IN RE MARRIAGE OF BEE

• Decision Date: 19 March 2002
• Docket Number: No. 01-013.,01-013.
• Citation: 43 P.3d 903,2002 MT 49
• Parties: In re the MARRIAGE OF Benny Lionello BEE, Jr., Petitioner and Appellant, and Renn Suzanne Lympus Bee, Respondent and Respondent.
• Court: Montana Supreme Court

43 P.3d 903

2002 MT 49

In re the MARRIAGE OF Benny Lionello BEE, Jr., Petitioner and Appellant, and

Renn Suzanne Lympus Bee, Respondent and Respondent.

No. 01-013.

Supreme Court of Montana.

Submitted on Briefs October 4, 2001.

Decided March 19, 2002.

Phyllis M. Quatman, Quatman & Quatman, Whitefish, Montana, For Appellant.

Bruce McEvoy, Warden, Christiansen, Johnson & Berg, Kalispell, Montana, For Respondent.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 Benny Lionello Bee, Jr. (Benny) appeals the judgment of the Eleventh Judicial District Court, Flathead County, Montana, regarding child support, maintenance, property distribution and award of attorney fees in the dissolution of his marriage with Renn Suzanne Lympus Bee (Renn). We affirm.

¶ 2 Benny raises the following issues on appeal:

¶ 3 1. Did the District Court err by imputing income to Benny for the purpose of setting monthly child support payments?

¶ 4 2. Did the District Court abuse its discretion by ordering spousal maintenance at $500 per month until Renn finishes her education? ¶ 5 3. Did the District Court err by valuing and distributing marital property and debts without a hearing?

¶ 6 4. Did the District Court abuse its discretion by assigning Renn's attorney fees to Benny?

¶ 7 Benny and Renn married on November 29, 1996, in Flathead County, Montana. The twins born of the marriage on February 10, 1999, are named Ezra Benlionello and Isabella Suzanne. At the time of the trial, Benny and Renn were 35 and 29 years of age, respectively.

¶ 8 Benny filed a petition for dissolution of marriage in Flathead County on January 18, 2000. Renn is the daughter of the Honorable Ted O. Lympus of the Eleventh Judicial District Court, and several district court judges accordingly recused themselves from this matter. At the request of the Honorable Katherine Curtis, this Court issued an Order that assigned the case to the Honorable Susan P. Watters of the Thirteenth Judicial District. Concurrent with that Order, Benny petitioned this Court for a writ of supervisory control on January 29, 2000, seeking the appointment of a disinterested judge to review his pending request for temporary parenting of the twins and preside over the dissolution proceedings.

¶ 9 On February 15, 2000, the District Court held a hearing on the parties' respective motions for an interim parenting plan and temporary child support. Benny sought full time parenting of the twins and alleged negligent supervision by Renn and unreasonable restrictions on his visitation. At the hearing, Benny presented medical testimony that characterized an injury to Isabella's arm as an unusual, long-bone break that was inconsistent with a fracture sustained by a child falling on the floor from a standing position.

¶ 10 Following the hearing, the parties stipulated to an interim parenting plan, which gave Renn primary residential parenting of the twins and included interim child support, insurance payments, and a regularized visitation schedule. The court approved the interim parenting plan on February 25, 2000. The parties entered a more detailed interim plan on August 9, 2000.

¶ 11 The trial ensued on October 26, 2000, during which the District Court took evidence on the past, present and future earning potential of the parties in order to determine child support obligations. Benny was employed by Bee Broadcasting, Inc., a business owned by his father, Benny Bee, Sr., for most of his working career. During the marriage, Benny worked as an operations manager, overseeing four radio stations, and earned approximately $90,000 per year. Upon the parties' separation in November 1999, Benny moved from the marital home to a house owned by his father. Within a month, he quit his job and remained unemployed for the next five months. Benny returned to Bee Broadcasting as a program manager on April 1, 2000, earning $45,000, which was half his prior salary, plus commissions. Approximately one week before trial, Benny left this job and became a music consultant to Bee Broadcasting for $2,500 per month. Benny Bee, Sr., testified that Bee Broadcasting would continue to pay Benny $30,000 per year in consulting fees regardless of whether Benny obtained full time employment elsewhere. At the time of trial, Benny's earnings for the year 2000 were $44,505.

¶ 12 Benny testified that he planned to relocate in Seattle, Washington, and estimated a radio program manager in the Seattle area would earn from $40,000 to $45,000 per year. Benny Bee, Sr., testifying as an expert, stated the average salaries in the Pacific Northwest ranged from $42,000 for an afternoon programmer up to $100,000 for a morning radio personality. Benny's father explained that one must work into a morning programming slot, and that Benny possessed the requisite talent, ability and perseverance to achieve such a position.

