11/15/2016
DA 16-0079 Case Number: DA 16-0079
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 297N
IN RE THE MARRIAGE OF:
HERBERT CHRISTIAN PASCHEN,
Petitioner, Appellee and Cross-Appellant,
And
ANNE KEMSLEY PASCHEN,
Respondent, Appellant and Cross-Appellee.
APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DR 12-825A Honorable Amy Eddy, Presiding Judge
COUNSEL OF RECORD:
For Appellant and Cross-Appellee:
Brian Muldoon, Law Office of Brian Muldoon, P.C., Whitefish, Montana
For Appellee and Cross-Appellant:
Matthew D. Neill, Johnson-Gilchrist Law Firm, Whitefish, Montana
Submitted on Briefs: October 5, 2016
Decided: November 15, 2016
Filed:
__________________________________________ Clerk Justice James Jeremiah Shea delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Anne Kemsley Paschen (Anne) appeals, and Herbert Christian Paschen (Herb)
cross-appeals, the amended findings of fact, conclusions of law, and order of the Eleventh
Judicial District Court, Flathead County, dissolving the parties’ marriage and awarding
spousal maintenance and child support to Anne. We address whether the District Court
abused its discretion in calculating maintenance and child support and ordering the
corresponding payments to commence on April 1, 2015. We affirm the District Court’s
order in part, reverse in part, and remand for further proceedings consistent with this
Opinion.
¶3 Anne and Herb were married for eighteen years and have three children. On
March 31, 2015, the District Court issued its findings of fact, conclusions of law, and
order dissolving their marriage (2015 Order). Herb appealed the 2015 Order. In Paschen
v. Paschen, 2015 MT 350, 382 Mont. 34, 363 P.3d 444 (Paschen I), we addressed
whether the District Court erred in the amount of income it imputed to Herb for the
purpose of setting monthly child support and spousal maintenance payments and in
apportioning the marital estate. We “affirm[ed] the District Court’s imputation of Herb’s
earning capacity at $100,000 but reverse[d] and remand[ed] the court’s inclusion of
2 [Herb’s mother] Bunny’s monetary gifts into his annual resources for purposes of child
support and spousal maintenance.” Paschen I, ¶ 43. On January 6, 2016, the District
Court issued its amended findings of fact, conclusions of law, and order (2016 Order).
Anne and Herb each appeal parts of the 2016 Order.
¶4 We review a district court’s division of marital property to determine “whether the
court’s findings of fact are clearly erroneous and whether its conclusions of law are
correct.” In re Marriage of Richards, 2014 MT 213, ¶ 13, 376 Mont. 188, 330 P.3d
1193. “A finding is clearly erroneous if it is not supported by substantial evidence, if the
district court misapprehended the effect of the evidence, or if our review of the record
convinces us that the district court made a mistake.” Patton v. Patton, 2015 MT 7, ¶ 18,
378 Mont. 22, 340 P.3d 1242. If there are no clearly erroneous findings or incorrect
conclusions of law, we determine whether the district court abused its discretion. Patton,
¶ 19. A district court abuses its discretion if it acts arbitrarily without employing
conscientious judgment or exceeds the bounds of reason resulting in a substantial
injustice. Patton, ¶ 19.
¶5 Anne contends that the District Court abused its discretion by failing to consider
Herb’s financial resources of $431,000 a year in calculating child support and
maintenance. In Paschen I, we affirmed “the District Court’s imputation of $100,000
annual income to Herb” for the purpose of setting child support and maintenance
payments. Paschen I, ¶ 26. We noted then that Anne “urged the District Court to impute
to Herb an income of $410,000/annually,” but “[t]he District Court was presented with
concrete evidence of Herb’s ability to earn approximately $100,000 annually.”
3 Paschen I, ¶¶ 24-25. The issue of whether the District Court abused its discretion in
calculating Herb’s income for the purposes of child support was decided in Paschen I.
