In Re the Marriage of Larson

No. 88-219
IN THE SUPREME COURT OF THE STATE? OF MONTANA
1988
IN RE THE MARRIAGE OF
VICKIE LYNN LARSON,
Petitioner and Respondent,
and
LONNIE EINAR LARSON,
Respondent and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Thomas Honzel, Judge presiding.
COUNSEL OF RECORD:
For Appell-ant:
Lonnie E. Larson, pro se, Helena, Montana
For Respondent:
Dowling Law Firm; Thomas F. Dowl-ing,Helena, Montana
Submitted on Briefs: Aug. 26, 1988
Decided: October 31, 1988
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Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Lonnie Einar Larson, acting without counsel, appeals
from the judgment of marital dissolution, property
settlement, and child support entered by the District Court,
First Judicial District, Lewis and Clark County, in the
dissolution of his marriage from Vickie Lynn Larson. We
affirm the District Court judgment on all counts and remand
the case to the District Court for determination of proper
attorney fees to be awarded respondent on appeal.
Lonnie and Vickie Larson were married on November 10,
1983. No children were born of the marriage but Vickie is
the mother of a girl who will be 16 years old on December 26,
1988. During the course of the marriage, Lonnie adopted the
girl on March 15, 1984.
The decree of marital dissolution was entered on January
26, 1988. The District Court divided the marital property
and ordered Lonnie to pay Vickie $185 per month as child
support for the minor girl, to terminate when she reaches the
age of 18, marries, or is otherwise emancipated. Husband was
awarded reasonable rights of visitation, and wife was awarded
sole custody.
In this case, husband has discharged two attorneys
during the course of the civil action, and on appeal,
represents himself. His objections on appeal against the
judgment are not well articulated. His brief does not
include a statement of the issues for review, as required by
Rule 23(a)(2), M.R.App.Civ.P. Because he is without counsel,
we are not insisting on the formal clarity ordinarily
reserved for briefs filed by lawyers. In our examination of
his contentions, we find him objecting principally to the
division of the marital estate, and to the award of child
support.
We look first at the marital property division. The
District Court awarded the wife the following:
(a) A 1986 Honda Accord
(b) Her public employment retirement system benefits,
her deferred compensation ($918) and an IRA account
($2,000)
(c) All personal property presently in her possession
with the exception of the Ashley wall unit, 2 brass end-
tables and two lamps
The District Court award of marital property to the
husband included:
(a) A 1985 Honda Prelude
"
(b) His public employment retirement system benefits,
his deferred compensation (not spelled out in the
findings, but from the transcript, in excess of $5,000)
and his IRA'S ($4,000)
(c) Personal property presently in his possession plus
the Ashley wall unit, 2 brass end-tables and two lamps
The court provided each of the parties would be
responsible for debts incurred by him or her after the date
of separation. Husband was charged with paying the balance
owing on the Mastercard bill (not specified) and the loan at
the State Capital Employees Credit Union.
In his brief, husband argues that he brought into the
marriage assets of $52,118.75 or 97% as compared with the
wife's $1,025.00 or 3% of the marital assets. During the
course of their marriage, they bought a home and sold it and
applied the profits to pay outstanding bills and to pay for
the two automobiles. Husband also had other property which
was sold during the marriage. Some of the personal property
apparently had been used by him for business purposes.
Husband's brief does not suggest in what way the
division of the property by the District Court should be
revised or modified by us. From the modest amount of
personal property divided and the apparent effort of the
District Court to make certain that each of the parties had
an automobile, the retirement benefits owned by each through
their employments, and their own personal property, one can
find little or no basis to state that the District Court
abused its discretion in dividing the personal property,
regardless of which party brought the greater amount of
property into the marriage. In Brown v. Brown (1978), 179
Mont. 417, 587 P.2d 361, we stated that the standard for
reviewing a property division in a marital dissolution decree
is that the apportionment made will stand unless there has
been a clear abuse of discretion as manifested by a
substantially inequitable division of the marital assets
resulting in substantial injustice. We have followed that
standard fairly consistently. Applying that standard of
review to this case, we find a complete lack of any reason to
reverse or modify the District Court's division of the
marital property.
With regard to child support, the District Court
determined that the husband should pay the wife $185 per
month as child support for the minor girl. Husband ' s
principal objection to the payment of the child support seems
to be that the wife induced him to adopt the minor child,
knowing that she would eventually seek a divorce from him.
In this way, husband implies he was "fraudulently" led into a
support duty for the minor child. Nothing in the transcript
supports this innuendo. Under § 40-8-125, MCA, after a final
decree of adoption is entered, the relation of parent and
child, and all the rights, duties and other legal
consequences of the natural relation of child and parent
exists between the adopted child and the adoptive parent. A
marital dissolution action is no place for a collateral
attack upon an adoption.
When a final child support award is attacked on appeal,
the standard of review is whether an abuse of discretion has
occurred which results in substantial injustice. Brown v.
Brown, supra; In Re Marriage of Benner (1985), 711 P.2d 802,
42 St.Rep. 1943.
The task of the District Court in this case to determine
the amount of the husband's net income available for child
support was made difficult by the deductions that the husband
took for deferred compensation and a credit union. The court
noted, for example, that his pay slip for the two-week pay
period, ending November 20, 1987, showed a net income for
that period of only $135.76, and a year-to-date income of
$2,382.14. Yet his year-to-date gross income for that period
was $14,559.00 and his gross income for the two-week period
was $614.00. It appears that husband had deducted a
considerable amount for deferred compensation and the credit
union. He also had extra money withheld for his taxes. The
court found that the amount of his paycheck was misleading in
helping in any determination of net income available for
child support. The court did take into consideration various
factors and determined that husband had available for
purposes of child support an income of $865.00 per month from
his employment from the State of Montana. He had in addition
a monthly income of $395.00 from a corporate liquidation,
which will run far beyond the period of his child support
payments.
Wife, on the other hand, is an employee of the State of
Montana, who has a net annual income for child support
purposes of $10,459.00. Her take-home pay is $402.30 for
each two-week pay period. In addition, she has done
part-time work as a hostess at a local restaurant, and had.
some minor income for modeling.
The evidence shows the child's support needs amounted to
$300.00 per month, of which husband was ordered to pay
$185.00 or 61.7 percent. In view of their available incomes
for child support purposes, the amount awarded by the court
is well within the child support guidelines promulgated by
this Court for such cases, effective January 13, 1986 (cause
no. 86-223). We find no abuse of discretion in the amount of
child support awarded.
Husband further claims that in this case he is entitled
to attorney fees of $2,000.00. Our determination is that
attorney fees should be awarded the other way, in favor of
wife. Husband's appeal is obviously trifling, without
substantial basis, and perhaps mean-spirited. We are
satisfied from the record and the presentation of the appeal
in this civil case that the same was taken without
substantial or reasonable grounds, and merits an award of
damages under Rule 32, to the other party, in the form of her
counsel fees incurred in this appeal.
Accordingly, we affirm the judgment and decree of the
District Court, and remand this cause to the District Court
for the further purpose of determining proper attorney fees
on appeal to be awarded to Vickie Lynn I,arson, in addition to
her ordinary costs of appeal.