic payments, which may vary in amount.
(b) In the best interest of the child, a lump-sum
payment or the purchase of an annuity may be ordered in
lieu of periodic payments of support.
(c) The court may limit the father's liability for
past support of the child to the proportion of the
expenses already incurred that the court considers just.
(5) In determining the amount to be paid by a parent
for support of the child and the period during which the
duty of support is owed, a court enforcing the obligation
of support shall consider all relevant facts, including:
(a) the needs of the child, including medical needs;
(b) the standard of living and circumstances of the
parents;
(c) the relative financial means of the parents;
(d) the earning ability of the parents;
(e) the need and capacity of the child for educa-
tion, including higher education;
(f) the age of the child;
(4) the financial resources and the earninq ability
of the child;
(h) the responsibility of the parents for the
support of others;
(i) the value of services contributed by the
custodial parent;
(j) the cost of day care for the child; and
(k) any custody arrangement that is ordered or
decided upon.
(6) (a) Whenever a court issues or modifies an order
concerning child support, the court shall determine the
child support obligation by applying the standards in
this section and the uniform child support guidelines
adopted by the department of social and rehabilitation
services pursuant to 40-5-209. The guidelines must be
used in all cases, including cases in which the order is
entered upon the default of a party and those in which
the parties have entered into an agreement regarding the
support amount. Averified representation of a defaulting
parent's income, based on the best information available,
may be used when a parent fails to provide financial
information for use in applying the guidelines. The
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amount determined under the guidelines is presumed to be
an adequate and reasonable support award, unless the
court finds by clear and convincing evidence that the
application of the standards and guidelines is unjust to
the child or to any of the parties or is inappropriate in
that particular case.
(b) If the court finds that the guideline amount is
unjust or inappropriate in a particular case, it shall
state its reasons for finding that the application of the
standards and guidelines is unjust to the child or a
party or is inappropriate in that particular case.
Similar reasons must also be stated in a case in which
the parties have agreed to a support amount that varies
from the guideline amount. Findings that rebut and vary
the guideline amount must include a statement of the
amount of support that would have ordinarily been ordered
under the guidelines.
(c) If the court does not order a parent owing a
duty of support to a child to pay any amount for the
child's support, the court shall state its reasons for
not ordering child support.
The formula for determining an appropriate amount of child support
is further detailed in the child support guidelines adopted by the
Department of Social and Rehabilitation Services pursuant to 5 40-
5-209, MCA. See 46.30.1501 through .1549, ARM. While the statute
and guidelines attempt to be specific for every possible situation,
the statute reserves some discretion to the district court. E.g.,
U [tlhe court may limit the father's liability for past support of
the child to the proportion of the expenses already incurred that
the court considers just" under subsection (4) (c); 'I Ii1 f the court
finds that the guideline amount is unjust or inappropriate in a
particular case . . . I' under subsection (6) (b); and 'I [ilf the court
does not order a parent owing a duty of support to a child to pay
any amount for the child's support .I' under subsection (6) (cl.
Lamdin's argument on appeal is based primarily upon the
absence in the court's order of a statement of the amounts of past
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child support which would have been due under the child support
guidelines. Lamdin argues that this omission violates subsection
(6)(b) above and the law of the case as established in this Court's
opinion in the first appeal. She also argues that the court's
order is fatally flawed because it fails to state that divergence
from the guidelines was justified by clear and convincing evidence,
as required under subsection (6) (a), above.
In this Court's opinion on the first appeal of this case, we
discussed the District Court's failure to apply the child support
guidelines as to future support. In then briefly discussing the
issue of past support, we wrote:
As discussed under Issue I, departures from the guide-
lines must comply with § 40-6-116(6) (a) and (b), MCA. On
remand, the District Court is directed to make such
adjustments to its findings, conclusions, and order
concerning past child support as are necessary as a
result of this Opinion.
Paternity of W.L., 855 P.2d at 523.