We will not revisit that decision. See State v. Shelton, 2008 MT 321, ¶ 13, 346 Mont.
114, 193 P.3d 943 (“Generally, res judicata dictates that an appellant may not raise issues
that we have decided in a prior appeal.”) (citations omitted).
¶6 Similarly, we reject Herb’s argument that the District Court erred or abused its
discretion in apportioning the marital estate. Herb does not contest the District Court’s
allocation of the vast majority of marital debt to him, but contends that the District Court
abused its discretion by also requiring him to pay spousal maintenance. He argues that
the District Court unfairly ignored the “real-life repercussions” of the debt he faces, but
cites no facts to support his speculation that potential bankruptcy would affect his future
earning capacity and ability to pay child support and maintenance. Again, we addressed
Herb’s income in Paschen I and held: “The District Court was presented with concrete
evidence of Herb’s ability to earn approximately $100,000 annually.” Paschen I, ¶ 25.
Herb’s attempt to relitigate his earning potential is barred by res judicata. See Shelton,
¶ 13.
¶7 Herb next contends that the District Court erred in calculating spousal
maintenance in its 2016 Order because, regarding Herb’s monthly expenses, the Court
found: “The only evidence before the Court at trial was Herb’s $400 a month rent; that is
only $4,800 annually.” Herb contends that his “Exhibit 11,” admitted at trial, “reveal[s]
4 monthly expenses of $1,860/month.”1 He also points to his testimony at trial that his
expenses are “approximately $2,000 a month.” Anne does not contest that Exhibit 11
was admitted at trial or that Herb testified that his expenses were greater than $400.
Regardless of whether the District Court ultimately finds this evidence persuasive in
calculating spousal support on remand, the Court’s finding that the “only evidence before
the Court at trial was Herb’s $400 a month rent,” (emphasis added) is clearly erroneous.
¶8 Herb also contends—and Anne concedes—that the District Court erroneously
applied the Child Support Guidelines, Admin. R. M. 37.62.110(1)(a) (2012), by failing to
account for Herb’s spousal maintenance obligation in calculating child support. Pursuant
to § 40-4-204(3)(a), MCA, district courts must “determine the child support obligation by
applying . . . the uniform child support guidelines adopted by the department of public
health and human services.” Admin. R. M. 37.62.110(1)(a) provides that “allowable
deductions” from a parent’s income for calculating child support include “the amount of
alimony or spousal maintenance which a parent is required to pay under a court or
administrative order.” The District Court erred by failing to address this rule.
¶9 Finally, Anne contends—and Herb agrees—that the District Court abused its
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11/15/2016
DA 16-0079 Case Number: DA 16-0079
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 297N
IN RE THE MARRIAGE OF:
HERBERT CHRISTIAN PASCHEN,
Petitioner, Appellee and Cross-Appellant,
And
ANNE KEMSLEY PASCHEN,
Respondent, Appellant and Cross-Appellee.
APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DR 12-825A Honorable Amy Eddy, Presiding Judge
COUNSEL OF RECORD:
For Appellant and Cross-Appellee:
Brian Muldoon, Law Office of Brian Muldoon, P.C., Whitefish, Montana
For Appellee and Cross-Appellant:
Matthew D. Neill, Johnson-Gilchrist Law Firm, Whitefish, Montana
Submitted on Briefs: October 5, 2016
Decided: November 15, 2016
Filed:
__________________________________________ Clerk Justice James Jeremiah Shea delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Anne Kemsley Paschen (Anne) appeals, and Herbert Christian Paschen (Herb)
cross-appeals, the amended findings of fact, conclusions of law, and order of the Eleventh
Judicial District Court, Flathead County, dissolving the parties’ marriage and awarding
spousal maintenance and child support to Anne. We address whether the District Court
abused its discretion in calculating maintenance and child support and ordering the
corresponding payments to commence on April 1, 2015. We affirm the District Court’s
order in part, reverse in part, and remand for further proceedings consistent with this
Opinion.
