MARRIAGE OF PENNING
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NO. 88-502 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 IN RE THE MARRIAGE OF KATHLEEN LOIS PENNING, Petitioner and Respondent, and DALE EVERETT PENNING, Respondent and Appellant. APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable Russell Fillner, Judge presiding. COUNSEL OF RECORD: For Appellant: Andrew M. Small, ~illings, Montana For Respondent: ,.Jack E. Sands; Sands Law Firm, Billings, Montana Submitted on Briefs: -L- .- --I Decided: , J i ' ' Clerk June 1, 1989 June 30, 1989 Mr. Justice R. Court. C. McDonough delivered the Opinion of the This appeal from the Thirteenth Judicial District, Yellowstone County, concerns issues arising from the divorce of Kathleen and Dale Penning. Dale appeals the District Court's decisions on custody, the proper amount of child support and maintenance, and the propriety of an award of attorney fees to Kathleen. We affirm. The parties married on March 27, 1981. The District Court dissolved the marriage on April 21, 1988. Four children, aged from one year old to six years old, were born of the marriage. Kathleen also has an eight-year-old child from a prior marriage. Dale contracts work at the Exxon refinery in Billings, and receives approximately $47,000 annually. Dale employs a person he describes as a close friend for unskilled or semi-skilled labor at $12.50 an hour. The parties dispute the net income retained by Dale from the $47,000 in earnings. Kathleen has performed only unskilled labor in the past, and currently has no special skills which would enable her to take a job that would adequately cover her child care expenses. The primary caretaker of the parties children has been Kathleen. The lower court awarded Kathleen $260.00 per month, per child in child support, and $400.00 per month in maintenance. The lower court also named. Kathleen residential custodian of the parties' children. the Dale presents the following issues: (1) Whether the District Court erred in naming Kathleen residential custodian? Whether the District Court erred in awarding Kathleen $260.00 per month per child for child support? (2) District Court erred in awarding (4) Whether t h e D i s t r i c t a t t o r n e y f e e s t o Kathleen? Court erred in awarding the issue (3) Whether t h e maintenance t o Kathleen? I. Dale makes several contentions on of the p r o p e r r e s i d e n t i a l p a r e n t f o r implementing t h e j o i n t custody provisions District of Court the decree. First, Dale contends f a i l e d t o consider t h e presence of that the physical a b u s e o f t h e c h i l d r e n i n f l i c t e d by K a t h l e e n a s by r e q u i r e d by ยง 40-4-212 ( 6 ) , MCA. Testimony i n d i c a t e d t h a t K a t h l e e n h a s , on o c c a s i o n , s l a p p e d o r spanked t h e c h i l d r e n . Testimony a l s o i n d i c a t e d t h a t some o f t h e c h i l d r e n h a v e s u f f e r e d from d i a p e r rash, and t h a t o n e c h i l d , w h i l e l e f t u n a t t e n d e d by K a t h l e e n , f e l l from t h e p a r t i e s ' incident of van t o t h e pavement. The o n l y o t h e r a l l e g e d a b u s e i n v o l v e s p u n i s h m e n t meted o u t by K a t h l e e n f o r two o f t h e c h i l d r e n ' s b e h a v i o r i n p l a y i n g w i t h dog f e c e s . on the Kathleen t e s t i f i e d t h a t t h e p a r t i e s ' floor of their discovered the m e s s and, become c o v e r e d w i t h i t . basement. two Her dog messed young according t o Kathleen, boys managed t o K a t h l e e n t e s t i f i e d t h a t s h e smeared some o f t h e m a t t e r on t h e i r n o s e s and made them s t a n d i n t h e corner f o r f i v e minutes. We hold discretion by that the Court District refusing c o n s t i t u t e d c h i l d abuse. to find Thus, acted that within these incidents no e r r o r may b e p r e d i c a t e d h e r e b a s e d on t h e r e q u i r e d f i n d i n g s u n d e r 5 4 0 - 4 - 2 1 2 ( 6 ) , Dale further contends that its the lower court MCA. committed reversible e r r o r i n finding: [ K a t h l e e n ' s ] home and i n t e r a c t i o n w i t h t h e c h i l d r e n h a s been o b s e r v e d by a number o f w i t n e s s e s . A l l of whom t e s t i f i e d t h a t s h e i s a aood m o t h e r . Dale points out that not - of the witnesses testified that all Kathleen was a good mother. We disagree that the District Court erred in interpreting the testimony of the witnesses. Witnesses testifying for Dale criticized Kathleen's parenting skills. However, they also admitted that Kathleen had good abilities in some areas of parenting. Moreover, even if all of Dale's witnesses testified that Kathleen was not a good mother, other witnesses held the opposite opinion. Thus, the record would only reflect conflicting evidence on this issue, and it is the function of the District Court to resolve such conflicts. We will not reverse the decision of the District Court on what constitutes a custody arrangement in the best interest of the children based on the proper weight assigned to conflicting evidence. In re Marriage of Rolfe (19851, 216 Mont. 39, 45, 699 P.2d 79, 82. Nor will we reverse for incomplete or partially erroneous findings unless appellant demonstrates the District Court failed to base its decision on substantial evidence. In re Marriage of Saylor (Mont. 1988), 756 P.2d 1149, 1151, 45 St.Rep. 1062, 1065. Dale also contends that the lower court erred in relying on a report from a Court Services Investigator in its findings because the report was never admitted into evidence. Kathleen responds that Dale stipulated to a Court Services investigation which was to "make appropriate recommendations to the Court." We agree that Dale's stipulation to the report properly places it in the record as evidence. Dale asserts that his citations to the record show that substantial evidence does not support the District Court's