Marriage of Anderson, 323 P.3d 895

Chad and Karen Ann Anderson divorced after separating in 2009; they have four children (ages 4–10 at time of trial).
Karen Ann obtained a one-year Order of Protection in 2009; Chad never completed supervised visits and had not seen the children since 2009.
Chad moved to dissolve the marriage and sought primary residential custody; Karen Ann sought primary custody with supervised visitation for Chad. Trial occurred May 8, 2013.
At the time of the decree Chad was unemployed (living in Louisiana with parents); his prior earnings were $56,000 (2010), $55,000 (2011), and ~$14,600 (2012). He had not paid child support since 2009 but had claimed the children on tax returns.
Karen Ann received social security payments for the children and disability benefits; the court found she, with support, was a capable parent. A counselor testified that two older children suffer anxiety/PTSD and fear reunification; counselor relayed the children’s wishes.
The District Court awarded primary custody to Karen Ann and ordered Chad to pay $1,190/month child support retroactive to Jan 1, 2011, using a three‑year income average. Chad appealed.

Issue	Chad's Argument	Karen Ann's Argument	Held
Whether child support may be calculated by averaging Chad’s income over the prior three years	Court erred by averaging three years and failing to treat Karen Ann’s social security as income to reduce Chad’s obligation	Averaging fluctuating income is permissible; social security benefits to the child are not income for parent’s support calculation	Court affirmed: income averaging is permissible; social security disability payments for the child are not counted as parental income
Whether the court properly considered the children’s counselor’s testimony about the children’s wishes and fears	Counselor testimony about children’s memories/fear was inadmissible or over-relied upon	Testimony about children’s wishes and adjustment is admissible under §40-4-214 as a statutory exception to hearsay; counselor’s input is appropriate for best-interest analysis	Court affirmed: district court did not abuse discretion in relying on counselor’s testimony to determine children’s wishes and best interests

Albrecht v. Albrecht, 311 Mont. 412, 56 P.3d 339 (Mont. 2002) (recommends considering at least two years of income when determining gross income for child support)
In re Marriage of Frick, 359 Mont. 296, 249 P.3d 67 (Mont. 2011) (approves use of income averaging for child support)
In re Marriage of Tummarello, 363 Mont. 387, 270 P.3d 28 (Mont. 2012) (standard of review for parenting-plan factual findings and child support awards)
In re O.A.W., 335 Mont. 304, 153 P.3d 6 (Mont. 2007) (review of evidentiary rulings for abuse of discretion)
In re Marriage of Bukacek, 274 Mont. 98, 907 P.2d 931 (Mont. 1995) (court may rely on professional evaluations rather than interviewing children directly)
In re Marriage of Drake, 310 Mont. 114, 49 P.3d 38 (Mont. 2002) (§40-4-214 is a statutory exception to hearsay for children’s statements)