¶3 Anne and Herb were married for eighteen years and have three children. On
March 31, 2015, the District Court issued its findings of fact, conclusions of law, and
order dissolving their marriage (2015 Order). Herb appealed the 2015 Order. In Paschen
v. Paschen, 2015 MT 350, 382 Mont. 34, 363 P.3d 444 (Paschen I), we addressed
whether the District Court erred in the amount of income it imputed to Herb for the
purpose of setting monthly child support and spousal maintenance payments and in
apportioning the marital estate. We “affirm[ed] the District Court’s imputation of Herb’s
earning capacity at $100,000 but reverse[d] and remand[ed] the court’s inclusion of
2 [Herb’s mother] Bunny’s monetary gifts into his annual resources for purposes of child
support and spousal maintenance.” Paschen I, ¶ 43. On January 6, 2016, the District
Court issued its amended findings of fact, conclusions of law, and order (2016 Order).
Anne and Herb each appeal parts of the 2016 Order.
¶4 We review a district court’s division of marital property to determine “whether the
court’s findings of fact are clearly erroneous and whether its conclusions of law are
correct.” In re Marriage of Richards, 2014 MT 213, ¶ 13, 376 Mont. 188, 330 P.3d
1193. “A finding is clearly erroneous if it is not supported by substantial evidence, if the
district court misapprehended the effect of the evidence, or if our review of the record
convinces us that the district court made a mistake.” Patton v. Patton, 2015 MT 7, ¶ 18,
378 Mont. 22, 340 P.3d 1242. If there are no clearly erroneous findings or incorrect
conclusions of law, we determine whether the district court abused its discretion. Patton,
¶ 19. A district court abuses its discretion if it acts arbitrarily without employing
conscientious judgment or exceeds the bounds of reason resulting in a substantial
injustice. Patton, ¶ 19.
¶5 Anne contends that the District Court abused its discretion by failing to consider
Herb’s financial resources of $431,000 a year in calculating child support and
maintenance. In Paschen I, we affirmed “the District Court’s imputation of $100,000
annual income to Herb” for the purpose of setting child support and maintenance
payments. Paschen I, ¶ 26. We noted then that Anne “urged the District Court to impute
to Herb an income of $410,000/annually,” but “[t]he District Court was presented with
concrete evidence of Herb’s ability to earn approximately $100,000 annually.”
3 Paschen I, ¶¶ 24-25. The issue of whether the District Court abused its discretion in
calculating Herb’s income for the purposes of child support was decided in Paschen I.
We will not revisit that decision. See State v. Shelton, 2008 MT 321, ¶ 13, 346 Mont.
114, 193 P.3d 943 (“Generally, res judicata dictates that an appellant may not raise issues
that we have decided in a prior appeal.”) (citations omitted).
¶6 Similarly, we reject Herb’s argument that the District Court erred or abused its
discretion in apportioning the marital estate. Herb does not contest the District Court’s
allocation of the vast majority of marital debt to him, but contends that the District Court
abused its discretion by also requiring him to pay spousal maintenance. He argues that
the District Court unfairly ignored the “real-life repercussions” of the debt he faces, but
cites no facts to support his speculation that potential bankruptcy would affect his future
earning capacity and ability to pay child support and maintenance. Again, we addressed
Herb’s income in Paschen I and held: “The District Court was presented with concrete
evidence of Herb’s ability to earn approximately $100,000 annually.” Paschen I, ¶ 25.
Herb’s attempt to relitigate his earning potential is barred by res judicata. See Shelton,
¶ 13.
¶7 Herb next contends that the District Court erred in calculating spousal
maintenance in its 2016 Order because, regarding Herb’s monthly expenses, the Court
found: “The only evidence before the Court at trial was Herb’s $400 a month rent; that is
only $4,800 annually.” Herb contends that his “Exhibit 11,” admitted at trial, “reveal[s]
4 monthly expenses of $1,860/month.”1 He also points to his testimony at trial that his
expenses are “approximately $2,000 a month.” Anne does not contest that Exhibit 11
was admitted at trial or that Herb testified that his expenses were greater than $400.
