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In re Marriage of Smith

Supreme Court of Montana

February 25, 2014

IN RE THE MARRIAGE OF: ANGELLA KALYN SMITH, Petitioner and Appellee,
v.
ANTHONY BALFOUR SMITH, Respondent and Appellant. and

Submitted on Briefs: January 22, 2014

APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DR 09-449C Honorable John C. Brown, Presiding Judge COUNSEL OF RECORD:

For Appellant: Suzanne C. Marshall, Marshall Law Firm, P.C., Bozeman, Montana For Appellee:

Angella KaLyn Smith, self-represented, College Place, Washington

OPINION

BETH BAKER JUSTICE

¶1 Pursuant to Section I, Paragraph 3(d), 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 Anthony Smith appeals the findings of fact, conclusions of law and order entered by the Eighteenth Judicial District Court, Gallatin County, dissolving his marriage with Angella Smith. We affirm.

¶3 The parties were married in 1998 and had three children during the course of the marriage. Angella filed a petition for dissolution in 2009. In May 2010, the parties reached an agreement on a property settlement, spousal maintenance, and a final parenting plan. Pursuant to their agreement, because the parties were unable to resolve their differences on a child support calculation, Angella initiated a case with the Child Support Enforcement Division of the Montana Department of Public Health and Human Services (CSED) to determine Anthony's child support obligation. CSED calculated the total support obligation for all three children to be $1, 830 per month.

¶4 Following the settlement, Anthony failed to meet his spousal maintenance and child support obligations. Facing a dire financial situation, Angella filed a notice of intent to move to Washington so that she could live with family and "stabilize financially." Anthony objected to the notice, but Angella moved to Washington before the court could consider the matter. Eventually, the parties' disagreements necessitated a trial. The District Court filed its findings of fact, conclusions of law, and decree of dissolution on January 2, 2013, dissolving the marriage, distributing the marital property and establishing a final parenting plan and child support order.

¶5 Anthony first argues that the District Court erred in declining his request to modify CSED's temporary child support order in the final decree. "A presumption exists in favor of the trial court's determination of child support and we will not overturn its findings unless the court abused its discretion." In re Marriage of Stevens, 2011 MT 106, ¶ 6, 360 Mont. 344, 253 P.3d 877 (internal citation omitted).

6 A district court must determine the parties' income when setting child support. In re Stevens, ¶ 12. The Montana Child Support Guidelines define income as inclusive of "actual income, imputed income, or any combination thereof which fairly reflects a parent's resources available for child support." Admin. R. M. 37.62.106(1). Courts should be "realistic and take the actual situation of the parties into account when calculating child support obligations." In re Stevens, ¶ 12 (internal citation omitted).

¶7 Because CSED's order was two years old at the time of trial, Anthony contends that the court clearly erred in failing to make findings or to calculate child support payments to reflect the parties' current situation. He alleges that the court failed to take into account his testimony regarding his income.

¶8 The court's findings reflect Anthony's testimony about his income and financial resources, but give it little weight. The court found his testimony to be "suspect, particularly given his large, lump-sum child support payments to Angella, as well as his hiring of counsel on the eve of trial." Additionally, the court considered Angella's testimony that "Anthony continues to operate a marijuana grow operation and that, as a result, he has significant, undisclosed financial resources." Thus, the court relied upon the calculation done by CSED. Relying on In re Marriage of Brandon, 271 Mont. 149, 153, 894 P.2d 951, 953 (1995), Anthony contends that the District Court must make specific findings in writing to explain its calculation of child support. In Brandon, the court did not apply the Uniform Child Support Guidelines but determined that application of the guidelines was inappropriate. In re Brandon, 271 Mont, at 153, 894 P.2d at 953. The court failed, however, to support its findings with clear and convincing evidence, which a court must do if it declines to follow the guidelines. In re Brandon, 271 Mont, at 153-54, 894 P.2d at 954. Brandon has no application here and Anthony cites no authority to support his argument that the court cannot incorporate CSED's determination in the final decree of dissolution. The parties here expressly agreed that CSED would determine the support obligation if they were unable to reach agreement. Additionally, the court's decree allows CSED to recalculate the amount based on the decree and final parenting plan. After a review of the record, we conclude that the District Court properly evaluated the testimony and did not abuse its discretion in choosing to rely upon CSED's order and denying Anthony's modification request.

¶9 Anthony next appeals the District Court's order requiring him to pay a portion of Angella's attorney's fees. We review an award of attorney's fees for an abuse of discretion. In re Marriage of Car as, 2012 MT 25, ¶ 18, 364 Mont. 32, 270 P.3d 48. Section 40-4-110(1), MCA, authorizes a district court to order reasonable attorney's fees incurred in maintaining and defending a dissolution proceeding after considering the financial resources of both parties. The award must be "reasonable, necessary and based on competent evidence." In re Marriage of Harkin, 2000 MT 105, ΒΆ ...


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