*1 208
IN RE THE OF MARRIAGE
MARILYN ANNE OLSEN, Rеspondent, Petitioner and and RAYMOND CHARLES OLSEN,
Respondent Appellant. No. 92-116. August
Submitted on Briefs
1992.
Decided March
1993.
St.Rep.
For Petitioner and Katherine Curtis, Columbia Falls. Opinion of the Court. JUSTICE TURNAGE delivered
CHIEF fact, con- (Raymond) findings Olsen appeals marriage law, this clusions of and order entered in dissolution District, Coun- the Eleventh Judicial Flathead the District Court for ty. affirm District Court. We rephrase issues for our consideration. We
Raymond raises five as: those issues unreasonаble require Raymond Court
1. Did *4 support? child Raymond’s motion denying the District Court correct in
2. Was maintenance, support, temporary modification of a retroactive order? and health insurance
3. Did the District Court err in requiring Raymond 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 apportionment Court’s parties’ assets equitable?
Raymond and Marilyn Olsen (Marilyn) 27, were married on June 1971, in Bigfork, Montana. Two children were parties: born to the daughter, July 19,1973; born son, and a July 10,1975. born Marilyn and separated in February 1990 after was arrested for sexual assault of daughter. their Raymond plead guilty to one count of sexual assault and was sentenced to years sixteen in prison with years six suspended. Raymond was incarcerated in the Montana Statе Prison on October
Through Raymond’s employment as a truck driver for the Colum- bia Falls Alumimnn Company, and Marilyn’s homemaker, efforts as a the parties enjoyed a decent standard ofliving during their marriage. Their home in Columbia Falls $63,500 had a market value of with no They encumbrances. $43,882.33 had accumulated joint in a money market account at the time of separation. Additionally, they had personal various items of property liquid аnd assets for a marital $156,704. estate totaling Raymond’s employment provided also medi- cal insurance for the family.
After their separation, Marilyn moved the District Court for tem- porary child support and Following maintenance. a hearing, District Court ordered Raymond to pay child support of per $401.50 per month child. Raymond was also ordered to pay maintenance in the amount of per month. The $200 order allowed Marilyn to make up any deficiencies and payments maintenance from Raymond’s share of the money addition, market account. In ap- proximately year one after their separation, Marilyn obtained employment as a bartender/cocktail waitress. Her net earnings from job this were approximately per $1000 month. trial, December after a bench the District Court entered fact, findings
its conclusions оf law and decree of dissolution marriage. The District estate, Court divided the total marital valued $156,704, at equally parties. However, between the Marilyn actually $124,341 received of the marital estate. The District Court deducted estate, from half of the Marilyn’s share, added to Raymond’s maintenance, for child support, medical in- surance, uncovered future expenses liabilities, medical and incurred *5 the $43,289. ordered deduс- of The District Court a total addition for earning no Raymond would be payments cash because tions in lieu of decision the appeals the of incarcerated. income while District Court.
