Marriage of Olsen, In re, 92-116

Docket NºNo. 92-116
Citation257 Mont. 208, 848 P.2d 1026
Case DateMarch 05, 1993
CourtUnited States State Supreme Court of Montana

Page 1026

848 P.2d 1026
257 Mont. 208
In re the MARRIAGE OF Marilyn Anne OLSEN, Petitioner and Respondent,
Raymond Charles Olsen, Respondent and Appellant.
No. 92-116.
Supreme Court of Montana.
Submitted on Briefs Aug. 6, 1992.
Decided March 5, 1993.

Page 1028

[257 Mont. 211] Patrick D. Sherlock, Sherlock & Nardi, Kalispell, for respondent and appellant.

Katherine R. Curtis, Kaplan & Curtis, Columbia Falls, for petitioner and respondent.

TURNAGE, Chief Justice.

Raymond Olsen (Raymond) appeals the findings of fact, conclusions of law, and order entered in this dissolution of marriage by the District Court for the Eleventh Judicial District, Flathead County. We affirm the District Court.

Raymond raises five issues for our consideration. We rephrase those issues as:

1. Did the District Court require Raymond to pay unreasonable child support?

2. Was the District Court correct in denying Raymond's motion for retroactive modification of a temporary child

Page 1029

support, maintenance, and health insurance order?

[257 Mont. 212] 3. Did the District Court err in requiring Raymond to pay medical insurance and part of the uncovered future medical expenses of his children?

4. Was the District Court's award of maintenance unreasonable?

5. Was the District Court's apportionment of the parties' assets equitable?

Raymond and Marilyn Olsen (Marilyn) were married on June 27, 1971, in Bigfork, Montana. Two children were born to the parties: a daughter, born July 19, 1973; and a son, born July 10, 1975. Raymond and Marilyn separated in February 1990 after Raymond was arrested for sexual assault of their daughter. Raymond plead guilty to one count of sexual assault and was sentenced to sixteen years in prison with six years suspended. Raymond was incarcerated in the Montana State Prison on October 25, 1990.

Through Raymond's employment as a truck driver for the Columbia Falls Aluminum Company, and Marilyn's efforts as a homemaker, the parties enjoyed a decent standard of living during their marriage. Their home in Columbia Falls had a market value of $63,500 with no encumbrances. They had accumulated $43,882.33 in a joint money market account at the time of separation. Additionally, they had various items of personal property and liquid assets for a marital estate totaling $156,704. Raymond's employment also provided medical insurance for the family.

After their separation, Marilyn moved the District Court for temporary child support and maintenance. Following a hearing, the District Court ordered Raymond to pay child support of $401.50 per month per child. Raymond was also ordered to pay maintenance in the amount of $200 per month. The order allowed Marilyn to make up any deficiencies in the support and maintenance payments from Raymond's share of the money market account. In addition, approximately one year after their separation, Marilyn obtained employment as a bartender/cocktail waitress. Her net earnings from this job were approximately $1000 per month.

In December 1991, after a bench trial, the District Court entered its findings of fact, conclusions of law and decree of dissolution of marriage. The District Court divided the total marital estate, valued at $156,704, equally between the parties. However, Marilyn actually received $124,341 of the marital estate. The District Court deducted from Raymond's half of the estate, and added to Marilyn's share, Raymond's obligation for child support, maintenance, medical insurance, uncovered future medical expenses and incurred liabilities, [257 Mont. 213] for a total addition of $43,289. The District Court ordered the deductions in lieu of cash payments because Raymond would be earning no income while incarcerated. Raymond appeals the decision of the District Court.


Did the District Court require Raymond to pay unreasonable child support?

In this appeal, we again address what effect loss of income due to incarceration should have upon a child support obligation. We first addressed this issue in Mooney v. Brennan (1993), --- Mont. ----, 848 P.2d 1020. Mooney involved modification of a child support order which was based upon pre-incarceration income. In the instant case, we decide a similar, although not exactly parallel, issue. Here, we address what effect incarceration should have upon an original child support order arising from a dissolution of marriage. In addition, we determine what effect an inability to earn income due to incarceration for a voluntary criminal act should have upon maintenance and other family support obligations arising from a dissolution of marriage.

In Mooney, this Court determined that incarceration does not constitute a change in circumstances so substantial and continuing as to make the terms of a child support order based upon pre-incarceration income unconscionable. Mooney, at 1023. We held the District Court was incorrect as a matter of law in ruling that incarceration met the requirements of § 40-4-208(2)(b)(i), MCA, and justified a modification of child

Page 1030

support payments because of a resultant loss of income. Mooney, at 1023.

In reviewing the District Court's findings of fact, the standard of review to be applied is whether the findings are clearly erroneous. In re the Marriage of Eschenbacher (1992), 253 Mont. 139, 142, 831 P.2d 1353, 1355. Our standard of review as to the District Court's conclusions of law is "whether the tribunal's interpretation of the law is correct." Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.

Raymond contends the District Court erred in its determination of child support because it failed to "annualize" his income for the immediate two-year period preceding the dissolution of marriage, the last of which he was incarcerated and earned no income. He argues [257 Mont. 214] that had the District Court done so, his income over this time frame would have been $18,828, and, therefore, his child support obligation would have been lower. However, Raymond misinterprets the term "annualized income" and merely averages his income over a two-year period.

When an order concerning child support is issued, part of the criteria used in determining the child support obligation requires the district court to determine the support obligation

by applying ... the uniform child support guidelines adopted by the department of social and rehabilitation services pursuant to 40-5-209....

Section 40-4-204(3)(a), MCA. In referring to annualized income, the Child Support Guidelines state:

"Annualized income" refers to gross income and deductions from gross income used to derive a figure for net resources available for child support....

Section 46.30.1513(1)(e), ARM (1990). Income should be annualized to accurately reflect a parent's income producing abilities. Section 46.30.1513(1)(e), ARM (1990).

Raymond supports his argument that his income for the two years immediately preceding his dissolution should have been "annualized" by relying upon the District Court Rules on Child Support. Under these rules it was recommended that:

All income should be annualized and copies of the last two years' tax returns should accompany financial statements as well as current wage stubs.

District Court Rules on Child Support (1987), 227 Mont. 1, 5. Raymond argues that, had the District Court done this, his child support obligation would have been based upon a net income of $18,828. This argument fails for three reasons.

First, the very reason it is recommended by the District Court Rules on Child Support that two years of annualized income be examined is:

Without such examination a temporary period of present unemployment or underemployment may indicate an unwarranted low amount of income available for support.

District Court Rules on Child Support (1987), 227 Mont. 1, 5 (emphasis added).

Second, under § 40-4-204(3)(a), MCA, which was in effect at the time of this dissolution of marriage, the District Court is required to determine the child support obligation by, inter alia, applying the [257 Mont. 215] standards in the Uniform Child Support Guidelines promulgated by the Department of Social and Rehabilitation Services, § 46.30.1501, ARM (1990), et seq., and not the District Court Rules on Child Support.

Third, where a parent is voluntarily unemployed or underemployed, the District Court may impute income "based upon the parent's ability or capacity to earn net income." Section 46.30.1513(1)(b), ARM (1990) (emphasis added).

The District Court found that Raymond's gross income for 1989, his last full year of employment, was $40,659. Raymond's gross income for 1990, through October, was $42,951. Raymond was ordered to pay a total of $702 per month in child...

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