decision to make Kathleen the residential parent. We disagree. By and large, witness testimony supports the conclusion that the best interests of the children will be served by making Kathleen the residential custodian. Several witnesses testified favorably concerning Kathleen's parenting s k i l l s . One s t a t e d : Q. Have you had o c c a s i o n t o be i n h e r home? A. Yes. On s e v e r a l o c c a s i o n s I have v i s i t e d h e r home. Q. And have you o b s e r v e d h e r and h e r c h i l d r e n i n h e r home? A. Yes, q u i t e o f t e n . Could you d e s c r i b e t h e home environment Q. there? Well, y e s . I t always s t r i k e s me t h a t it i s a very d i f f i c u l t s i t u a t i o n t h a t she i s i n . She had t h e f i v e c h i l d r e n , and it always s t r u c k me how remarkably s h e c o n t r o l l e d t h a t . A. Another w i t n e s s e s t e s t i f i e d : Q Could you d e s c r i b e between Kathy and h e r c h i l d r e n ? the A. They seem t o be v e r y c l o s e . She was j u s t a r e a l good mother. Some w i t n e s s e s h a v i n g knowledge o f indicated that children. Dale's Dale d i d n o t p r o v i d e Therefore, relationship I d o n ' t know. parenting adequate c a r e skills for the t h e d e c i s i o n of t h e D i s t r i c t C o u r t on t h e r e s i d e n t i a l p a r e n t i s s u p p o r t e d by s u b s t a n t i a l e v i d e n c e and we a f f i r m on t h i s i s s u e . 11. Dale asserts determining the calculated Dale's e a c h month. that amount o f support the District c h i l d support. obligation as Court erred The lower $260.00 per in court child In determining Dale's gross income, the District Court refused to deduct the $ 1 2 . 5 0 per hour, 2 0 hours per week, employment expenses Dale incurs for employing his close friend. The lower court allowed such expenses at $ 5 . 0 0 per hour. This is the main objection to the lower court's calculations in arriving at Dale's net income for determining child support. We hold that the lower wage figure properly reflects evidence in the record that the unskilled or semi-skilled labor performed by Dale's close friend is worth only $ 5 . 0 0 per hour. Thus, the lower court acted correctly in discounting Dale's assertions to the contrary. Dale also objects to the addition of workers' compensation benefits as income for determining his ability to make support payments. He claims that he no longer receives the benefits. Kathleen asserts that the issue is not properly reviewable on this appeal. We agree that the existence of a reduction in Dale's income following the proceedings in the lower court cannot be considered as an issue reviewable on this appeal. Dale also objects generally to the lower court's award of support in light of the Guide for Determination of Child Support Obligations, adopted and approved for use by district Dale claims that courts by this Court on January 13, 1 9 8 7 . the District Court misapplied the Guidelines by failing to subtract the proper amount of his business expenses from his gross income to arrive at his net income. Kathleen responds that under the proper application of the Guidelines, Dale's support obligations would exceed the amount arrived at by the lower court. The Guidelines mandate that only "legitimate" business expenses be subtracted to arrive at net income. Guide for As Determination of Child Support Obligations, Part 5 . previously discussed, there exists some controversy over the proper amount of legitimate Moreover, the Guidelines: expenses incurred by Dale. are not binding upon such judges and officials [using the guidelines]. We so order to prevent appeals based upon claimed failure to observe or follow the guidelines. In the Matter of Adoption of a Uniform District Court Rule on Child Support Guidelines, Order of the Supreme Court of Montana, No. 86-223, Filed January 13, 1987. Obviously, there exists no reversible error based on the improper use of the Guidelines here. Thus, we affirm on this issue. 111. Dale contends under this issue that the lower court erred in setting the amount of maintenance to be received by Kathleen at $400.00 per month. According to Dale, the lower court erroneously failed to consider Dale's ability to "meet his needs while meeting those of the spouse seeking maintenance," as required by S 40-4-203(2)(f), MCA. The thrust of Dale's argument on this point is that the lower court erred in increasing the amount of available income for maintenance by finding that Dale was sharing expenses with the close friend he employs for $12.50 an hour. Dale contends that evidence in the record demonstrated that he and the friend do not share expenses. We disagree. At the trial, one of Dale's witnesses testified that he had stayed with Dale the weekend prior to the trial, and that Dale's close friend was present in the household during the weekend. Another witness testified that while on visitation with Dale, the children have gone from Dale's close friend's house to his house to play. This testimony is sufficient to sustain the District Court's conclusion that Dale and his close friend/employee share expenses. Dale also objects to the lower court's decision on the ability of Kathleen to provide for the children's financial needs. The record does not contain evidence sufficient to support this assertion. On the contrary, evidence indicates Kathleen is patently unable to hold down a job which would bring in income sufficient to reduce Dale's obligation. Thus, we reject Dale's contentions on this issue. IV. Dale argues that the District Court abused its discretion by awarding attorney fees to Kathleen. Again, the focus of the argument concerns Dale's finances, this time in regard to his ability to pay the fees. We have already held that the District Court acted within its discretion in determining Dale's income. Thus, we affirm. <I - ciief justice -
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