Marriage of Hunt, In re

Decision Date17 March 1994
Docket NumberNo. 93-379,93-379
Citation264 Mont. 159,870 P.2d 720
PartiesIn re the MARRIAGE OF Catherine Ann HUNT, Petitioner and Respondent, and Delbert Orton Hunt, Respondent and Appellant.
CourtMontana Supreme Court

V. Joe Leckie, Billings, for respondent and appellant.

Kevin T. Sweeney, Sweeney & Healow, Billings, for petitioner and respondent.

WEBER, Justice.

Delbert Orton Hunt appeals the decision of the District Court of the Thirteenth Judicial District, Yellowstone County, in a proceeding initiated by him to reduce child support. Mr. Hunt also appeals the court's decision in petitioner Catherine Ann Hunt's cross-motion which placed conditions on his visitation privileges. We affirm in part, reverse in part and remand to the District Court for a redetermination of child support.

Mr. Hunt presents the following issues on appeal:

I. Can the joint custodial rights of one parent be made inferior to children's outside activities when the commitment to such activities was the sole decision of the other joint custodian?

II. Did the District Court abuse its discretion in unilaterally placing conditions upon one joint custodian without imposing those conditions upon both joint custodians?

III. Did the District Court err in computing the proper child support amount of the appellant?

IV. Did the District Court abuse its discretion in ordering the appellant to sign a wage assignment in the amount of $500.00 per month over and above all amounts collected by the Child Support Enforcement Division for unpaid back child support and current child support?

This case is a particularly disturbing example of the husband's efforts to evade his duties and responsibilities as a parent concerning the support of his children subsequent to a dissolution of marriage. The marriage of Catherine Ann Hunt and Delbert Orton Hunt was dissolved on April 26, 1991, in Yellowstone County, Montana. At the time of the dissolution, the District Court ordered Mr. Hunt to pay $800 per month for the support of the parties' two minor children. Mrs. Hunt testified that after the dissolution, Mr. Hunt told her she would never see a penny of child support from him.

Indeed, since that time, Mr. Hunt has seemed to go out of his way to avoid paying any child support to Mrs. Hunt voluntarily. The only child support Mrs. Hunt has received has been seized involuntarily from Mr. Hunt. Mr. Hunt has not cooperated in the least in this respect and has been held in contempt of court for failing to pay child support. The District Court stated in its findings and conclusions as follows:

8. It is unarguably clear to the Court that Delbert Hunt refuses to pay child support and will go to some effort to evade his support obligation. Delbert Hunt is in contempt of court. His employer may be assisting him in support avoidance. Delbert Hunt comes to the Court arguing that this child support should be reduced, but since the time of termination of garnishment of support with the end of his summer job, he has paid no sums whatsoever to his former wife for the care of his children. Delbert Hunt has the ability to pay child support but simply refuses to pay.

Mrs. Hunt received $4,427.48 for child support then owing when Mr. Hunt sold real property in Billings in July of 1991. Through seizure of 1992 wages, Mrs. Hunt received $3,641.40. With the additional amount of Mr. Hunt's share of unpaid medical expenses for the children of $469.55, Mr. Hunt owed a total of $10,014.15 to Mrs. Hunt as of December 23, 1992, the time of trial on his petition for modification of child support.

A witness from the Child Support Enforcement Division of the Montana Department of Social & Rehabilitation Services testified that it was reported to that agency that Delbert Hunt was going by or using the pseudonym of "Delmar Hunt" in Oregon and bragging about not having to pay child support. That agency has had a difficult time in its collection efforts in attempting to extract support money from Mr. Hunt.

In his petition for modification of child support, Mr. Hunt requested that his support payments be reduced to $396--$198 per child per month. After recalculating the amount of support according to the child support guidelines, the District Court reduced the monthly obligation from $800 to $741--$370.50 per child. In making this calculation, the court imputed income to Mr. Hunt of $5,000, concluding that Mr. Hunt was voluntarily unemployed during seven months of the year when he was not working as an aerial fire fighter pilot in Oregon from May to October. The court also considered per diem payments of $6,120 annually which Mr. Hunt was paid and which defrayed his costs of self support.

Mr. Hunt also receives a bonus at the end of the fire fighting season from his employer. This bonus has not been available for garnishment as his employer has financed a pickup truck for him and takes an annual payment out of the end-of-season bonus.

