In Re the Marriage of Graham

2008 MT 435, 199 P.3d 211, 347 Mont. 483, 2008 Mont. LEXIS 682
CourtMontana Supreme Court
DecidedDecember 23, 2008
DocketDA 07-0406
StatusPublished
Cited by20 cases

This text of 2008 MT 435 (In Re the Marriage of Graham) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re the Marriage of Graham, 2008 MT 435, 199 P.3d 211, 347 Mont. 483, 2008 Mont. LEXIS 682 (Mo. 2008).

Opinions

CHIEF JUSTICE GRAY

delivered the Opinion of the Court.

¶1 Charles K. Graham (Chuck) appeals from the findings of fact, conclusions of law and decree entered by the Sixteenth Judicial District Court, Fallon County, in its judgment dissolving his marriage to Erin E. Graham (Erin). We affirm.

¶2 The issues are:

¶3 1. Did the District Court err in calculating Chuck’s income for child support purposes?

¶4 2. Did the District Court err in awarding Erin primary residential custody of the parties’ son?

¶5 3. Did the District Court err in awarding Erin $500 a month as maintenance?

BACKGROUND

¶6 Chuck and Erin were married in 2002 in Oklahoma. Their marriage produced one son, who was 3Vz years old at the time of trial. Erin was not employed outside the home during the marriage. For purposes of pursuing Chuck’s employment in ranching, horse training, welding and heavy equipment operation, the family moved to Colorado and then to Baker, Montana.

¶7 Chuck and Erin separated in March of2006, when Erin and their son went to Oklahoma to visit extended family and Chuck, who remained in Montana, filed for dissolution of the marriage. After a one-day trial, the District Court divided the modest marital estate, adopted a parenting plan awarding Erin primary residential custody of the parties’ son, and ordered Chuck to pay Erin $960 per month in child support, and $500 per month in spousal support for 36 months. Chuck appeals.

STANDARDS OF REVIEW

¶8 We review an award of child support for abuse of discretion. Albrecht v. Albrecht, 2002 MT 227, ¶ 7, 311 Mont. 412, ¶ 7, 56 P.3d 339, ¶ 7 (citation omitted). We review findings of fact in a child custody determination to determine whether they are clearly erroneous. Because the trial court is in a superior position to weigh the evidence, we will not overturn a child custody determination absent a clear [485]*485abuse of discretion. Czapranski v. Czapranski, 2003 MT 14, ¶ 10, 314 Mont. 55, ¶ 10, 63 P.3d 499, ¶ 10 (citations omitted). In reviewing a district court’s division of marital property and maintenance award, we first determine whether its underlying findings are clearly erroneous. Absent clearly erroneous findings, we will reverse a district court’s property division and maintenance award only if we identify an abuse of discretion. In re Marriage of Payer, 2005 MT 89, ¶ 9, 326 Mont. 459, ¶ 9, 110 P.3d 460, ¶ 9 (citations omitted).

ISSUE 1

¶9 Did the District Court err in calculating Chuck’s income for child support purposes?

¶10 The District Court found that Chuck’s income was $23,222 and $28,000 in 2004 and 2005, respectively, and he had earnings of $84,103.85 in 2006. The court further found that, from January 1 through February 11, 2007, Chuck-who was then working as a freelance welder-had gross wages of $15,123.32, plus subsistence of $75 per day and $14 per hour to cover truck expenses. In its conclusions of law, and based on testimony that the job Chuck was working would last at least another 16 to 18 months, the court projected Chuck’s annual income available for child support purposes as $123,917. In so doing, the District Court relied on Admin. R. M. 37.62.108(3)(b), which is part of the Child Support Guidelines promulgated by the Montana Department of Public Health and Human Services pursuant to § 40-5-209, MCA.

¶11 Admin. R. M. 37.62.108(3) provides that, to the extent possible, income for child support shall be annualized using one of two methods. Pursuant to Admin. R. M. 37.62.108(3)(a), “seasonal employment or fluctuating income may be averaged over a period sufficient to accurately reflect the parent’s earning ability.” Alternatively, Admin. R. M. 37.62.108(3)(b) provides that, in annualizing income for child support, “current income or expenses may be projected when a recent increase or decrease in income is expected to continue for the foreseeable future.”

¶12 In Albrecht, ¶ 11 (citations omitted), upon which Chuck relies, we observed that a district court must follow the Guidelines in determining child support obligations unless clear and convincing evidence is produced demonstrating that doing so would be unjust to the child or to any of the parties, or inappropriate in that case. We also noted that the instructions for completing the Guidelines’ child support worksheets provide that determining the income of a self-employed [486]*486parent “usually” requires an average of at least three years of net income from that parent’s income tax returns. Albrecht, ¶ 11. In that case, relying in part on Admin. R. M. 37.62.108(3)(a), we concluded the district court had abused its discretion in basing its determination of a self-employed parent’s income on only one year’s net earnings. Albrecht, ¶¶ 12, 14.

¶13 In the present case, the facts may have supported application of the first method for annualizing Chuck’s income, set forth in Admin. R. M. 37.62.108(3)(a) and applied in Albrecht, because Chuck was self-employed. However, given Chuck’s recent increase in income-which was expected to continue for the foreseeable future-the District Court chose instead to apply the second method for annualizing income, set forth in subsection (3)(b) of the rule. Application of that method does not require the court to average three years’ income. Moreover, Chuck does not argue that the District Court abused its discretion in using the method for annualizing income set forth in Admin. R. M. 37.62.108(3)(b).

¶14 Chuck also suggests the District Court did not allow him all his reasonable expenses as deductions from his gross income. This suggestion has no merit. The District Court concluded that, even though many of Chuck’s claimed expenses were undocumented, the only one it would not allow was a claim for payments for a truck Chuck was purchasing for his welding business. The District Court found, pursuant to Admin. R. M. 37.62.106(2)(b), that only straight-line depreciation is allowable as an expense for vehicles. Chuck offers nothing to refute this conclusion.

¶15 We hold Chuck has failed to establish error in the District Court’s calculation of his income for child support purposes.

ISSUE 2

¶16 Did the District Court err in awarding Erin primary residential custody of the parties’ son?

¶17 Each party proposed a parenting plan under which he or she would have custody of their son except for the last two weeks of every second month, during which time the other parent would have custody. Erin’s proposed plan also provided for a division of holiday time between the parents and for 8 weeks in the summer with each parent. Under Erin’s proposed plan, when the child reaches school age, Chuck would be entitled to one weekend per month with their son instead of the last two weeks of every second month, as well as extended school breaks.

[487]*487¶18 The District Court adopted Erin’s proposed parenting plan, and Chuck appeals. He claims he should be the primary custodial parent based on evidence that Erin suffered from depression and was not a good housekeeper during their marriage. Chuck advances only § 40-4-212, MCA, as authority supporting his argument.

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Cite This Page — Counsel Stack

Bluebook (online)
2008 MT 435, 199 P.3d 211, 347 Mont. 483, 2008 Mont. LEXIS 682, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-graham-mont-2008.