¶ 13 During the marriage, Renn worked as a bank teller and as a bookkeeper for Bee Broadcasting and earned about $21,000 annually, according to her 1997 and 1998 tax returns. After the birth of the twins, Renn became a full-time homemaker and caretaker. Upon separation, Renn moved with the twins to her parents' home and then relocated to Missoula, Montana, where she planned to complete her Bachelor of Science degree at the University of Montana, followed by training as a surgical technician at the College of Technology. Renn anticipated completing her education in May 2002. As a full-time student, Renn received a Pell grant of $3,300, which paid her tuition, fees and books, and a student loan of $2,300 for the fall 2000 semester.

¶ 14 The District Court entered the findings of fact, conclusions of law and decree of dissolution on November 20, 2000, from which Benny appeals.

I.

¶ 15 Did the District Court err by imputing income to Benny for the purpose of setting monthly child support payments?

¶ 16 A key issue on appeal is the District Court's imputation of income. At time of trial, Benny had a stated annual income of $30,000 per year. Although Benny hoped to find work in Seattle that paid an additional $45,000 per year, he had not yet secured a position. Nonetheless, the District Court imputed to Benny $75,000 in annual income.

¶ 17 Renn argues that Montana law allows imputation of income when a parent is voluntarily under-employed. She contends that Benny intentionally reduced his income prior to trial by leaving full-time employment and maintains Benny has excellent earning potential that affords him the opportunity to significantly increase his income in the near future.

¶ 18 Benny counters that the court's determination of child support, as well as its orders for spousal maintenance, allocation of the deficiency debt and equitable assignment of attorney fees, hinges on whether the $45,000 additional annual income imputed to Benny by the court constitutes an abuse of discretion.

¶ 19 We review a district court's award of child support to determine whether the district court abused its discretion. In re Marriage of Craib (1994), 266 Mont. 483, 490, 880 P.2d 1379, 1384. A presumption exists in favor of the judgment, and a district court will be reversed only upon a clear abuse of discretion. In re Marriage of Chiovaro (1990), 247 Mont. 185, 189, 805 P.2d 575, 577.

¶ 20 In a proceeding for dissolution of marriage, a district court must order either or both parents owing a duty of support to a child to pay an amount reasonable or necessary for the child's support. Section 40-4-204(1), MCA. The Montana Child Support Guidelines, adopted by the Department of Public Health and Human Services under the authority of § 40-5-209, MCA, state that income should be imputed when a parent is under-employed or has an unknown employment status. 37.62.106(7)(b) and (d), ARM (1998). The Guidelines must be used in all cases, unless the court finds by clear and convincing evidence that the application of the standards and guidelines is unjust in a particular case. Section 40-4-204(3)(a), MCA. Courts will attribute imputed income to a parent based on:

a) the parent's earning potential if employed full time;

b) the parent's recent work history;

c) occupational and professional qualifications;

d) prevailing job opportunities in the community and earning levels in the community.

37.62.106(6), ARM.

¶ 21 The Guidelines also state that income should be imputed to a parent who is a full-time student. 37.62.106(7)(e), ARM. However, income should not be imputed if the reasonable costs of child care for dependents in the parent's household would off-set in whole or substantial part the parent's imputed income. 37.62.106(9)(a), ARM. The undisputed evidence at trial was that the cost of child care exceeded Renn's earning power while a student. By not working outside the home, Renn estimated child care costs at a relatively low $117 per month. Renn calculated total living expenses for herself and the twins to range between $2,300 to $2,500 per month.

¶ 22 This Court consistently has upheld the principle that when a parent is voluntarily unemployed or under-employed, a court may impute income based upon his or her capacity and ability to earn. In re Marriage of Hunt (1994), 264 Mont. 159, 170, 870 P.2d 720, 727; In re Marriage of Olsen (1993), 257 Mont. 208, 215, 848 P.2d 1026, 1030. The voluntary nature of the unemployment or under-employment status must be determined as a threshold matter. See, e.g., In Matter of T.J.H. (1996), 278 Mont. 74, 923 P.2d 1070 (full time waitress' earnings imputed to mother who opted for part-time work); Chiovaro,247 Mont. 185,805 P.2d 575 (coaching fees imputed to father who chose to refrain from coaching track); Mooney v. Brennan (1993), 257 Mont. 197, 848 P.2d 1020 (income imputed to incarcerated prisoner due to voluntary nature of criminal acts); In re Marriage of Weed (1992), 254 Mont. 162, 836 P.2d 591 (minimum wage earnings imputed to voluntarily unemployed parents).

¶ 23 We also...