In re H.R.H-H.
| Decision Date | 28 March 2023 |
| Docket Number | DA 22-0500 |
| Parties | IN RE THE PARENTING OF: H.R.H-H., a minor child. CULLEN JAMES HOSKIN, Petitioner and Appellant, and ROBBYN LYRE HERGENRIDER, Respondent and Appellee. |
| Court | Montana Supreme Court |
Submitted on Briefs: March 8 2023
APPEAL FROM District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DR 21-0641 Honorable Ashley Harada, Presiding Judge
For Appellant: Adrian M. Gosch, Towe, Ball, Mackey, Sommerfeld &Gosch, Billings, Montana
For Appellee: Jill Deann LaRance, LaRance Law Firm, P.C. Billings, Montana
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, we decide this case by memorandum opinion. It shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 Cullen Hoskin appeals the final parenting plan entered by the Thirteenth Judicial District Court. Cullen argues that the District Court erred when it calculated support for the parties' minor child by imputing income to Cullen admitted into evidence and relied on an anonymous letter disparaging the child's mother, Robbyn Hergenrider; and admitted into evidence and relied on an exhibit prepared by Robbyn comparing the anonymous letter to Cullen's diary entries. We conclude that the District Court did not abuse its discretion when it imputed income to Cullen based on unsatisfactory proof of his disposable income or when it admitted the anonymous letter over Cullen's hearsay objection. The District Court improperly admitted Robbyn's exhibit comparing the letter to Cullen's diary, but this error did not prejudice Cullen's substantial rights and does not warrant a reversal. We affirm.
¶3 H.R.H-H. was born in January 2021 to Robbyn and Cullen. Since birth, H.R.H-H. has lived with Robbyn in Billings. Robbyn and Cullen are not married and have never shared a residence together. Cullen lives in Bridger, about an hour away from Robbyn's house. Robbyn repeatedly has told Cullen and his family that they are welcome to visit H.R.H-H. Shortly after H.R.H-H's birth, Robbyn brought H.R.H-H. to Bridger to visit Cullen. Cullen, however, did not travel to Billings to see H.R.H-H. between February 21, 2021, and August 24, 2021.
¶4 On August 5, 2021, Cullen filed a petition with the District Court requesting a formal parenting plan. Both Robbyn and Cullen submitted proposed parenting plans to the court. The court held a three-day bench trial in July 2022. Over Cullen's hearsay objection, the court accepted into evidence an anonymous letter that Robbyn received before the trial. The multi-page letter included significant amounts of profane language and accused Robbyn of being a "horrible" mother to H.R.H-H. The court also permitted Robbyn to enter an exhibit into evidence comparing the anonymous letter to diary entries authored by Cullen and purporting to demonstrate the grammatical similarities between the two. Cullen objected to this exhibit as improper expert testimony.
¶5 On August 2, 2022, the District Court entered its findings of fact and conclusions of law, coupled with a final parenting plan order. The court awarded primary custody to Robbyn, with Cullen receiving one weekly overnight visit beginning immediately and increased parenting time as H.R.H-H. ages. The court also required Cullen to pay child support and to contribute retroactively to H.R.H-H.'s care and medical expenses. The District Court did not determine who wrote the anonymous letter but concluded that it contained details that only someone "closely connected to the situation" would know. As a result, it forbade family members-on both sides-from providing childcare or having interactions with H.R.H-H. outside the presence of Robbyn or Cullen.
¶6 "We review a parenting plan order to determine if the court's findings are clearly erroneous." In re Marriage of Woerner, 2014 MT 134, ¶ 11, 375 Mont. 153, 325 P.3d 1244 (citation omitted). "When the findings are supported by substantial credible evidence, we will affirm the district court's decision unless a clear abuse of discretion is shown." In re Marriage of Epperson, 2005 MT 46, ¶ 17, 326 Mont. 142, 107 P.3d 1268 (citation omitted). We also review evidentiary rulings for abuse of discretion. In re Marriage of Anderson, 2014 MT 111, ¶ 11, 374 Mont. 526, 323 P.3d 895. "A district court abuses its discretion where it acts arbitrarily, without employment of conscientious judgment, or exceeds the bounds of reason resulting in a substantial injustice." In re Marriage of Anderson, ¶ 11 (citation omitted).