Mr. Hunt's winter unemployment has been a factor since the parties' dissolution of marriage; prior to that time Mr. Hunt worked during the winter months as a pilot and his annual income was considerably higher than it has been since the time of the dissolution. While Mr. Hunt has contended that there is no employment for him in his field during the winter, the court was not convinced that he could not earn income during that period.

In addition to modifying the amount of support, the District Court ordered that Mr. Hunt sign a wage assignment in the amount of $500 per month over and above all amounts collected by the Child Support Enforcement Division for unpaid back child support.

In response to Mr. Hunt's petition for modification of child support, Mrs. Hunt filed a cross-motion to clarify the parties' joint custody plan and "re-tool" it due to Mr. Hunt's refusal to communicate with her, particularly when he is exercising his weekend visitation privileges. Mr. Hunt had refused to let her know where he would take the children during those weekends and has insisted that all communications regarding the children be conducted through third persons--specifically, his mother or his attorney.

The District Court ordered that Mr. Hunt give Mrs. Hunt 48 hours advance notice for each visitation period; that he provide her with his home address and telephone number; that he provide her with an itinerary of each visitation, including the address and telephone number of the place where each visit is to occur; and that he provide Mrs. Hunt with a time for commencement and conclusion of each visit. The court also ordered that priority be given in scheduling visits to the children's outside activities.

Also in response to Mrs. Hunt's cross-motion, the court awarded the 1992 tax exemption for both children to Mrs. Hunt. The court further ordered that Mr. Hunt is not entitled to the exemption for the parties' son as provided by the decree of dissolution unless he is current in paying his child support.

Issues I & II: Modifications to Visitation

Appellant's first two issues both deal with limitations placed on Mr. Hunt's exercise of his visitation privileges; Issue I involves the court's prioritizing the children's prescheduled activities during the visitation periods. Specifically as to this issue, the District Court addressed whether the husband could unilaterally change the son's plans for weekends when the son was scheduled to participate in organized team sports.

Issue II involves the court's ordering Mr. Hunt to inform Mrs. Hunt of his itinerary and whereabouts during the time he exercises visitation with the children. As both Issues I and II relate to the ability of the District Court to place restrictions and conditions on visitation, we consider them together. The question common to them both is whether the limitations were justified here.

Visitation is an inherent part of child custody, in which the district courts have broad powers to determine all problems concerning custody and visitation. Kanvick v. Reilly (1988), 233 Mont. 324, 329, 760 P.2d 743, 747. The standard of review for custody and visitation is whether substantial credible evidence supports the district court's judgment. In re the Marriage of Nash (1992), 254 Mont. 231, 234, 836 P.2d 598, 600. We will overturn a court's custody or visitation decision only when the court's findings and conclusions clearly demonstrate an abuse of discretion. In re the Marriage of Anderson (1993), 260 Mont. 246, 252, 859 P.2d 451, 454. Thus, the issue before us in this case is whether the court abused its discretion by placing limitations and conditions on the exercise of Mr. Hunt's visitation. See In re the Marriage of Wackler (1993), 258 Mont. 12, 16, 850 P.2d 963, 966.

The circumstances behind these two issues are as follows: The parties share joint custody of their two children. Mrs. Hunt has primary physical custody of the children and Mr. Hunt enjoys liberal visitation. Mr. Hunt has insisted upon keeping the details of his place of residence, telephone number, and other pertinent information a secret from Mrs. Hunt. He has not allowed Mrs. Hunt to contact him directly regarding visitation or other matters involving the children and has forced her to contact third parties whenever she has a need to communicate with him for any reason. During the times Mr. Hunt exercises visitation, he has refused to permit Mrs. Hunt to know the whereabouts of the children.

During the approximate five-month period from June through October when he is employed, Mr. Hunt does not exercise visitation frequently because of the nature of his job as a pilot; however, during the remaining months of the year, he generally has the children with him on alternating weekends. This has caused problems for Mrs. Hunt because Mr. Hunt will not inform her where he will be during these times and often takes the children out of Billings where they reside with Mrs. Hunt. The record further...

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15 cases
    • United States
    • Montana Supreme Court
    • 19 March 2002
    ...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......
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