Marriage of Belet ( 1995 )

No. 94-130
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
IN RE THE MARRIAGE OF
KATHLEEN JEANE BELET,
Petitioner/Cross-Appellant,
and
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John Henson, Judge presiding.
COUNSEL OF RECORD:
F?r Appellant:
Richard A. Reep, Reep, Spoon & Gordon, Missoula,
Montana
For Respondent:
John C. Schulte, Missoula, Montana
Submitted on Briefs: February 9, 1995
Decided: May 4, 1995
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal from the findings of fact and conclusions of
law of the Special Master approved by the Fourth Judicial District
Court, Missoula County, in the marriage dissolution of Kathleen and
David Belet. We affirm in part, reverse in part and remand for
issuance of an order pertaining to the uncovered medical expenses
of the children.
Some of appellant's and all of cross-appellant's proposed
issues are based upon factual determinations made by the Special
Master and the District Court. Unfortunately, neither party
ordered a transcript of either proceeding and this Court cannot
review any findings of fact to see if they are erroneous.
Therefore, we only address the following legal issues:
I. Did the District Court err in dividing the uninsured and
uncovered medical expenses equally rather than on the ratio of the
parties' income pursuant to Rule 46.30.1525 and Rule 46.30.1532?
II. Did the District Court abuse its discretion in not awarding
retroactive child support from the date of separation of the
parties?
III. Did the District Court abuse its discretion in failing to
order Kathleen pay $300.00 per month in support and $50.00 in
medical expenses during the period of separation as agreed by
Kathleen in writing at the time of separation?
IV. Did the District Court err pursuant to § 40-4-201, MCA, in
failing to make a finding of conscionability or unconscionability
of the parties' Separation Agreement filed with the court?
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V. Did the District Court err in allowing Kathleen to amend the
Petition for Dissolution to provide for distribution of property?
VI. Did the District Court abuse its discretion in failing to
award David attorney's fees?
The parties to this acrimonious dissolution were married on
July 26, 1980 and separated on June 23, 1991. The couple have two
sons, ages five and nine, who reside in the family home with the
father. However, the parents share custody of the children with
scheduled visits made to coincide with the mother's work schedule.
The parties executed an Agreement of Separation which contained
provisions for support, custody and visitation.
On August 27, 1991, Kathleen Belet (Kathleen) filed a Petition
for Dissolution of Marriage. In this initial petition, Kathleen
alleged that all property had been equitably distributed.
Kathleen's husband, David Belet (David), agreed with the
distribution.
On September 19, 1991, the District Court assigned the case to
a special master, both parties stipulating to the assignment. For
the next year, the parties attempted negotiation concerning the
couple's two children. In September of 1992, Kathleen reported at
a settlement conference that she wished to reopen the issue of
property distribution. The District Court granted the amendment.
An Amended Petition for Dissolution of Marriage was filed in
October of 1992. A hearing was set by the Special Master for June
24, 1993. Another supplemental hearing was held on July 23, 1993.
The Special Master entered her Findings of Fact and Conclusions of
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Law on July 23, 1993. David objected to these findings formally
and Kathleen replied.
The District Court then set a hearing for oral argument
September 28, 1993, which was then continued until October 19,
1993. Following argument, the court slightly modified the Findings
of the Special Master and issued an Order and Opinion on December
9, 1993. A final decree of dissolution was entered by the court on
December 27, 1993.
The transcripts of the Special Master's hearing and the oral
argument to the District Court remain untranscribed. Because of
our inability to review the transcripts, this Court will consider
as conclusive the Findings of Fact of the District Court.
Did the District Court err in dividing the uninsured and
uncovered medical expenses equally rather than on the ratio of the
parties' income pursuant to Rule 46.30.1525 and Rule 46.30.1532?
David argues that the District Court and the Special Master
did not pro-rate the children's uncovered medical expenses.
Kathleen contends that the administrative rule governing the
division of these expenses is only a suggestion and not mandatory.
Pursuant to the Child Support Guidelines, the District Court
determined that the available resources of the parents stand at 59%
for Kathleen and 41% for David. Despite this finding made in a
worksheet attached to the court's Opinion, the court determined
that the couple should share the uncovered medical expenses
equally.
District courts are required to follow the Child Support
Guidelines or declare why they have deviated. Section 40-4-204,
MCA. The District Court did not explain why it accepted the
Guidelines as controlling yet deviated from them when assessing the
uncovered medical costs of the children. The Guidelines show that
Kathleen produced 59% of the available family resources and David
41%
Administrative Rule 46.30.1525 states that:
SUPPLEMENTS FOR PRIMARY CHILD SUPPORT NEED
(1) The basic primary child support obligation may be
supplemented upon the following conditions:
(a) "Child care costs" means when a child support
obligation is to be calculated based in part on the
earnings of a custodial parent and that parent must incur
child care expenses for that child as a prerequisite to
employment, it is recommended that the reasonable costs
of child care should be pro-rated between the parents and
added to supplement the basic child support obligation;
ibi if'"extraordinary medical expenses" are incurred on
behalf of a child which are likely to reoccur on a
periodic basis, those expenses should be pro-rated
between the parents and added to supplement the basic
child support obligation. (Emphasis added.)
A.R.M. Rule 46.30.1532 likewise requires the uninsured medical
needs of the children to be apportioned by the court on the same
basis that it apportions the primary support
The Child Support Guidelines were followed by the court and
the Special Master when determining the appropriate monthly child
support; however, both deviated from the administrative rules that
were devised to help courts administer the guidelines when
attempting to divide supplemental needs of the children. Neither
authority has provided an explanation for the deviation.
