Marriage of Everett
Opinion
LONA E\'kRETT, Petitloner arid Respondent.
and
ARTHUR EL'ERETT, CLERK CI" BUPRE##,e%~ @ g i i -
STATE 0 7 w p ~ + b i e # Respondent and Appellant
APPEAI.. FROM: District Court ofthe Eleventh Judicial District, In and for the Coullt); oFFlathead, Honorable Katherine R. Curtis, Judge Presiding
COUNSbl. OF RECORD:
For Appellant:
Peter F. Carroll, Attorney at Lam,, Kal~spell, Mol~tana
For Respondcnt:
Robert B. Alllson. Attorney at L.am1, Kallspell. Montana
Filed:
C:kicCi~isticeKarla M. Grilp delivered lhc Opinion of the C:ourt. hi Pursiiant to &ition I, Paragraph 3jcj: "voni-ana Supreme Coui-i 19% it~ntcrnal Operating Ru!cs. the fol!owirrg decisiori shall not bc cited as precedent. It shall be filed as a pubhe document rth the Clerk of the Supreme Court and shall be reported b j case t~tlc,
Supreme Court cause number and result to the State Reporter Publ~sh~ng Company and to
West Croup in the quarterly table of noncitable cases issued by this Court 72 Arthur Everett (Arthur) appeals from the Findings of Fact, Conclusions of i a\%,and
Order Uodtfyrng Support entered by the Ele~enth Jud~ctal
Dtstnet Court, Flathead County,
on the 11iot101~ modifq child support filed by L,ona Ebcrett (LLona),hls former spouse. We to
affirm on the three issues Arthur raises on appeal
73 1. Did the District Court abuse its discretion by including Arthur's overtime pay in determining his child support obligation'?
g3 Arthur has remarried since his marriage to L,ona was dissolved and has a minor child
within that marriage, He is c~nployed an agent by the Federal Rurcau of Investigation and as
his earnings include automatic overtime pay in an amount fixed at 25 percent of base wage. 'The District Court included that autoniatic overtime pay in Arthur's gross earnings for purposcs of calculating his child support obligation to L,ona for their two sons who reside with her. Arthur asserts error. 75 ,Arthur correctly contends that under Rule 37.62.106(5), ARM, part of the illontana Uniform Child Support Guidelines pursuant to which child support must be determined,
overtime inccme for a person with a subsequei~t family is presumed to be for thc use of the
subsequent family. From that premise, he asserts that thc Distrjct Court was required to cxcllidc his fixed and ailtomatic ovcrtirne pay* based on his base bvage, from his gross earnings in calculating child support in the present case. We disagree. 76 The rule at issue docs not define "overtime," In interpreting statures and administrative rules in such a situation, Lte give words their plain meaning. See Richter v. Rose, 1098 MT 165,1!7 21-22,289 Mont. 370,111\21-22,062 P.2d 583,77 21-22. Black's L,aw Dictionary I 130 (,7thed. 1'909) defines overtime as "[tlhe hours worked by an employec in excess of a standard day or week" and "[tlhe extra wages paid for excess hours worked." Applying these definitions to the record before us regarding Arthur's o\-ertime,it is clear that, while termed "overtime," Arthur's increase in salary in the amount of 25 percent ofhis base wage i s not over-time as that term is commonly used and understood. First, Arthur is a salaried employx, not one pard by the hour. As such, he works the hours requlred rather than a fixed number of hours per day or week. Consequently, he does not uork hours ~n excess of a standard day or u-eek and is not paid the extra amount for such excess hours worked. On this record, the District Court's implicit determination that no actual overtime- as contemplated by Rule 37.62.106(5). ARM is at issue here 1s not erroneous
1 '7 Moreover, the only~ reasonable rationale behind thc administrative rule's presumption
that earnings from traditional ovcrtime are for a subsecluent family is that the overtime has been undertaken because necessary or appropriate for the nceds of the subsequent family. This rationale also does not "fit" with the kind of ovei-time at issue here, Arthur's fivcd and
automatic o erttme apparently has been part of h ~ salary, elen though as an add-on. for the \ s entire period of his ernployrr~enr an FBI agent, including the time during which he and as
Lana were rnanied, Thus, this "overtitne" clearly is in the nature of permanent and ongoing salary which meets the "income froni salaries" portion of rhc definition of income available for child support set forth in Rule 37.62.106(2)(a), ARM. '8 For these reasons, we conclude the District Court did not abuse its discretion in irtcluding Arthur's "overtime" pay in determining his child support obligation
1:9 2. Did the District Court err in failing to take Arthur's visitation-related expenses into account in calculating his child suppol* obligation?
f 10 hearing, Arthur 11vedin 1.0s Angeles, Californ~a, At the time of the modificat~on and
Lona and their sons lived in Flathead County, Montana. The Montana Unifonn Child Support Guidelines provide for an adjustment to aparent's income for child support purposes when trabel by the parent or the child to attain the goals of a parenttng plan exceeds 2.000
miles in a calendar year. See Rule 37.62.130(11, ARM. Arthur contends he is cnt~tled to
such a travel adjustment.
1 The travel adjustment is calculated using either the parent's ann~tal milcage driven to
exercise parenting or the annual cost oftransportation by means otlicr than automobile. Rule 37.62.130(3), ARM. Arthur's brief to this Court refers to his amended child support guidelines worksheet submitted to the District Court as support for a travel adjustnlcnt to his Income.
712 Arthur's atncnded \\orksheet documents h ~ travel expenses to parent hts sons for the
s
year 1009. A r t h ~ did not attend the hearing, and offered no evidence to indicare his 1999 ~r travel expcnses rcprcscntcd typical annual expenses. I'hc ilistrict Court found that Arthur
periods in 1999 and s h o ~ ~bc creditcd S3iN tolvard arreamges in child had three visiti~t~on ld
suppon for "extraordinary visitation expcnscs" for that year.
4 13 The District Court also found that as of January of 2000. the parties had agrce&~-in ihc
court-ordered mediation in which they resolved parenting issues-that Lona \v-ouldtransport the children to Spokane, Washingtosl, to fly to California to visit with Arthur, and would
return to Spokane to p ~ c k them up at the end of the k~ssts.The court found, based on that
agreement and the expense ~neurredby Loila to meet those obligations, that a travel
adjustment to Arthur's c h ~ l d support obligat~on .r isitation cxpenscs beyond the year I909 for
was onwananted. 114 Gi\.en Arthur's failure to produce docun~entationto support a travel adjustment beyond the year 1909, along with the evidence of the parties' resolution of transportation issues in mediation, we conclude the District Court did not err in failing to take Arthur's visitation-related expenses into account in calculating his child support obhgation.
715 3, Did the District Court ahrtse its discretion in making the nlodified child support retroactive to April of 1999?
716 Arthur states he was not served with notice of the request to modifk~child support until
May 5, 1999. Citing the 5 40-4-208(1), MCA, requirement that a court ma>/makc modified support effective only aRer actual notice of thc motion to modify, he asserts that retroactivity of his modified child support obligation to April of 1909 is improper. He also appears to argue that the facts of this case do not support a rctroaetive modification of child support.
"11 7 1-ona's rni?tioe for modification iricludcd her counsel's affidavit stating e copy lllereof nas rntliled to Adhur in California on March 25, 1999. The motion lvas filcd with thc Clerk of the District Court on blerch 25, 1999. 'The record suggests that Arthur rchsed to ackno\vledge scwice ofthe mailcdrnotion and establishes that personal service was obtaincd by a process server on May 8, 1999, when Arthur was in Montana.
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