MARRIAGE OF OLSEN
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NO. 92-116 IN THE SUPREMECOURT OF THE STATE OF MONTANA 1993 IN RE THE MARRIAGE OF: MARILYN ANNE OLSEN, Petitioner and Respondent, and RAYMONDCHARLES OLSEN, Respondent APPEAL FROM: and Appellant. District Court of the Eleventh Judicial District, In and for the County of Flathead, The Honorable Leif B. Erickson, Judge presiding. COUNSEL OF RECORD: For Appellant: Patrick D. Sherlock, Montana Sherlock & Nardi, Kalispell, For Respondent: Katherine R. Curtis, Falls, Montana Kaplan Submitted Filed: & Curtis, on Briefs: Decided: Columbia August 6, 1992 March 5, 1993 Chief J. A. Turnage Justice Raymond conclusions County. the entered in order by the District Flathead appeals and law, marriage issues Court for the District five for issues of the Court. findings this the Eleventh We affirm Raymond raises those the Opinion (Raymond) Olsen of delivered of fact, dissolution Judicial of District, Court. our consideration. We rephrase as: 1. Did the District unreasonable child support? court require Raymond to Pay 2. Was the District Court correct in denying Raymond's motion for retroactive modification of a temporary child support, maintenance, and health insurance order? 3. Did the District medical insurance and part of his children? 4. Was unreasonable? 5. assets the Was the equitable? Court err in requiring of the uncovered future District Court's District Raymond and Marilyn Court's Olsen 1971, in Bigfork, Montana. a daughter, July born Raymond and Marilyn arrested guilty years for sexual to one count in prison with in the Montana State 19, apportionment (Marilyn) 1973; assault of sexual six years February of their assault 2 born of the July 1990 after daughter. parties' on June 27, 10, 1975. Raymond was Raymond plead and was sentenced suspended. on October maintenance were born to the parties: and a son, in of were married Two children separated Prison award Raymond to pay medical expenses to sixteen Raymond was incarcerated 25, 1990. Through Columbia Raymond's Falls homemaker, their a Aluminum the joint no employment for per ordered child. amount of deficiencies Raymond's in share approximately this as were In marital District after its of valued Marilyn actually Court deducted family. Court for the of per to maintenance pay allowed maintenance market account. Marilyn In trial, make net up from addition, Marilyn Her bench to in payments separation, a $401.50 obtained earnings from month. conclusions The at and a hearing, ordered per fact, marriage. District waitress. after of separation. support $1000 1991, findings the child their in Raymond's the and money of property for order support approximately estate, However, the year December dissolution The month. a bartender/cocktail job entered also the of one employment The per was of Following pay value $156,704. maintenance. a $43,882.33 personal moved to during a market time insurance Raymond living of totaling and Raymond $200 of the as accumulated items for efforts had the Marilyn support Court Falls at medical driver Marilyn's had estate separation, truck standard Columbia various provided child District any a marital their temporary the had also After in account they assets and They market Additionally, month home a a decent encumbrances. money liquid enjoyed Their with as Company, parties marriage. $63,500 employment District of Court equally $156,704, received from the $124,341 Raymond's 3 District law and decree divided between of the half of Court the the total parties. marital the of estate. estate, and added to Marilyn's Raymond's share, maintenance, medical and liabilities, incurred uncovered insurance, for District Court ordered because Raymond would Raymond appeals the obligation the a total future earning decision of in no the child expenses of income $43,289. of lieu cash while District support, medical addition deductions be for The payments incarcerated. Court. I Did the support? District Court In child appeal, we again this due to incarceration We first Mont. should addressed this -, 1993). P.2d Moonev was based a similar, address what support order addition, to incarceration and dissolution of In Mooney, to arising the exactly family 92-089, In the have order 5, which case, we issue. Here, we upon to obligations March instant of act income (1993), decided parallel, criminal of obligation. support an inability support loss Brennan a dissolution a voluntary unreasonable support v. should effect pay effect of a child from what other an original marriage. earn should arising In income have due upon from a marriage. this a change make No. income. not to a child Mooney incarceration for maintenance as in (Cause although we determine constitute issue what upon modification effect child have pre-incarceration decide Raymond address -, involved upon require terms Court in determined circumstances of that incarceration so substantial a child support 4 order does not and continuing based upon pre- incarceration held the District that Court incarceration of a resultant clearly loss of the review erroneous. Mont. be applied is In re the Marriage 139, 142, 831 P.2d 1353, 1355. the District Court's interpretation conclusions of the of Revenue (1990), Raymond contends of child the support immediate marriage, income. over child because last He argues this time support misinterprets income over the district it of that Steer, period to obligation a two-year are (1992), v. in its "annualize" as to Department 603. determination his the Court 253 the tribunal's Inc. income for dissolution of and earned done so, his and, would have been lower. income therefore, However, income" and merely support is issued, no his Raymond averages his period. concerning used in determining court the of review he was incarcerated the term "annualized fact, 803 P.2d 601, preceding had the District because findings the Our standard Court erred failed which of of Eschenbacher frame would have been $18,828, When an order criteria the District two-year the whether 474-75, We op. at 8. of law is "whether 470, 6. payments findings law is correct." 