MARRIAGE OF NIKOLAISEN
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NO. 92-241 IN THE SUPREMECOURT OF THE STATE OF MONTANA 1993 IN RE THE MARRIAGE OF JOANN JOCELYN NIKOIAISEN, Petitioner and Appellant, and ALAN KRIS NIKOLAISEN, Respondent APPEAL FROM: and Respondent. District Court of the Fifteenth Judicial District, In and for the County of Sheridan, The Honorable M. James Sorte, Judge presiding. COUNSEL OF RECORD: For Appellant: Richard Billings, J. Carstensen, Montana Attorney at Law, For Respondent: Laura Christoffersen, & Knierim, Wolf Point, Filed: Gallagher, Montana Archambeault, Justice William E. Appellant the JoAnn Fifteenth the divorce decree JoAnn in consideration 2. as child the the other County, three of modifying for our as follows: its discretion children? err his issues minor the of "legitimate Court abuse Court provisions in in allowing Chapter modifying respondent 12 bankruptcy business expenses" when District Court in failing educational to plan to order it as loans? Did the pay Joey's Alan and Joey Plentywood. decree farm is resided in was entered near a 1985 to the children. physical custody were calculated Plentywood 8, of on August 4, into the marriage. The parties the original until 1987. Currently, entry Since of an accountant lives in the of 1987 the the to decree, the children present, pursuant 2 lives on his have period had physical Joey to Joey parties an extended Alan in dissolution Alan Both over 1972, and farmer/rancher. Billings. children respondent married and is and custody err were born on June Plentywood counselor physical From Nikolaisen Two children primarily the District a judgment and custody. and rephrase of Court. and remand. this Court the support? 3. to we reduce and visitation Did incorporate to of from Sheridan support and reverse presents opinion appeals Court, child District the Nikolaisen District part the custody well Jocelyn which Did delivered regarding (Joey) 1. Sr., Judicial We affirm child Hunt, time. custody has a of had had joint primary custody of agreement signed agreement does Both by both not provide children have The oldest child, She suffers from for Jessica, condition poor is posture, Joshua tall was both reside parents respond to Jessica to her to spine, wear wear a back difficulty he has have been trial. If deformity also also the experienced. been have and five feet diagnosed slightly as high Currently, weight. Billings. which getting has position their not children been correct would been more able to the that she will Alan Billings Plentywood, and had taken Alan the successful. get her cooperation to determine On one occasion, in of He was excessive Joey the is He has difficulty brace getting appointments doctor had taken efforts had in back trial. may time able to to get curvature in not force her brace. Alan's care and attention. as kyphosis. pain of his the in 170 lbs. Joey at result time treatment. and has his the from have old back problem with medical the at resulting children Both old cases medical known will and custody 1988. require deformity it some weight pressure which approximately a severe blood in 11 years and weighed having back decree after was 14 years untreated and custody ailments a round left The original parties. the to course made an appointment for found spinal out children that to wear from future x-rays. Joey Flathead 3 While the Joey brace. Jessica's Upon had canceled Lake. his in has medical condition. orthopedic arrival the is Alan regarding of Jessica's with Jessica from appointment Both parents weight problem. Joshua, with also with good pounds, in the father's to of summer Joshua summer was regained plus he has put Alan discovered that weight. rechecked in advise Alan method of Joshua has Billings, that by during part year, Jessica Alan. spend has Joey. of 37 that blood returned a medical Joshua's that visit, pressure do or exercise at lost, due to his blood to a membership pounds had been pressure failed believes 20 15 pounds. he has During either and purchased have the summer has which has failed is the On July 2, with she 1991, Alan originally eroded the to best YMCA which refused would not the District in Plentywood 4 agreed with time custody primary and on school increasingly that were gradually Alan stated two weeks Joey lost was discontinued. that weight to have Joey rights agreement frustrated summer weight. Joey Joshua used. visitation custody Joey which loss not asked 1989, months, program approximately may have high she did. weight Alan's the Alan summer a weight program the on some additional excessive the Joshua's approximately the Every with in lost Joshua Joshua deal in of care, before. has care 1990 Joey's 1990, best participates the summer of the Plentywood, his attendance, returned than on how to During beginning heavier to in in results. and the While Alan When Joshua At differ of and have the holidays. to force with Jessica Court over the ordered Labor the her to in been children Over visit upon past father. visit Jessica with to Day weekend. On one occasion, offering Joey enticed to buy him tickets Communication of the children to a concert between when of advised continually the failed even though progress and medical Both parties that were appointed The District Court child support. psychologist Joey. Conclusions District Alan of such events Joey has educational the modification recommended that the District of Law and Order. their Court Litem 5 of to live its a plan. custody and continue visitation. the outcome of determine Joey appeals Court. Joey the litigation. filing to desire issued for pending and the the children expressed impedes ad Litem ad that her needs of the children, fact, 1991, Guardian with Alan counters were stayed action of custody want to live and physical a Guardian proceedings Both March 6, 1992, to notify addition, the children on November 19, Both children to the welfare children's for and in 12 bankruptcy was held the to Billings. visitation, The children hearing In of a motion accustomed encourage Chapter by conditions. to meet the medical does not regard he has attended date. Alan have filed and are now well is failing advise Joey claims and support. and time to with Joey has failed down. activities, his visitation in Billings. the parents has broken the children's Alan's Joshua to cut short the Findings and family's to reside with A with Joey. On of Fact and the decision of the I. Did the District custody Court and