In Re the Marriage of Everett
268 P.3d 507
Mont.2012Background
- Tony Everett and Sarah Everett (nee) married in 2002 and have two children; they separated in 2007 and dissolved in 2008.
- Tony is self-employed, operates Cowboy Junk and Sticker Dude, travels for fairs and events, and reports variable income with substantial business deductions.
- Sarah, employed at a dental office, earned about $17 per hour; CSED imputed Tony at $90,000 annual income for child support during proceedings.
- District Court imputed approximately $90,000 to Tony for child support, despite Tony’s low tax-income, and adopted a parenting plan after findings of fact and conclusions of law.
- Dr. Wagner recommended appointing a parenting coordinator; the court delegated selection to a third party, who chose a local pastor.
- Tony argued (1) improper income imputation, (2) improper delegation of parenting coordinator appointment, and (3) failure to follow make-up visitation recommendations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether imputation of $90,000 annual income was an abuse of discretion | Everett contends tax returns reflect income; imputation unfairly inflated support. | Everett asserts credible evidence supports imputed income; court credited Sarah's testimony over Tony. | Imputation affirmed; court properly imputed income. |
| Whether delegating appointment of a parenting coordinator was error | Everett argues court erred by delegating duty to select coordinator to a third party. | Everett acknowledges issue raised but contends selection process acceptable. | Issue not resolved here; argument declined. |
| Whether court erred by not following make-up visitation recommendations | Everett claims make-up days should be allowed for missed visitation. | Everett notes disruption concerns; trial court denied make-up days. | Make-up days denied; court's discretion affirmed. |
Key Cases Cited
- Albrecht v. Albrecht, 2002 MT 227 (Mont. 2002) (imputed income appropriate when evidence insufficient)
- In re Marriage of Graham, 2008 MT 435 (Mont. 2008) (abuse of discretion standard in child custody)
- In the Matter of J.R., 2011 MT 62 (Mont. 2011) (weight of conflicting testimony governs)
- In re Parenting of N.S., 2011 MT 98 (Mont. 2011) (courts balance parental cooperation in custody)
- Pengra v. State, 2000 MT 291 (Mont. 2000) (timely raising issues and appellate posture)