245 Mont. at § 40-4-208(2)(b)(i), Slip Court's op. of law in ruling support Mooney, District to of of child of income. Slip as a matter requirements a modification reviewing standard was incorrect met the MCA, and justified In Mooney, income unconscionable. child the child to determine support the support 5 obligation obligation part of the requires child support guidelines by applying . . . the uniform adopted by the department of social and rehabilitation services pursuant to 40-5-209 . . . . Section 40-4-204(3)(a), the Child Support MCA. Guidelines In referring to annualized income, 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 to 46.30.1513(1)(e), accurately Section ARM (1990). reflect a 46.30.1513(1)(e), immediately "annualized" support. income be annualized oroducincr abilities. ARM (1990). Raymond supports years parent's Income should his argument preceding by relying Under these that his it income dissolution upon the rules his District for should Court the two have Rules been on Child 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 Raymond argues Rules that, support obligation $18,828. This First, Rules examined had the would argument the very on Child on Child District have fails reason Support Support that Court been based for it (1987), three 227 Mont. done this, upon a net 1, his years of reasons. of annualized Court income is: Without such examination a temporary period of present unemployment or underemployment may indicate an unwarranted low amount of income available for support. 6 child income is recommended by the District two 5. be District Court (emphasis added). Second, the time Rules under of on Child § 40-4-204(3)(a), this dissolution required to determine applying the Services, Court by parent's or last full income for July lack support the District Court support obligation is alia, Guidelines and not the District may impute to earn (emphasis found that unemployed net income." $42,951 added). income for 1989, was $40,659. Raymond's gross was $42,951. high Raymond was ordered support school. through Thereafter, for "as imputing Court District was the result imputed May 1992, Raymond was support through eighteen. figure the Section Raymond's gross October, son turns or income "based upon the of $452 per month in child was based, of employment at Rehabilitation voluntarily Court completed when his and 5 Court inter Support Social et.seq., of employment, to pay a total In using Child by, 1, effect District obligation of $702 per month in child daughter 1993, child Court year was in the is capacity 1990, through to pay a total ordered parent ARM (1990) The District 227 Mont. Support. the District 46.30.1513(1)(b), of ARM (1990), a ability when his Uniform the Department where underemployed, his in the on Child Third, of marriage, support § 46.30.1501, Rules (1987), MCA, which the child standards promulgated Support income reasoned of a voluntary that criminal income to Raymond and calculated though he 7 had continued upon which Raymond's act. The his in child his pre- incarceration employment." criminal conduct from his incarceration was voluntary, circumstances. failed to Raymond impute unemployment upon final year we held that from their same for one who becomes voluntarily state liberally the we held should obligations under the of Court involuntary before he was unemployed. it of was the Title 40, Slip op. a. One such provide support their children. We now extend under to impute based upon his for the underlying the reasoning facts of this pre-incarceration as a matter a policy of 4 are purposes this to of purpose op. be the requires Section 40-4- in Mooney to the case at case, income to Raymond for Slip Chapter the at be offered Mooney, public promote We hold incorrect not when we do not do the to MCA. decision nor year Mooney, to 101(4), support "provisions construed chapter." bar. child Furthermore, that parents arising District of employment a criminal reprieve 6-7. one the his We do not agree. In Moonev, at while and unforeseeable based as his that unemployment Raymond argues, income as well incarcerated. the resulting was involuntary Therefore, contends the purposes District Court's of child support income was not clearly erroneous of law. II Was the District Court correct in denying Raymond's motion for retroactive modification of a temporary child support, maintenance, and health insurance order? Raymond contends in denying his motion the District Court for retroactive a erred modification as a matter of law of the temporary order entered on October 208(2) (b) (i), MCA, retroactive his unemployment "circumstances [of correct modification health of the insurance Court incarceration substantial order temporary did not unconscionable. correct Section District the motion 40-4Court for retroactive support, child concluded that constitute and continuing 208(2)(b)(i), in maintenance, and Raymond's unemployment due in circumstances so order. The District to Raymond's because as to make the terms and hold agree, § 40-4- a change unconscionable." denying under constitutes and continuing We do not in that was warranted incarceration order] MCA. He argues modification so substantial 208(2)(b)(i), was due to temporary the 18, 1990. a change as to make the