visitation Joey that Alan's We discourage law. of fact 1279, district of fact of court law, When reviewing and conclusions of law, we examine whether and pertinent to provide whether are hold that With the exception the District does not Court's a basis of child findings for 721 P.2d findings constitute of fact sufficiently a decision, evidence. and Hurlev, 721 calculations, we and conclusions of support of fact party. findings are of findings 295-96, they by substantial P.2d at 1285. verbatim 287, the practice to and conclusions the adequacy of the supported Court may adopt verbatim comprehensive they child by the prevailing 222 Mont. a district District from adopting (1986), and conclusions the of fact of law submitted of Hurley per se. for findings courts in modifying children? was error proposed Although 1285. error it and conclusions In re Marriage discretion of the minor declares adopt verbatim abuse its law meet the above test. Joey argues should be stricken before the court that necessary the because court's it is and the issues following custody and visitation based upon facts should the development be resolved of any facts that order were not by the court that might as occur later. Recently reviewing we a district have stated court's the order child: 6 following modifying principles physical custody when of a Joint custody is presumed to be in the best interest of the child, § 40-4-224(l), MCA, and is awarded to assure frequent and continual contact of the minor child with both parents. Physical custody should be arranged as equally as practical between the parents to comply with the express purpose of an award of joint custody, with the child's best interest as the primary consideration. Section 40-4-224(2), MCA. Modification of custody arrangement is best interest of the physical custodian of MCA, of § 40-4-224(2), physical custody within a joint proper when the change is in the child. A request to change the the child requires an application which states in part: "[J]oint custody" means an order awarding custody of the minor child to both parents and providing that the physical custody and residency of the child shall be allotted between the parents in such a way assure frequent as to the child and continuing contact with both parents. The allotment of time between the parents must be as equal as possible: however, to of its the each case shall own practicalities, child as the primary (a) be determined according with the best interest consideration . . . . The District Court must consider the factors set forth in § 40-4-212, MCA, when determining whether the modification of physical custody is in the child's best interest. The court is under no obligation to consider the more stringent factors set forth in § 40-4-219, MCA, when faced with an action for modification of physical custody rather than an action for termination of joint custody. In P.2d re 864, In action Joshua's Marriage of Ulland (1992), 251 Mont. 160, 166-67, 823 868-69. its she order, believes placement demonstrating the District is was a substantial Court necessary ordered to on a temporary decrease 7 reduce basis in Joey his to take whatever Joshua's contingent weight by weight. upon the his summer vacation then in 1992. If Joey cannot Alan may petition In his concluded wearing the court medical that report, Jessica a back brace female child reaches the District Court another doctor opinion. If would full to wear this is custody findings, obtain with a second shall that she can get obtain cannot Jessica opinion In its once a needs to wear a brace, Joey of from diminishes and Jessica If benefit to make an appointment kyphosis that orthopedist, little one month to demonstrate No second medical Jessica's be transferred was submitted into to evidence for appeal. The court against that in the weight, an at age 15 or 16. brace. physical compliance, Alan. the very the parents opinion Teal, effectiveness growth ordered Peter its to lose a change of custody. derive because then Joey would be given Jessica for Dr. specializing the get Joshua was confronted what would be in their the children The court in both court court with balancing best interests, as well relationship have a continuing found that with considered the children had familial and Plentywood. Billings the children's The record at length recognized that the children's the Billings to Plentywood. children could attending to the children's children's medical conditions remain children The court in Billings not so long 8 father. ties that and welfare. wish its order as Joey problems. are treatable, their demonstrates tailored medical as ensuring and educational health did wishes to the The move from so that is Both and the order the properly of the offers an incentive to Joey to the ensure children receive proper ordered a more agreement. Again treatment. With regard detailed the meaningful the wishes children occasions, in reality, court ordered visit nonschool of friction the between encourage parent. the is the counseling have her father. have Court both We hold in modifying that with to Jessica will the District custody to The children's parent This reduce parents ordered an effort the two so that him. sessions. court to actions the noncustodial a relationship in her the counseling that she encourages of restrict a right from visiting by the and sessions more time with discretion attend Alan% that pattern to visit the District between at trial the an attempt to communication abuse its to demonstrates undermined should parties children In addition, attend the refuse order and foster the children parties and Joey children The record father, if Alan specifically see his she stated their children, the them. the activities and ordered to discouraged that of court custody has actively Although to have, with the existing right relationship see the children. to the Alan's on several portion visitation, than balanced against Jessica, the the arrangement court Joey, to the actively the other Alan and Jessica facilitate more want to spend Court did not and visitation. II. Did incorporate the the District provisions Court of err his 9 in Chapter allowing respondent 12 bankruptcy plan to as well as child other business that its Alan $25,000 gross child in gross income a support had $102,000 when expenses. The net it calculated responsible necessary while finding that for child support. in for her tax child liability. support approximately required to reside with