In Re the Marriage of Murphy

885 P.2d 440, 268 Mont. 1, 51 State Rptr. 1198, 1994 Mont. LEXIS 262
CourtMontana Supreme Court
DecidedNovember 22, 1994
Docket94-073
StatusPublished
Cited by4 cases

This text of 885 P.2d 440 (In Re the Marriage of Murphy) 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 Murphy, 885 P.2d 440, 268 Mont. 1, 51 State Rptr. 1198, 1994 Mont. LEXIS 262 (Mo. 1994).

Opinions

JUSTICE HUNT

delivered the Opinion of the Court.

Appellant Darrell Murphy appeals the findings of fact, conclusions of law, and order of the Ninth Judicial District Court, Toole County, modifying a prior custody and property settlement agreement and decree of dissolution. The District Court modified the original agreement and decree, designating Roberta Murphy as primary custodian of the parties’ three minor children, and ordered Darrell to pay $618 per month for child support. We affirm.

The following issue is raised on appeal:

Did the District Court, in determining the amount of child support owed by Darrell, err by not allowing a $6000 deduction for subsistence expenses incurred in his employment and reimbursed by his employer?

Darrell and Roberta entered into a common law marriage on February 14,1977. Three children were bom of the marriage. Roberta petitioned for dissolution on September 7, 1989.

On July 20, 1990, Darrell and Roberta executed a custody and property settlement agreement providing for joint custody of the children, granting Darrell primary custody, and allowing Roberta liberal visitation. They also agreed that neither party would pay child support to the other. Concluding that the agreement was reasonable and appropriate, the District Court adopted its provisions and issued the decree of dissolution on July 30,1990.

In June 1992, Darrell’s girlfriend called Roberta and asked her to come and get the children. Roberta called Darrell, and he told her that she now had custody of the children. At that time, Roberta lived in a one bedroom apartment and did not possess the children’s clothing, personal belongings, or furniture. Therefore, she rented a multi-bedroom dwelling and purchased beds, dressers, and clothing for the children.

According to Roberta, after the transfer of custody, Darrell sporadically paid child support until July 1993 when he began to make regular payments to the Child Support Enforcement Division (CSED). On September 9,1993, Roberta filed a motion requesting the District Court to determine the correct amount of child support owed by Darrell.

The District Court heard the parties’ arguments regarding child support on October 21,1993. Darrell testified that he had been paying $450 a month in child support through CSED and that the $450 figure had been determined through an administrative decision of CSED. [3]*3Roberta claimed that Darrell owed $618 per month based on her Montana Child Support Determination Worksheet (worksheet) calculations. Darrell claimed that he owed $462 per month based on his worksheet calculations. The difference in the parties’ calculations was attributable to their differing treatment of $6000 of “subsistence pay” which Darrell received annually from his employer.

Darrell testified that he worked 26 to 28 days per month. He stated that, while on the road, he incurred expenses for food, gloves, tools, and telephone calls. Darrell testified that his employer reimbursed him $21 per day to cover these subsistence expenses, but that the $21 did not cover the total amount that he actually spent. He testified that, according to the Internal Revenue Service (IRS), he was allowed to deduct for tax purposes $30 per day for travel expenses within the United States and $34 per day for travel expenses within Canada.

In computing his gross income, Darrell stated that he included $500 per month for subsistence pay, and in determining net income, he calculated a “road subsistence” expense deduction using the $21 per day reimbursement, and not the full $30 or $34 allowed by the IRS. Roberta maintained in District Court, and maintains on appeal, that no deduction is allowed for Darrell’s reimbursed travel expenses.

The District Court requested briefs and copies of the parties’ worksheets. The District Court concluded that the $6000 which Darrell received in reimbursements was includable in gross income but not deductible from net income and ordered Darrell to pay $618 per month in child support pursuant to Roberta’s worksheet calculations. Additionally, the District Court ordered that Darrell be allowed to take the tax exemptions for the children provided that his child support payments are made timely and are kept current.

Did the District Court, in determining the amount of child support owed by Darrell, err by not allowing a $6000 deduction for subsistence expenses incurred in his employment and reimbursed by his employer?

Darrell argues that, in calculating his monthly child support obligation, the $6000 in subsistence pay should not only be included as gross income, but also should be deducted as a required employment expense. We disagree that the reimbursed expenses are deductible.

The District Court, in its findings of fact, conclusions of law, and order, made the following determinations:

7. The Administrative Rules of Montana (ARM) provide instruction for courts in their use of the Child Support Guidelines. ARM 46.30.1508 states that in determining the resources of each parent available for child support, gross income includes expense reim[4]*4bursements such as reimbursed meals. ARM 46.30.151[6] states that net income means gross income less any deductions for unreimbursed expenses.
8. According to ARM, the $6,000.00 that Respondent is reimbursed for his road subsistence shall be included in gross income but not deducted from net income.

We review the findings of fact in child support modification cases to determine whether the district court clearly abused its discretion. In re Marriage of Durbin (1991), 251 Mont. 51, 55, 823 P.2d 243, 245. Similarly, we review the conclusions of law to determine whether the district court correctly interpreted the law. Durbin, 823 P.2d at 245.

In 1987, this Court specifically adopted the Uniform District Court Rule on Child Support Guidelines (guidelines) for use by the district courts of Montana. District Court Child Support Guidelines (1987), 227 Mont. 1. We have held that § 40-5-209, MCA, and the guidelines properly vest discretion in the district courts to apply the guidelines, and that under the broad standards of § 40-4-204, MCA, the district court must scrutinize all deductions and exemptions claimed by either party. Chiovaro v. Tilton-Chiovaro (1991), 247 Mont. 185, 189, 805 P.2d 575, 577.

Section 40-4-208(2)(b)(i) and (ii), MCA, provides that modification of a decree relating to child support may only be made “upon a showing of changed circumstances so substantial and continuing to make the terms unconscionable” or “upon written consent of the parties.” Section 40-4-208(2)(b)(iii), MCA, provides in part that “[t]he support obligation must be modified, as appropriate, in accordance with the guidelines promulgated under 40-5-209” which directs the Department of Social and Rehabilitation Services (SRS) to adopt uniform child support guidelines. Neither party contests the District Court’s conclusion that the threshold requirements of § 40-4-208, MCA, have been met in this case. The instant dispute arises over the District Court’s application of the guidelines and interpretation of the applicable Administrative Rules.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Albrecht v. Albrecht
2002 MT 227 (Montana Supreme Court, 2002)
Custody of Wilson
1998 MT 92N (Montana Supreme Court, 1998)
In Re the Marriage of Murphy
885 P.2d 440 (Montana Supreme Court, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
885 P.2d 440, 268 Mont. 1, 51 State Rptr. 1198, 1994 Mont. LEXIS 262, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-murphy-mont-1994.