terms Therefore, a modification MCA, was not appropriate. as a matter of law, of the under We hold this and in line with temporary §40-4- conclusion our holding is in Mooney. III Did the District Court err in requiring insurance and part of the uncovered future children? Raymond next that he pay the medical share of children. required its contends final provide uncovered As to future the medical medical Court his 9 erred coverage ordered children. in requiring and a disproportionate expenses insurance, medical for Court premiums medical the District insurance District insurance Raymond to provide order, the Raymond to pay medical medical expenses of his the for for the parties' temporary his order children. Raymond to continue In to Raymond should not contends health to bear be required because he is no is working the longer Marilyn insurance and full funds not brunt In employed. has is mandatory of medical addition, with and which insurance he to he argues purchase that medical insurance. Under § 40-4-204(4)(b), MCA: (4) Each district court judgment, decree, or order establishing a final child support obligation under this title . . . must include a provision addressing health insurance coverage in the following cases: . . . In the event that health insurance required in a (b) order becomes child support judqement, decree, or unavailable to the party who is to provide it, through loss or change of employment or otherwise, that party ~, must in the absence of an agreement to the contrary, obtain comparable insurance or request that the court [Emphasis added.] modify the requirement. At the time employed temporary order insurance coverage and had employer. his the When he became medical insurance unavailable to him, comparable have assets with in marital his replace was still children through his Raymond lost After the MCA, required Raymond to Raymond and unemployed, incarcerated 5 40-4-204(4)(b), which the entered, for benefits. insurance. employment was was the estate insurance that incarcerated insurance. became he obtain and However, as a means to $2,775 would obtain had no he did comparable insurance. The cover the District cost Court of medical found that insurance for 10 the parties' be required children to until they emancipated. were insurance, the Raymond's share that District of deducting means to Raymond to to also pay provide of medical expenses are fifty/fifty problems the future. such which The expenses, Court the to have amount held of not clearly was the for health percent, for 75 the percent err in in requiring uncovered argues future the future should split had significant children attention found to and the be any the The expected expected Court resources not child Court of insurance. 11 expected derived a whole. too As determining we to from available in support, District err net as find medical of District cost District available in cost The Raymond's did treatment $1700. comparing for provide not erred parties of estate. Court available erroneous by 75 net District income responsible covered parties' the insurance, by to did He the also marital the figure the that by of reasonable seventy-five/twenty-five. Court or from reasoned only expected necessitate covered percent resources would $1350, share 75 found District not deducted Raymond's we Court Court children. than Court Court of and rather District medical parties' speculative deducted insurance. share the purchase obligation District District a disproportionate expenses The the be the his medical contends medical expenses the hold to was fulfilled not District obligation We Raymond Raymond The could $2,775 estate. insurance that Raymond ordered marital insurance. requiring him Court the the insure medical Because hold that expenses the it was Raymond not IV Was the District Court's An award of maintenance has equitably divided MCA, and has properly the award of maintenance may be proper marital applied estate the Eschenbacher, 831 P.2d at 1355. Court the $156,704 to divided each party. does criteria not Rather, he contends have Marilyn more because she support herself. Under maintenance has § 40-4-203, only than it sufficient needs; and 40-4-203(1)(a) finds § 40-4-202, § 40-4-203, or this division Court month in assets MCA. to should not which to contention. Court provide through may grant maintenance: for his appropriate In addition, The maintenance order shall be in such amounts and (2) for such periods of time as the court deems just, without regard to marital misconduct, and after considering all relevant facts including: (a) the financial resources of the party seeking maintenance, including marital property apportioned to to meet his needs independently, him, and his ability including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian; 12 was maintenance with the spouse seeking himself MCA. the District this District District property and (b), to Court in the amount of $78,352 $100 per employment is unable to support (b) employment . . . . Section the MCA, the if of contend We do not agree with order (a) lacks reasonable sufficient pursuant estate inequitable. awarded the District In the case at bar, marital Raymond after unreasonable? a (b) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment; (c) the marriage: standard the Cd) (e) the of duration of living the established during the marriage; the age and the physical and emotional spouse seeking maintenance; and condition of the ability of the spouse from whom maintenance (f) sought to meet his needs while meeting those of spouse seeking maintenance. Section 40-4-203(2)(a) The District maintenance Court through eighteen. $500 through month maintenance July in dollar market reasonable producing rather (1992), had than produce income due to realize any considered sufficient $200 ordered August Marilyn per month child 1995. in turns Raymond was awarded sufficient to The to property for 310, to MCA, the house 313, and the appreciation pay total 829 P.2d silver income because 13 parties' be must money for be income- Marriage 3, Although dollar her "sufficient re the 5. the of Van it collection they they would have items cannot will not is will These production. property value, house, provide property In in the and the property income-consuming. 