In re the Marriage of Molly A. Frick

• Decision Date: 08 March 2011
• Docket Number: No. DA 10–0334.,DA 10–0334.
• Parties: In re the MARRIAGE OF Molly A. FRICK, Petitioner, Appellee and Cross–Appellant,andScott E. PERINA, Respondent and Appellant.
• Court: Montana Supreme Court

359 Mont. 296

249 P.3d 67

2011 MT 41

In re the MARRIAGE OF Molly A. FRICK, Petitioner, Appellee and Cross–Appellant,andScott E. PERINA, Respondent and Appellant.

No. DA 10–0334.

Supreme Court of Montana.

Submitted on Briefs Feb. 1, 2011.Decided March 8, 2011.

For Appellant: Antonia P. Marra; Marra, Sexe, Evenson & Bell, P.C.; Great Falls, Montana.For Appellee: Carl B. Jensen, Jr., Attorney at Law; Great Falls, Montana.Justice BETH BAKER delivered the Opinion of the Court.

[359 Mont. 297] ¶ 1 Respondent Scott E. Perina (Perina) appeals from the child support order of the Eighth Judicial District Court of Cascade County. Petitioner Molly A. Frick (Frick) cross-appeals. We affirm.

¶ 2 We consider the following issues on appeal:

¶ 3 1. Whether the District Court erred in the amount of income it imputed to Perina.

¶ 4 2. Whether the District Court erred by allowing insufficient travel expenses.

¶ 5 3. Whether the District Court erred in failing to comply with Admin. R.M. 37.62.130 absent findings stating the reason for deviation from the rule.

¶ 6 We consider the following issues on cross-appeal:

¶ 7 4. Whether the District Court erred in finding that Frick had no medical insurance costs or uncovered medical expenses.

¶ 8 5. Whether the District Court erred in not awarding retroactive child support.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 9 Frick and Perina were married on February 26, 2008, in Las Vegas, Nevada. Perina, an Australian citizen, was working temporarily as a “custom cutter” in the United States at the time. The parties moved to Australia to live and work on a farm owned by Perina's family corporation. After six months in Australia, Frick returned to the United States to settle outstanding immigration paperwork. The District Court found that Perina gave Frick $2,000 upon her departure to the United States. Frick did not return to Australia and later filed a petition for dissolution of marriage. Perina returned to work as a temporary employee at the coal mine in which he had previously been employed. Frick withdrew $916 from the parties' joint bank account in the United States, and withdrew approximately $2,200 from an account held jointly by her father and Perina. The parties dispute the source of the money in these accounts.

¶ 10 The parties' daughter, S.P.-F., was born in Great Falls, Montana, in late December 2008, and has lived with her mother since that time. The parties successfully mediated an agreement on a parenting plan and division of property. The sole issue remaining in dispute was the amount of child support. The District Court conducted a trial on that issue on April 21, 2010.

¶ 11 Frick testified that she expects to maintain her current employment at $11.67 per hour. She reduced her work schedule to 36 hours per week after working full-time made her monthly income $48 too high to maintain eligibility for Medicaid and day-care assistance for S.P.-F., which she otherwise would be unable to afford. Frick also contended that were she to receive child support, her income again would rise above the maximum allowable amount for Medicaid eligibility. Once she lost Medicaid, Frick testified that she would need to purchase insurance through her employer, at a cost of approximately $400 per month with a $5,000 deductible.

¶ 12 There was considerable disagreement over the proper measurement of Perina's income given his irregular employment with the coal mine. Perina was employed as a full-time mine employee in 2007, as a part-time mine employee in 2009, and as a laborer on the family farm in 2008, and had widely disparate annual incomes as a result. Perina testified that he will not be permitted to maintain full-time employment when spending sixty days per year in the United States in order to exercise his visitation rights. His employer will allow him to remain only as an “as needed” part-time employee, filling in when open shifts are available. Perina believed he would be able to obtain approximately twenty-four hours of work per week under this arrangement, at an hourly wage of $41.44. Based on these figures, he submitted a proposed annual income of $43,871.

¶ 13 Perina argued that the amount he would be forced to spend on living expenses while exercising his visitation rights also should be taken into account in calculating child support. He estimated the annual costs of such expenses, including hotel and rental car, at $10,000 to $14,000. Frick disputed Perina's proposed income, chiefly on the ground that Perina's 2009 income already reflected “as needed” employment status and nonetheless exceeded $90,000. She also argued that Perina's interest in the valuable farm owned by his family's corporation, and resulting rent-free lodging, should be taken into account.

