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In re Parenting of A.B.S.

Supreme Court of Montana

December 5, 2017

IN RE THE PARENTING OF A.B.S., a Minor Child. STEFNIE R. SUNDVAHL, Petitioner and Appellant, and THOMAS L. BRINKERHOFF, Respondent and Appellee.

          Submitted on Briefs: November 8, 2017

         APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DR-11-609(D) Honorable Stewart E. Stadler, Presiding Judge

          For Appellant: Katherine P. Maxwell, Maxwell Law, PLLC; Kalispell, Montana

          For Appellee: Paul D. Sullivan, Measure, Sampsel, Sullivan & O'Brien, PC; Kalispell, Montana


          Jim Rice Justice

         ¶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 non-citable cases published in the Pacific Reporter and Montana Reports.

         ¶2 Stefnie Sundvahl (Stefnie) appeals from the District Court's order establishing a parenting plan, specifically, the court's incorporated order determining interim child support, entered within a contentious and complicated proceeding in the Eleventh Judicial District Court, Flathead County. Thomas Brinkerhoff (Thomas) argues that Stefnie's appeal does not constitute a justiciable controversy, but merely an academic exercise, because the parties' child, A.B.S., now resides with him, and no support will be owed to Stefnie. However, because the District Court's order determined the back support owed to Stefnie for the time period that A.B.S. resided with her, we conclude the controversy is justiciable.

         ¶3 A.B.S. was born in September 2011. The parties were never married, and Thomas ended the relationship with Stefnie prior to the birth of A.B.S. From her birth until January 2016, A.B.S. resided with Stefnie. In January 2016, Stefnie was arrested for DUI and criminal child endangerment after having an automobile accident. A.B.S. was in Stefnie's vehicle at the time. A.B.S. was thereafter removed from Stefnie's care and placed with Thomas in California, where A.B.S. has since resided and is apparently doing well.

         ¶4 Stefnie filed a petition for a parenting plan shortly after the birth of A.B.S. On January 25, 2012, a hearing was held regarding an interim parenting plan and interim child support, the Honorable David Ortley presiding. At the hearing, Stefnie testified regarding lavish vacations she and Thomas had enjoyed while they were dating, and that Thomas owned several homes across North America. Thomas testified that he has no income, and that he lived "on the proceeds of the wealth that I created . . . ." Thomas introduced his 2010 U.S. tax return, which showed a negative adjusted gross income, and his Canadian returns, which stated an income of $41, 110. On cross examination, Thomas testified that he had sold his drilling company in 2007 for $7.5 million dollars and owns several other businesses. Thomas acknowledged that he had access to much more than his stated income of $41, 110 to "be able to enjoy life." Thomas acknowledged that he spends significant sums each year on travel, but offered that much of it was business-related, to manage his wealth. Thomas could not provide a specific amount of the money he spends each year. Stefnie's counsel elicited cost estimates from Thomas for his travel in 2011, which could reasonably equal several hundred thousand dollars.

         ¶5 The parties served each other with discovery. Stefnie requested detailed financial information from Thomas, who objected to much of the discovery. Stefnie filed a motion to compel, and Thomas requested a protective order.

         ¶6 Unfortunately, the District Court made no rulings in the case for nearly five years.

         The parties' discovery issues were never addressed. On April 25, 2016, the case was re-assigned to the Honorable Stewart R. Stadler. Trial was held, starting on August 5, 2016, despite the unresolved discovery issues. However, the parties agreed that the necessary evidence for the determination of interim child support had been presented at the January 2012 hearing. Based on this stipulation, the District Court determined interim child support by imputing income to both parties:

Considering his living and lifestyle expenses testified to at the January, 2012 hearing and the child support calculation prepared by Mr. Bourdeau, the Court would impute income to Tom for child support purposes in the amount of $300, 000 annually. The Court would also impute income to Stefnie at minimum wage. Considering this Finding, each party is to submit proposed child support calculations . . . the Court will grant appropriate credit to Tom for payments previously made . . . .

         In the child support worksheet adopted by the District Court, Stefnie and Thomas' imputed incomes were reduced by estimated state and federal taxes, which reduced Thomas' imputed annual income to a net amount of $186, 958. Thomas was ordered to pay $2, 300 per month interim child support from the time of A.S.B.'s birth through January 2016, when he assumed physical custody of the child. He was given credit for his voluntary payment of Stefnie's lease and other expenses during that time, and, based upon these calculations, was ordered to pay Stefnie $5, 930 in arrearages. On appeal, Stefnie argues the District Court erred by imputing only $300, 000 in annual income to Thomas, when the testimony ...

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