¶7 Cullen limits his appeal to the calculation of child support and the two evidentiary rulings. He also requests attorney's fees. Cullen argues that the District Court "failed to apply the rules of the Montana Child Support Guidelines" when it imputed income to him. He maintains that the court erred in crafting its parenting plan by relying on the anonymous letter and on Robbyn's inadmissible expert testimony comparing it with Cullen's diary entries.
¶8 Robbyn responds that the District Court correctly imputed income to Cullen because it had reason to doubt that the tax returns Cullen introduced accurately reflected his disposable income. Robbyn maintains that the anonymous letter properly was considered because it was not hearsay but admitted to show the emotional distress that Robbyn experienced when she received it. Robbyn also argues that her comparison exhibit properly was admitted as a summary of Robbyn's observations pursuant to Montana Rule of Evidence 1006. Finally, Robbyn too requests attorney's fees and costs on appeal, contending that Cullen's appeal is frivolous.
¶9 Cullen testified to his income and provided his tax returns for the previous three years. Cullen's expert witness who testified on his tax returns, reported the net income from Cullen's farm for the last three years: negative $13,917 in 2019; $53,102 in 2020; and negative $18,342 in 2021. Cullen's tax returns reflect the following gross income: negative $588 in 2019; $3,215 in 2020; and $555 in 2021. The expert testified that the income from 2020 was an anomaly because of loans that Cullen obtained as a result of COVID-19 relief legislation and income from the Western Sugar Co-Op. Cullen estimated at trial that he makes about ten dollars an hour. Cullen also testified that he has a commercial driver's license and acknowledged that he could work as a truck driver if he so desired. Robbyn admitted an exhibit over Cullen's objection reflecting the federal wage statistics for Montana truck drivers. Using these statistics, the court imputed $50,130 income to Cullen in its child support calculations because it found that Cullen could be earning that much and that this amount more "realistically" reflected Cullen's disposable income. The court also ordered that Cullen pay Robbyn $15,276 in back child support as well as $4,683 for his share of H.R.H-H.'s medical and birth expenses, noting that he had contributed nothing since the child's birth.
¶10 Cullen argues that the court did not follow the Child Support Guidelines' instructions to consider his "actual income." He maintains that it was improper to rely on the wage statistics that Robbyn provided to impute income he theoretically could earn as a commercial truck driver. Robbyn counters that it was proper to impute this income because there were multiple reasons to discount the evidence on Cullen's reported income, including his accountant's lack of credibility, the large expenditures Cullen claimed as tax deductions after he became aware that he would owe child support, the conflicting testimony on how much Cullen makes, and Robbyn's difficulty in obtaining discovery from Cullen regarding his income.
¶11 A court must consider the factors set forth in § 40-4-204, MCA, as well as the Child Support Guidelines in the Administrative Rules of Montana when determining child support. In re Marriage of Anderson, ¶ 13. "When determining income under the guidelines, the court must consider the disposable income of the parent, not their income tax returns alone." In re Marriage of Frank, 2022 MT 179, ¶ 78, 410 Mont. 73, 517 P.3d 188. "Income can never be less than zero." Admin. R. M. 37.62.105(1). Income is imputed to a parent when the parent is unemployed, underemployed, or fails to produce sufficient proof of income. Admin. R. M. 37.62.106(2). "Calculation of a parent's imputed income is based on the parent's recent work history, the parent's occupational and professional qualifications, and existing job opportunities and associated earning levels in the community or local trade area." In re Marriage of Carter-Scanlon, 2014 MT 97, ¶ 27, 374 Mont. 434, 322 P.3d 1033 (quoting Admin. R. M. 37.62.106(3)(a)-(c)).
¶12 The court heard conflicting testimony on Cullen's income and concluded that Cullen did not provide credible evidence of his disposable income beyond his tax returns. His tax returns reflected the net profit and loss from his farm, but he also testified that he estimated his income to be approximately ten dollars an hour. The tax accountant who prepared Cullen's taxes did not testify, and the accountant who did testify admitted to some errors on the tax returns and that she assumed certain deductions. The accountant acknowledged that any information on Cullen's tax returns was provided by Cullen. Cullen testified that he had recently made large purchases, including a $107,000 tractor; a $40,867 baler; and a $14,013 tractor. Cullen also testified to purchasing a...
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