It is clear that the administrative rules recommend that extra
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expenses should be pro-rated. Unless the court has a reason for
deviation, the administrative rules governing the guidelines should
be used.
We hold that the District Court erred in not pro-rating the
uncovered medical expenses of the children on the basis of David,
41%, and Kathleen, 59%. We reverse the District Court's conclusion
of law #14 because it is based upon an erroneous legal
interpretation and we remand this action to the District Court for
issuance of an order that the uncovered medical, ocular, and dental
care expenses of the children be pro-rated to the parents at 59%
for Kathleen and 41% for David.
II.
Did the District Court abuse its discretion in not awarding
retroactive child support from the date of separation of the
parties?
David argues that he has been the sole support of the children
for two and one half years and that he is entitled to retroactive
child support from the present back to the time of separation.
Kathleen argues that she provided monies for the childrens' care
during the dissolution period.
The District Court has discretion in determining whether
retroactive child support should be awarded; and we will not
disturb that decision unless a clear abuse of discretion results in
substantial prejudice. Marriage of Nash (1992), 254 Mont. 231, 836
P.2d 598. The District Court concluded that no retroactive child
support should be awarded. The court also stated that the
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Separation Agreement was only a temporary agreement and close
reading of that agreement shows this to be true.
While the court has not provided us with a reason for denial
of retroactive support, the court has stated unequivocally that the
Separation Agreement calling for a $300 per month payment by
Kathleen was only temporary and that the parties continue to be
hostile to one another despite the negative impact on their
children. Kathleen argues that David admitted at trial that
retroactive support was not needed. However, as we have already
stated, we have no trial testimony to review so we must conclude
that the District Court did not abuse its discretion by failing to
award retroactive child support.
III.
Did the District Court abuse its discretion in failing to
order Kathleen to pay $300.00 per month in support and $50.00 in
medical expenses during the period of separation as agreed by
Kathleen in writing at the time of separation?
David argues that the Separation Agreement that both parties
signed following their separation is binding on the issue of
support and that Kathleen should pay him the agreed upon amount of
$300. Kathleen argues that the Agreement was only for a matter of
months.
The District court determined that the Agreement was
temporary. A review of that Agreement shows that it was meant to
be in force from July of 1991 until December of 1991. Thus,
David's argument that Kathleen was legally bound to pay $300
support because she agreed to it is not persuasive. Further, the
District Court is not bound by any written agreement of the parties
concerning support or custody of the children. Section 40-4-
201(Z), MCA.
We hold the District Court did not abuse its discretion in
failing to order Kathleen to pay $300.00 per month in support and
$50.00 in medical expenses during the period of separation as
agreed by Kathleen in writing at the time of separation.
Did the District Court err pursuant to 5 40-4-201, MCA, in
failing to make a finding of conscionability or unconscionability
of the parties' Separation Agreement filed with the court?
David argues that the court cannot change the Separation
Agreement unless it makes a finding of unconscionability. That is
not what the statute says:
[Tlhe terms of the separation agreement, except those
providina for the support, custody, and visitation of
children, are binding upon the court unless it finds,
after considering the economic circumstances of the
parties and any other relevant evidence produced by the
parties, on their own motion or on request of the court,
that the separation agreement is unconscionable.
(Emphasis added.)
The court is not bound by any provision in an agreement pertaining
to support, custody or visitation, no matter whether it makes a
finding that the agreement is unconscionable or not. It is only
the remainder of the agreement, minus any concerns for the
children, that requires the court to first make a finding of
unconscionability before it changes the terms of the agreement.
We hold that the court did not err in failing to make a
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finding of conscionability or unconscionability pursuant to § 40-4-
201, MCA of the parties' Separation Agreement filed with the court.
V.
Did the District Court err in allowing Kathleen to amend the
Petition for Dissolution to provide for distribution of property?
The rules of civil procedure require that leave to amend
pleadings be freely given when justice requires. Rule 15,
M.R.Civ.P., Stanford v. Rosebud County (1992), 254 Mont. 474, 839
P.2d 93. Even though the distribution of property had already been
settled, the District Court chose to allow Kathleen to amend the
pleadings to ask the court to make a distribution of property.
Because we have no transcript of any of the proceedings before the
Special Master or the District Court, we cannot say that the
District Court erred in allowing Kathleen to amend her petition.
We hold that the District Court did not err in allowing
Kathleen to amend her original petition for dissolution and add a
request that the court consider the property distribution.
“I.
Did the District Court abuse its discretion in failing to
award David attorney's fees?
David argues that he is due attorney's fees because of
needless litigation begun by Kathleen. Kathleen does not agree.
In a dissolution proceeding, the District Court is given the
discretion to award costs and attorney's fees if it believes that
the financial situation of the parties warrants it. Section 40-4-
110, MCA. We will not disturb that decision absent an abuse of
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discretion. In re Marriage of Sullivan (1993), 258 Mont. 531, 853
P.2d 1194.
The District Court did not award attorney's fees to either
party. In the absence of a complete record, we hold that the
District Court did not abuse its discretion in failing to award
attorney's fees to either party.
Affirmed in part and reversed and remanded in part for the
issuance of a court order requiring Kathleen to pay 59% and David
41% of the children's uncovered medical, ocular, and dental costs.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of this Court and by a report of its result to the
West Publishing Company.
We Concur:
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May 4, 1995
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
prepaid,
following named:
Richard A. Reep
REEP, SPOON & GORDON, P.C.
P.O. Box 9019
Missoula, MT 59807
JOHN C. SCHULTE
Attorney at Law
111 North Higgins, Suite 502
Missoula, MT 59802
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
BY&W -
Deputy