252 Mont. that to because 5 40-4-203(1)(a), arguable sold pay youngest Court through However, the the a 1984 automobile, needs. under Atta that she property" District to was $16,500. collection, account, when maintenance obligation MCA. Raymond 1993, the Raymond argues silver ordered Thereafter, per (f), is the provide to be be income sufficient for Marilyn's Furthermore, P.2d at 5-6. earn interest, rate than the Marilyn interest parties' District did awarded to Marilyn marriage, can education provide parties no finding and the we hold the property to provide monthly able support the standard a reasonably expenses the herself for her that of Marilyn took Court found employment Marilyn $1000 per found under !j 40-4-203(1)(b), the to be was barely much less employment' or a job as and the two children Court her skills achieve the marriage. relation the Marilyn District the of living. approximately during with omitted). The Marilyn enjoyed during parties standard diploma, from During she had no job and earned District employment needs. decent because through of living "'Appropriate be determined reasonable benefits. Furthermore, finding herself has appropriate her waitress $1600. (citation in will at a greater of the record, property than a high school with net, for separated, greater reasonable the needs of err account the funds review clearly Marilyn enjoyed a bartender/cocktail to a thorough argues Marilyn the month to meet the 829 needs. she After have to deplete not Van Atta, needs. the money market was not sufficient Raymond also which will After Court present although accrues children. reasonable reasonable to the standard marriage."' We hold the District could not properly 14 of living MCA, 'must achieved Van Atta, 829 P.2d Court did not err support herself at by 6 in its in relation to the standard requirements of living of 5 40-4-203(l), Finally, maintenance education after found education it would take and training in be maintain education. in the turns also were Marilyn under MCA, we also err in awarding found Marilyn The did in awarding seek further The District to acquire sufficient find appropriate Marilyn that would while ordered $500 per Because we have held could she might Raymond was of erred eighteen. employment payments § 40-4-203(l), marriage. Court Marilyn that full-time The increased 1993. order amount the two years Court Therefore, maintenance child Marilyn The District to so that youngest employment. able the District payments the during MCA, have been satisfied. Raymond contends increased Court achieved pursuing to pay continue in August for two not have appropriate hold increased the District this increased month beginning to not years. employment Court did not maintenance. V Was the District equitable? In his final Court's assignment Court support, maintenance, medical expenses, those should not err in its do not address in of error, District the property erred apportionment amounts settlement. determination this issue determining of the parties' Raymond claims his insurance, not be deducted As we have held the District 15 In passing, if of future from of the amount of these in detail. that obligation and assets his the child medical share Court obligations, we do note of did we that it was within amounts that met. 178, 628 the from this See Raymond's was the e.g.: 651 P.2d P.2d province judgment In of means re the of re the the the the with District Court marital which the Marriage of Crabtree Marriage of Karr (1981), Court is affirmed/ District We concur: 16 to estate deduct these after obligations finding would (1982), 267. The 29; half only In of 192 be 200 Mont. Mont. 388, Justice Karla M. Gray, I concur I in the specially opinion concur standing my specially in concurring. of that the majority opinion disagreement with on on issues 3, 4 and 5. 1 and 2, notwith- issues the majority's approach and rationale. As indicated Mooney, it regarding by my joining is to former child spouse before my view us fall this and case that the the Mooney. to meet District Court would Court On the erred in incarceration circumstances so substantial the order temporary of I does law in with on the record not case in child this basis that before us, determining the respondent Because appropriate and continuing 17 of Nor distinguish did unconscionable. rules wise. assets erroneous. to nor dissent owed by an incarcerated facts obligations, due white necessary District unemployment and neither sufficient clearly the black Trieweiler's and maintenance within and affirm not that support are maintenance Mooney are has of Justice that constitute support case its from findings I cannot say respondent's a change as to make the terms in of March 5, 1993 CERTIFICATE OF SERVICE I hereby certify that the following order was sent by United States mail, prepaid, to the following named: PATRICK D. SHERLOCK Sherlock & Nardi 30 Fifth Street East Kalispell, MT 59901 Katherine KAPLAN P.O. Box Columbia R. Curtis & CURTIS 329 Falls, MT 59912 ED SMITH CLERK OF THE SUPREME COURT STATE%F MONTANA
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