deducted from Joey argues that deductions child support should not support Alan overall the from the during payments from that amounted net did income not was ordered year to of deduct evidence Alan while to pay Joey was The court Alan the found ordered Joey when the children are summer which could be obligation. District Court Alan's applied improperly farm/ranch obligation. have to farm there entire 12 various had court though $600 a month. of child Alan's Joey The court for in support The even Chapter tax child income, $38,465 The court for Alan's equipment, Alan's deductions. gross from office $38,203 business months court additional found had approximately approximately under the to pay three Alan's made Court deducted deducted available Joey's a month Joey cows, deducted after regarding business also being an District Court $10,500, from $300 court available offered as income approximately taxes well while replacement The court income net $25,000 income for payments as the The District income. of bankruptcy, Alan's in gross waterer. result Alan's calculation, expenditures and a stock the expenses" support? In as "legitimate Specifically, Alan's 10 Chapter operation used several to reduce she maintains that 12 bankruptcy plan payments to determine because Joey it is includes and social relating it 1992), of to child the district if under standard its 5 implements of a policy the children of exclusions is that (1991). gross income are the only court's a presumption exists the court's In re Marriage state, awarded findings in favor findings of Sacry of only (Mont. Rep. 452. for determining the primary Rule ones allowed focus Child Support on the needs of income only a minimum 5, Guidelines The following Support essence, excluding district from each obligor's to be allowed. of net the overturn of keeping Child determination of Guidelines by requiring In home mortgage. of obligation the guidelines. 49 St. the support none of the deductions discretion. 833 P.2d 1035, child exception taxes, and we will has abused Rule the review support court of his with security to Alan are proper Our amount of his payments that arguing federal, the deductions for Determining subtracted under the Guidelines from for the income: [Flederal and state income taxes: FICA: union dues, retirement contributions, uniforms, etc., which are required as a condition of employment and are not reimbursed by the employer; lesitimate business exoenses: and health insurance if the benefits are maintained for the obligor parent's dependents, including the child(ren) of the action at hand. [Emphasis added.] Rule 5, Guidelines. The Social for the adoption MCA. & Rehabilitative of child They have defined Services support "net Department guidelines. income" 11 Section as meaning: is responsible 40-4-209(5), income and income [G]ross income, including imputed attributed to assets, less any deductions for state or taxes, social security, and other similar federal deductions required by law or court order. Unreimbursed expenses incurred as a condition of employment such as union dues, retirement contributions, uniforms and other should also be occupational or business exvenses deducted. [Emphasis added.] 46.30.1516, ARM. We have Guidelines, parent stated the court and not Marriage extent that should rely considerable on the 242 Mont. farm/ranch length farm/ranch shows that Alan's tax under is complex. accounting were In returns. 912. Alan testified he receives re The at from his The evidence position. both the income of the 69, 73, 788 P.2d 909, the income that and his expenses income parent's business regarding operation determining examine the disposable solely of Gray (1990), of Alan's when business and personal in nature. The court considered, tax returns pay child support bankruptcy during year, did and the record not provide he had taken for the an accurate the last years his two tax another year he received ASCS disaster payable in a normal year. he testified he had trouble Due to the lack of those picture getting payments, was not in filed. of calf as well one and in which would not be during those as a general in his In crops, the ASCS deficiency the farm economy, he became delinquent 12 to Alan payments Moreover, Alan's ability were worth that of his years. returns as income two years' crop demonstrates, debt tax years, payments. decline obligations in and thus the returns since not of the total his accurately Furthermore, requirements. percent did personnel reflect Alan testified farm estate residence his that taxes paid was on the debt service he had added in 75 as a personal expense He added farm property. in between one-third to three-quarters telephone expenses because they were considered and travel in nature. The Bankruptcy bankruptcy trustee for The deduction of the bankruptcy the husband to deduct farm allowed before mortgage arriving payments the bankruptcy the mortgage at and personal is especially However, year as an accountant operations. appears would to capitalized followed equipment the guidelines for relating a full to child for is the husband's business in full. determining reconsideration support. 13 on the paid by applied his on the farming mortgage, There should The District child per to be subtracted expense. that to net equity. income of $45,000 Interest purchased The These were ordered not be allowed guidelines. a legitimate farm error. support. which husband's to the payments for that in to be used to subsidize should and not deducted and remand factors be be the is mortgage increases appears under his the principal when the Such payments as deductions however, true payments of the bills each year actually This Alan to pay $39,465 what was available were part court. ordered value, each year. court Court of his vehicle's have Court support. and recalculation also been has not We reverse of all III. Did the District pay Joey's Court educational Joey asserts to pay Joey's order him evidence We decline to pay Dissolution loans. the in to order respondent Decree provided loans the educational to review reconsideration the educational regarding We affirm in failing to loans? that agreed err and that The record loans this that Court demonstrates was presented the matter reverse should that no at trial. on appeal. part Alan and and recalculation of all and factors support. 0 &A We concur : .I" 14 remand 0 Justice for relating a full to child
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