Section 40-6-116(4) (c), MCA, which specifically addresses back
child support, was not cited in the first appeal. The statute does
not specify whether all of the provisions of subsections (6) (a) and
(b) must still be met when the provisions of subsection (4) (c),
specifically relating to past support, are applied. In view of the
statement in subsection(6) (a) that child support obligations shall
be determined "by applying the standards in this section," which
reference includes subsection (4) cc), it is arguable whether all of
the provisions of subsections (6) (a) and (b) still apply. However,
we conclude that even if Lamdin is correct as to the intent of the
statute, that does not control the resolution of this appeal, for
the following reasons.
No civil case shall be reversed by reason of error which would
have no significant impact upon the result. Rule 14, M.R.App.P.;
In re Marriage of Cannon (1985), 215 Mont. 272, 275, 697 P.Zd 901,
903. Where there is no showing of substantial injustice, the error
is harmless and may not be used to defeat the judgment. In re
Marriage of Green (19791, 181 Mont. 285, 289, 593 P.2d 446, 449.
We are not here presented with a case in which there was
insufficient evidence as to the proper amount of past child support
under the child support guidelines. The District Court was
presented with abundant evidence on that point. The amount of
additional back child support ordered (none) is within the range of
the evidence presented at trial.
Further, had the District Court set forth in its order the
amounts of back child support required under the child support
guidelines, and stated that clear and convincing evidence supported
a variance, the court would have retained the discretion under
subsection (4) (c) to limit past support. The court's order sets
forth ample justification for its decision not to award additional
past child support. As the court pointed out, the amounts actually
paid by Ferraro in the past substantially met or exceeded W.L.'s
actual past living expenses as described at trial, without the
necessity of including anv monetary contribution by Lamdin.
We conclude that there has been no showing of substantial
injustice as a result of the court's failure to set forth the
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guideline amounts for past child support. We similarly conclude
that there has been no showing of substantial injustice as a result
of the court's failure to set forth the standard of clear and
convincing evidence.
Lamdin also maintains that Montana's statutory scheme violates
W.L.'s right to equal protection. She contends Montana's laws
discriminate between legitimate and illegitimate children in that
the statutes concerning child support following a dissolution of
marriage do not include a provision equivalent to 5 40-6-116 (4) (cl,
MCA. This argument was first raised on appeal. Lamdin did not
notify the Montana Attorney General of her challenge to the
constitutionality of these statutes at the district court level, as
required under § 27-8-301, MCA. Absent such notice, and absent
development of the record on this issue at the trial court level,
we will not consider the argument on appeal. See Femling v.
Montana State University (1986), 220 Mont. 133, 139, 713 P.2d 996,
999.
No useful purpose would be served by remanding this case to
require the District Court to insert into its order its calcula-
tions of the amounts of past child support due under the child
support guidelines and to recite the clear and convincing evidence
standard for variance from the guidelines. The court's decision
not to award additional past support is justified under the
rationale set forth in the court's findings, conclusions, and
order.
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Justice W. William Leaphart, dissenting.
I dissent. The majority has affirmed the District Court in
waiving past child support under § 40-6-116(4) (c), MCA. Lamdin
contends that the District Court erred by waiving past due child
support without first calculating what those support payments would
have been, as required by 5 40-6-116(6) (b), MCA. I agree.
Subsection (6)(a) very clearly requires that the guidelines must be
used in all cases. Subsection (6) (b) requires that, "Findings that
rebut and vary the guideline amount must include a statement of the
amount of support that would have ordinarily been ordered under the
guidelines." Subsection (c) then requires that the court, if it
does not order the parent owing a duty of support to pay any amount
for support, "shall state its reasons for not ordering child
support." The obvious intent is to require the District Court to
first establish what the guidelines require by way of child support
before the court determines whether it is appropriate to vary or
waive that amount. Without first knowing what the guidelines
require, it is impossible for the District Court (in the first
instance) or this Court (on appeal) to know whether a waiver or
variance is "unjust or inappropriate" in a particular case. In the
absence of guideline calculations, this Court is left with no
reference point in determining whether the District Court‘s waiver
amounts to a "substantial injustice."
The legislature has stated that the guidelines "must be used
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in all cases." ulMustc' is mandatory and "all" means every. Neither
concept leaves room for any exceptions.
Justice James C. Nelson joins in the foregoing dissent of
Justice W. William Leaphart.
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