Marriage of Sanburn ( 1995 )

NO. 95-048
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Powder River,
The Honorable Kenneth R. Wilson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jerrold L. Nye, Nye & Meyer,
Billings, Montana
For Respondent:
A. Lance Tom, Lucas & Monaghan,
Miles City, Montana
Submitted on Briefs: April 27, 1995
Decided: July 17, 1995
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Appellant Scott J. Sanburn appeals from an order modifying
child support issued by the Sixteenth Judicial District Court,
Powder River County. We affirm.
The sole issue on appeal is:
Did the District Court err when it determined the amount of
modification in appellant's child support obligation?
Scott and Pam Sanburn were divorced on July 14, 1992. Scott
was ordered to pay $650 per month in child support for the parties'
three minor children. In May 1994, one of the children was
emancipated following graduation from high school. Pursuant to the
final decree of dissolution, upon the oldest child's emancipation,
Scott's child support obligation was reduced to $500 per month as
of June 15, 1994. In July 1994, Scott filed a motion to modify his
child support obligation based on changed financial circumstances.
A hearing on this motion was held on September 8, 1994.
At the hearing, the District Court heard testimony from both
parties and received financial affidavits and child support
calculations from Scott. Scott's child support calculation
worksheet placed his child support obligation amount at $149 per
month. Scott did not produce documentation at the hearing to
support his assertion that his finances had changed to the extent
that child support modification was necessary. He did not provide
any documentation of his expenses. Scott's testimony regarding his
current and future financial circumstances was vague, and consisted
of rough estimates of the dates of employment and the amount of
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money earned. He was not any more specific when testifying as to
his future employment and earnings. He testified that he worked
construction and ranching jobs, and also that he is self-employed.
He raises and sells calves with a partner. He testified that he
would be losing money on the calf operation for 1994, but that he
intended to continue the operation. His testimony was
contradictory and confusing, and contradicted the information in
his financial affidavit. There were discrepancies in Scott's
testimony between the amount of his earnings and expenses. Scott
testified that his tax returns do not accurately reflect the amount
of his earnings, due to the inclusion of personal expenses as
business expenses for tax purposes.
Because of the contradictory and confusing nature of Scott's
testimony, following the hearing the District Court ordered him to
submit more accurate child support calculations. Scott's second
calculated child support obligation increased by $6, to a total of
$155 per month. Pam's child support calculation worksheets put
Scott's child support obligation amount at $507 per month. The
existing child support obligation was $500 per month. The District
Court found Scott's first and second child support calculations,
and his testimony, to be incredible, and rejected them in toto.
The only documentation the District Court had was Scott's 1993 and
1992 income tax returns, and it based its award of child support on
that documentation. The District Court set the child support
amount at $405 per month.
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Did the District Court err when it determined the amount of
modification in appellant's child support obligation?
Our standard of review in child support modifications is
whether the district court abused its discretion. In re Marriage
of Hill (1994), 265 Mont. 52, 57, 874 P.2d 705, 707 (citing In re
Marriage of D.F.D. and D.G.D. (1993), 261 Mont. 186, 203, 862 P.2d
368, 378).
Scott argues that the District Court attributed income to him
that is not supported by the record. The District Court used the
following figures in its child support calculations for Scott:
Wages $12,373
Self-Employment 6,214
Depreciation 3,500
Interest
TOTAL: $22,1%
These figures came from Scott's income tax returns and from his
July 1994 affidavit.
Modification of a child support obligation requires that the
party seeking the modification establish circumstances so
substantial and continuing as to make the original child support
obligation unconscionable. Section 40-4-208(2) (b) (i), MCA. In re
Marriage of Paunovich (Mont. 1995), 890 P.2d 1291, 1293, 52
St. Rep. 144, 145 (citing In re Marriage of Clyatt (1994), 267
Mont. 119, 121-22, 882 P.2d 503, 505).
In this case, Scott failed to establish that his financial
circumstances changed to the extent that his original child support
obligation was unconscionable. He provided no documentation to
support his testimony. His testimony was contradictory, vague, and
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confusing, and did not support the information he provided in his
financial affidavit. After the hearing, the District Court
requested different child support calculations from Scott. Scott
testified that he was able to pay $200 per month. He was currently
paying $500 per month, and his second calculation indicated an
obligation amount of $155 per month.
The evidence in the record supports the amount of income the
District Court attributed to Scott. We see no abuse of discretion
by the District Court. We hold that the District Court did not
abuse its discretion when it determined the amount of income
attributable to Scott.
Scott contends that the child support obligation ordered by
the District Court does not conform to the Montana Child Support
Guidelines.
The District Court ordered Scott to submit new child support
calculations after the hearing. The District Court stated in its
order that it rejected Scott's testimony and his two child support
calculations in toto. It used a combination of figures from
Scott's income tax returns and from his July 1994 affidavit.
When a district court does not specifically follow the child
support guidelines it must state the reasons why they are
inappropriate in that case. Section 40-4-204(3) (b), MCA.
In this case, the District Court stated that it rejected
Scott's testimony and child support calculations in toto. It
stated that Scott's contradictory testimony and his child support
computations put him in a "disingenuous" position. It is clear
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that the District court could not base its child support
calculations on evidence that it rejected. It rejected Scott's
offered evidence because of its incredibility. We hold that the
District Court conformed to the Child Support Guidelines.
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 the Supreme Court and by a report of its result
to Montana Law Week, State Reporter and West Publishing Company.
We concur:
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