I child unreasonable require Did the District Court support? of income due to again
In we address what effect loss appeal, this obligation. a child We first upon support incarceration should have 197], (1993), Mooney [257 this issue in v. Brennan Mont. addressed (Cause 1020, 0229, 92-089, 5, St.Rep 50 No. decided March 848 P.2d 1993). support of a child order which Mooney involved modification case, income. In the instant we upon pre-incarceration was based Here, similar, exactly ad- although parallel, decide issue. we a original an child upon dress effect incarceration should have what addition, arising marriage. of In support order from a dissolution we an earn due tо inability determine what effect income incarceration voluntary upon for a criminal act should have maintenance and other a family obligations arising marriage. from dissolution of support Mooney, In this Court determined that incarceration does not continuing in and change constitute a circumstances so substantial upon pre-incar- of support as to make the terms a child order based 197, Moonеy, [257 P.2d] ceration income Mont. 848 unconscionable. at the as a matter of law 1023. We held District Court incorrect of requirements incarceration met the 40-4- ruling MCA, 208(2)(b)(i), justified support pay- of child modification 197, Mooney, Mont. [257 ments of a resultant loss of income. because P.2d] 848 at 1023. fact, the reviewing findings the Court’s of standard clearly findings is the are erroneous. applied
of review to be whether (1992), 139, 142, 831 Marriage In re 253 Mont. the Eschenbacher of review the District Court’s 1353, P.2d 1355. Our standard of as to interpretation of the law of law is “whether the tribunal’s conclusions Steer, (1990), v. Revenue 245 Mont. Department is correct.” Inc. 474-75, 803 P.2d Court erred in its determination Raymond contends the District income the to “annualize” his support child because it failed marriage, two-year period dissolution preceding immediate He argues and earned no income. last of he was incarcеrated which so, that had the District Court done his income over time this frame $18,828, and, therefore, would support have been his child However, would have Raymond misinterprets been lower. the term merely averages “annualized income” and two-year income over a period. an concerning issued,
When order child is part of the determining criteria used in support obligation requires district court to determine support оbligation
by applying... guidelines the uniform child support adopted by the department of social pursuant and rehabilitation services to 40-5- .... 40-4-204(3)(a), Section In referring income, MCA. to annualized Child Support Guidelines state:
“Annualized gross income” refers to income and deductions from gross figure income used to derive a for net resources available for child support.... (1990). 46.30.1513(1)(e),
Section ARM Income should be annualized accurately parent’s to reflect a producing income abilities. Section (1990). 46.30.1513(1)(e), ARM
Raymond supports argument that his income for the two years immediately preceding his dissolution should have been “an by relying nualized” upon the District Court Rules on Child Support. Under these rules it was recommended that:
All income copies years’ should be annualized and of the last two tax returns should accompany financial statements as well as current wage stubs. (1987),
District Support 1, Court Rules on Child 227 Mont. that, Raymond argues this, had the District Court done his child support obligation upon would have been based a net income of $18,828. argument This fails for three reasons.
First, very the reason it is recommended the District Court Rules on Support years Child that two of annualized income be examined is:
Without such a temporary period present examination of un- employment underemploymеnt may or indicate an unwarranted support. low amount income available of for (1987), 1, Support District Court Rules on Child 227 Mont. added). (emphasis
Second, 40-4-204(3)(a),MCA, under which was in effect at the § marriage, required time of this dissolution of the District Court is alia, support obligation by, applying determine the child inter promulgated by Support in Uniform Child Guidelines standards Services, 46.30.1501, Social and Rehabilitation Department of (1990), Court Rules on Child et.seq., and not the District ARM Support.
Third, unemployed or under parent voluntarily a is where may impute upon income “based the District Court employed, Section capacity to earn net income.” parent’s ability or added). (1990) 46.30.1513(1)(b), (emphasis ARM gross income for Raymond’s The District Court found $40,659. 1989, of year employment, his last full was $42,951. October, Raymond gross through was income for per support pay a total of month $702 was ordered to May 1992, daughter сompleted high through when his school. Thereafter, total of month Raymond per $452 was ordered through eighteen. his son turns support July in child when $42,951 figure upon income using imputing which child based, that Raymond’s the District Court reasoned lack support The employment voluntary was the result ofa criminal act. imputed Raymond Court income calculated his child pre-incarceration “as he in his though had continued that while his criminal conduct was employment.” contends resulting arising from his incarcera- voluntary, unemployment involuntary tion was and unforeseeable under the circumstances. Therefore, argues, impute the District Court failed to year unemployment as well upon involuntary income based one as he do year employment his final before was incarcerated. We agree. *7 Mooney, reprieve that not be a
In we held a criminal should offered support obligations from their сhild when we do do the same for 197, unemployed. Mooney, [257 Mont. voluntarily one who becomes Furthermore, public policy at we held it was the P.2d] 848 1022-23. 40, Chapter 4 are to “provisions of this state that the Title be promote underlying purposes chap liberally construed to purpose P.2d] at 1023. One such Mooney, Mont. [257 ter.” 40-4- for their children. Section parents provide support to requires the case at 101(4), reasoning Mooney in to MCA. We now extend case, decision ofthis Court’s bar. We hold under facts of child based purposes impute income clearly was not erroneous nor pre-incarceration his income upon a as matter law. incorrect
II Was the District Court correct in denying Raymond’s motion for retroactive modification a temporary maintenance, child support, and health insurance order?