¶ 14 On April 28, the District Court issued its Findings of Fact, Conclusions of Law and Decree of Dissolution. The court found that Frick's earnings amounted to $21,846 per year, that she would incur daycare expenses of approximately $4,000 per year, and that she had no medical insurance costs or uncovered medical expenses. After determining that Perina's average salary during his two years at the mine was $75,242, the court found an appropriate annual income for Perina to be $62,702, noting that he would be working a reduced schedule, but that his status as an “as-needed” part-time employee would be unchanged from 2009. The court also found a long distance parenting adjustment appropriate in the amount of $4,000.

¶ 15 Pursuant to the court's instructions, each party submitted proposed child support calculations in light of the court's findings. The parties disagreed on the appropriate amount of travel-related expenses allowed as an adjustment. Frick's proposals incorporated the District Court's finding of $4,000, based on the cost of two round-trip plane tickets from Brisbane, Australia, to Great Falls, Montana. Perina's proposed worksheet, however, included a proposed adjustment of $21,326. Perina arrived at this figure by multiplying mileage in excess of 2,000 miles by the current IRS business mileage rate as per his interpretation of Admin. R.M. 37.62.130, which governs long distance parenting adjustments to child support awards. His total distance traveled was 9,431 miles in each direction; this figure multiplied by four (for two round trips) and applied to the IRS business mileage rate of .495 dollars per mile is $18,296. Perina's proposed adjustment reflects an additional $4,000 for the plane tickets, and subtraction of the standard expense of $970 (measured by multiplying the IRS business mileage rate by 2,000). Frick objected to Perina's calculation on the ground that the rule only allows compensation at the standard rate for miles driven, not total miles traveled. Frick observed that miles traveled by means other than automobile are already accounted for in subsection (3)(b) of the rule. Admin. R.M. 37.62.130.

¶ 16 The District Court issued an Order re Child Support on May 28, 2010. The court awarded $728 per month in support, based on the income it had previously attributed to each party and a long distance parenting adjustment of $4,000. It did not include any amount for medical expenses or retroactive support. A Notice of Entry of Judgment was filed on June 10, 2010. Perina timely appealed, and Frick cross-appealed.

STANDARD OF REVIEW

¶ 17 We review a district court's findings of fact in a dissolution proceeding to determine whether the findings are clearly erroneous. In re Marriage of Tipton, 2010 MT 144, ¶ 12, 357 Mont. 1, 239 P.3d 116. A finding is clearly erroneous if it is not supported by substantial evidence, if the district court misapprehended the effect of the evidence, or if our review of the record convinces us that the district court made a mistake. Id. (internal citation and quotation marks omitted). Absent clearly erroneous findings, we will affirm the district court unless we identify an abuse of discretion. In re Marriage of Williams, 2009 MT 282, ¶ 14, 352 Mont. 198, 217 P.3d 67. We review a district court's conclusions of law to determine whether those conclusions are correct. In re Marriage of Bartsch, 2007 MT 136, ¶ 9, 337 Mont. 386, 162 P.3d 72.

DISCUSSION

¶ 18 1. Whether the District Court erred in the amount of income it imputed to Perina.

¶ 19 Perina argues that the District Court erred in its calculation of his income. Specifically, Perina contends that the court erred by using the “income averaging” method to arrive at its conclusion, because the testimony presented showed that he would not make more than $43,871 and because the income used in the calculation reflected a different work environment than the one he would face in the future. The $62,702 figure settled on by the court, Perina argues, does not take into account the reality of the situation—that he will be unable to earn this income as a part-time employee, absent from work 60 days each year in order to visit S.P.-F.

¶ 20 Frick responds that the $62,702 figure accurately reflects Perina's income. She observes that his average income—adjusted for the exchange rate—actually was $75,242, and thus the lower figure arrived at by the court already takes into account both Perina's status as a part-time rather than full-time employee and the costs associated with visitation. Frick also reiterates other arguments she made before the District Court, such as that Perina's partial ownership of a valuable family farm and rent-free living arrangement should be taken into account. Due to these factors, Frick maintains, Perina has a higher amount of disposable income than others with similar total income.

¶ 21 In determining child support obligations, a district court must follow the Montana Child Support Guidelines (the “Guidelines”) unless clear and convincing evidence demonstrates that their application is unjust or inappropriate in that particular case. Section 40–4–204(3)(a), MCA; Albrecht v. Albrecht, 2002 MT 227, ¶ 11, ...