Regardless of whether the District Court ultimately finds this evidence persuasive in
calculating spousal support on remand, the Court’s finding that the “only evidence before
the Court at trial was Herb’s $400 a month rent,” (emphasis added) is clearly erroneous.
¶8 Herb also contends—and Anne concedes—that the District Court erroneously
applied the Child Support Guidelines, Admin. R. M. 37.62.110(1)(a) (2012), by failing to
account for Herb’s spousal maintenance obligation in calculating child support. Pursuant
to § 40-4-204(3)(a), MCA, district courts must “determine the child support obligation by
applying . . . the uniform child support guidelines adopted by the department of public
health and human services.” Admin. R. M. 37.62.110(1)(a) provides that “allowable
deductions” from a parent’s income for calculating child support include “the amount of
alimony or spousal maintenance which a parent is required to pay under a court or
administrative order.” The District Court erred by failing to address this rule.
¶9 Finally, Anne contends—and Herb agrees—that the District Court abused its
discretion in its 2016 Order by ordering Herb’s child support and maintenance
obligations to commence on April 1, 2015. Herb contends that his obligations should be
retroactive to August 2014, citing the 2015 Order’s “Decree and Order,” which provides:
“Petitioner is responsible for monthly child support . . . effective August, 2014”; and
1 Although the transcript from the bench trial held on October 15 and 16, 2013, indicates that Exhibit 11 was admitted without objection, the exhibit is not part of the record on appeal. On remand, the District Court must consider all of the record evidence in making its findings.
5 “Petitioner is responsible for maintenance . . . effective August, 2014.” Herb contends
that August 2014 is the correct start date under the law of the case doctrine because
neither party appealed that date in Paschen I.
Under the doctrine of law of the case, a legal decision made at one stage of litigation which is not appealed when the opportunity to do so exists, becomes the law of the case for the future course of that litigation and the party that does not appeal is deemed to have waived the right to attack that decision at future points in the same litigation.
McCormick v. Brevig, 2007 MT 195, ¶ 38, 338 Mont. 370, 169 P.3d 352. Anne cites the
2015 Order’s finding of fact that “Herb should pay Anne maintenance . . . effective
October, 2013.” Although this finding is clearly inconsistent with the Court’s order that
maintenance should commence “effective August, 2014,” Anne did not argue in
Paschen I that the District Court’s findings were inconsistent with its order or that Herb’s
obligations should be retroactive to October 2013. The District Court’s 2016 Order’s
start date of April 2015 is inconsistent with its 2015 Order’s start date of August 2014,
which was not appealed. Herb’s maintenance and child support obligations are
retroactive to August 2014.
¶10 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. In the opinion
of the Court, the case presents a question controlled by settled law or by the clear
application of applicable standards of review. The District Court erred by finding that the
only evidence before it regarding Herb’s expenses was $400 a month in rent and failing
to address the evidence of Herb’s other expenses presented at trial. The District Court
erred when it did not deduct Herb’s spousal maintenance obligation from his income in
6 its calculation of child support and ordered Herb’s child support and spousal maintenance
obligations to commence on April 1, 2015. The District Court did not err in apportioning
the marital estate or imputing Herb’s income. We remand for the District Court to
consider all of the evidence of Herb’s expenses, deduct Herb’s spousal maintenance
obligation from his income in its calculation of child support, calculate his obligations
accordingly, and order Herb’s child support and maintenance obligations to commence
on August 1, 2014.
/S/ JAMES JEREMIAH SHEA
We Concur:
/S/ MIKE McGRATH /S/ LAURIE McKINNON /S/ BETH BAKER /S/ MICHAEL E WHEAT