Raymond contends the District Court erred as a matter of law in denying his motion for retroactive modification of the temporary order entered on October argues 1990. He that under 40-4- § 208(2)(b)(i), MCA, retroactive modification was warranted because unemployment due to incarceration constitutes a change in “cir cumstances so substantial and continuing as to [of make the terms the temporary order] unconscionable.” 40-4-208(2)(b)(i), Sectiоn MCA. agree, We do not and hold the District Court was correct in denying Raymond’s motion for retroactive modification of the tem porary maintenance, child support, and health insurance order.
The District Court concluded that unemployment due to incarceration did not change constitute a in circumstances so substantial continuing as to make the terms of the temporary Therefore, order unconscionable. a modification under 40-4- § 208(2)(b)(i), MCA, was not appropriate. We hold this conclusion is law, correct as a matter of and in line holding Mooney. with our
III Did the District Court err in requiring Raymond pay medical part insurance and of the uncovered future expenses medical of his children?
Raymond next contends the District Court erred in that requiring he the medical premiums insurance and a disproportionate share of uncoverеd expenses future medical for the parties’ children. As to insurance, the medical temporary order required Raymond to provide coverage order, medical for his In children. its final District Court ordered provide to continue to medical insurance for his children.
Raymond contends health insurance mandatory is not and he should required not be to bear the full brunt of medical insurance because he is longer employed. addition, no he argues Marilyn working is and has funds with which to purchase medical insurance. 40-4-204(4)(b),
Under MCA: (4) decree, Each district judgment, establishing court or order final child support obligation under this title ... must include a
217 provision addressing health coverage following insurance in the cases:
(b) In the event that health required insurance in a child judgement, decree, or order becomes to the party unavailable who it, provide through оtherwise, is to or change employment loss or must, that party in the absence of an agreement contrary, to the comparable obtain request modify insurance or that the court requirement. [Emphasis added.]
At the time temporary entered, order Raymond was still was employed and had coverage insurance for his children through his employer. When he became incarcerated and unemployed, Raymond lost his medical insurance benefits. After the insurance became him, 40-4-204(4)(b), MCA, unavailable to required that he obtain comparable Raymond insurance. was incarcerated and had no employment with which to replace However, the insurance. he did have assets in the marital estate aas means to comparable obtain insurance. $2,775
The District Court found that required would be to cover the cost ofmediсal parties’ insurance for the they children until were emancipated. Raymond insurance, Because could purchase not $2,775 the District Court ordered Raymond’s to be deducted from share of the marital estate. The District Court reasoned that deduct ing obligation insurance the only was reasonable means to insure fulfilled to provide medical insurance. We hold the District Court did err in requiring Raymond provide medical insurаnce.
Raymond also contends the District Court erred in requiring him to pay disproportionate expected share of uncovered future medical expenses parties’ of the argues children. He the future medical expenses are speculative and parties split any should expenses fifty/fifty rather than seventy-five/twenty-five.
The District Court children found that the had significant medical problems which would necessitate attention and treatment in the future. The District Court expected also found the cost of such expenses, insurance, not covered $1700. be The District Court $1350, deducted or percent, expected cost from share of the marital estate. The percent District Court derived the 75 figure by comparing Raymond’s parties’ net available resources to the net available as a resources whole. As we have hеld the District Court did determining not err in the amount of income available District Court clearly erroneous for the it was not support, we too hold percent expected for 75 responsible find that by health insurance. not covered expenses medical
IV
unreasonable?
of maintenance
the District Court’s award
Was
the District
may
proper
be
after
maintenance
An award of
to 40-4-
pursuant
§
the marital estatе
equitably divided
Court has
40-4-203, MCA.
the criteria of
202, MCA,
properly applied
§
and has
bar, the District Court
Eschenbacher,
In the case at
(b) education or sufficient necessary acquire to the time appropriate find to seeking maintenance party the to enable employment; marriage;
(c) during the living of established the standard (d) marriage; the duration spouse the
(e) condition and emotional age physical and the maintenance; and seeking sought to meet is
(f) maintenance from whom ability spouse ofthe seeking maintenance. spouse those ofthe meeting his needs while 40-4-203(2)(a) (f), through MCA. Section per to month in $200
The District Court оrdered youngest child turns through July maintenance when Thereafter, Raymond pay eighteen. $500 the District Court ordered main- through August in maintenance 1995. The total per month $16,500. tenance was Marilyn awarded the
Raymond argues that because
collection,
automobile,
house,
parties’
a 1984
and the
the silver dollar
account,
provide
had
for her
money
property
market
she
sufficient
However,
property”
to be “sufficient
property
reasonable needs.
40-4-203(1)(a),MCA,
must
property
income-producing
under
be
(1992),
income-consuming.
Marriage
rather than
In re the
VanAtta
310, 313,
3, Although
arguable
252 Mont.
829 P.2d
it is
that the
due
produce
house and the silver dollar collection will
income
value,
any
realize
appreciation
they would have to be sold to
income
production.
property
These items cannot be considered sufficient
they
prоvide
Marilyn’s
because
will not
income sufficient for
Atta,
Furthermore,
present
reasonable
needs. Van
Finally, Raymond the District Court erred contends award ing Marilyn so that could seek payments increased maintenance youngest eighteen. further after the child turns The Dis education years Marilyn acquire trict found it would take two sufficient Court training that she find might appropriate education and in order Marilyn not employment. The District Court also found that would this employment pursuing able maintain full-time while educa be Therefore, Raymond to pay tion. was ordered increased maintenance per beginning August in the of month in 1993. The $500 amount were Because have payments years. increased to continue two we not under 40-4- Marilyn appropriate employment held did have 203(1), MCA, awarding also District not err in we hold the Court did Marilyn increased maintenance.
V apportionment parties’ Was the District Court’s of the assets equitable? error, assignment his final of claims that if the
In determining of child support, District Court erred insurance, maintenance, expenses, medical and future medical those from of the property amounts should be deducted his share have did not err in its settlement. As we held the Court obligations, these we do not address determination of amount of do it was within the passing, this issue in detail. we note that province the District Court to deduct these amounts from of finding estate after that this was the half of marital e.g.: met. See In re only obligations with which the would be means 29; (1982), 200 Mont. 651 P.2d In re the Marriage Crabtree (1981), P.2d 267. Marriage Karr 192 Mont. The is affirmed. judgment District Court HUNT, concur. JUSTICES McDONOUGH WEBER concurring. specially JUSTICE GRAY 3, 4 I majority I on issues and 5. оpinion concur in the 2, notwithstanding in that on issues 1 and specially opinion concur *11 rationale. majority’s approach with my disagreement my Justice dissent in by joining As Trieweiler’s indicated regarding and white rules oflaw with Mooney, my it is view that black incarcerated former and maintenance owed an support to child the case us necessary nor wise. Nor does before spouse are neither in this has Mooney. respоndent Because case fall within the facts sufficient assets to meet appropriate and maintenance obligations, I would distinguish Mooney this case from and affirm the District Court on the basis that findings clearly its are not erroneous. us, On the record before I say cannot that the District Court erred in determining respondent’s unemployment due to incarceration did change not constitute a in circumstances so substantial and continuing as to make the terms of temporary order unconscionable.