NO. 91-627 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

IN RE THE MARRIAGE OF 

J. SPENCER WEED, 111, 

Petitioner and Respondent, 

and 

KAREN M. WEED, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Twentieth Judicial District, 

In and for the County of Lake, 

The Honorable C. B. McNeil, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

James P. OtBri 

Montana 

For Respondent: 

en, OIB r ien Office, Mis sou 

Keith W. McCurdy, McCurdy Law Firm, Polson, 

Montana 

Submitted on Briefs: May 21, 1992 

b,L'~g -1992 Decided: August 6, 1992 

. , . 
Justice William E. Hunt, Sr., delivered the opinion of the Court. 

Appellant Karen M. Weed appeals from a decree of dissolution 

entered in the Twentieth Judicial District Court, Lake County. 

We affirm in part and reverse in part. 

The issues raised by appellant for our consideration are as 

follows: 

1. Did the District Court err in its computation of child 

support? 

2. Did the District Court err in the division of the marital 

estate? 

3. Did the District Court err in the award of maintenance to 

appellant? 

The parties were originally married in 1969. Prior to the 

marriage, the parties entered into an antenuptial agreement. The 

marriage ended in dissolution on December 11, 1972. The parties 

remarried on March 23, 1973, and entered into a second antenuptial 

agreement. Both antenuptial agreements were essentially the same. 

Two children were born duringthe second marriage--Barbara, age 15, 

and Douglas, age 7. 

Respondent J. Spencer Weed began his own cattle ranch in 1967 

which he expanded to approximately 2800 acres prior to the parties' 

second marriage. The ranch is currently being leased to two 

individuals. The income from the leases amounts to approximately 

$12,000 annually. In addition to the ranch, Spencer's property 

consists of a savings account, a gun collection, and miscellaneous 

property. Finally, Spencer is a contingent beneficiary of two 
trusts. The current value of the 1923 trust is approximately $1.3 

million, while the 1929 trust is valued at about $1.4 million. 

Currently, his 83-year-old mother is the beneficiary of these 

trusts. 

At the time of trial, Karen was 41 years old and Spencer 

was 51. Spencer is in general good health, but does suffer from 

alcohol abuse and is hearing impaired. Karen suffers from chronic 

low back pain and respiratory infections. The parties' oldest 

child has a form of epilepsy which requires constant medication and 

monitoring by a neurologist. Both parties are capable of working 

at minimum wage level jobs, but are unemployed and Karen is 

currently receiving monthly AFDC benefits in the amount of $390. 

It is unclear from the record whether the parties' daughter is 

receiving state medical assistance. 

On March 15, 1990, Spencer filed a petition for dissolution. 

Pursuant to a motion, the court granted partial summary judgment 

relating to the disposition of the marital estate. The court ruled 

that pursuant to the 1973 antenuptial agreement the parties were to 

retain their own real and personal property owned prior to the 

second marriage. In effect, this order barred Karen from asserting 

any claim to the ranch and the two trusts. Karen does not 

challenge the validity of the order in her appeal. 

On September 23, 1991, the District Court conducted a hearing 

concerning the distribution of the remaining marital estate, child 

custody and support, and maintenance. On November 14, 1991, the 
court issued its findings of fact and conclusions of law and 

decree. It is from this order that Karen appeals. 

I. 

Did the District Court err in its computation of child 

support? 

In its findings of fact, the court ruled that both Karen and 

Spencer were capable of minimum wage employment. In the child 

support guidelines work sheet, the District Court imputed to Karen 

a yearly minimum wage of $8840, based on its finding that she was 

capable of minimum wage employment. The court imputed a yearly 

wage of $12,116 to Spencer, based on his income derived from the 

ranch leases. Unlike its treatment of Karen, the court did not 

impute income from minimum wage to Spencer and offers no 

explanation for the disparate approach. Based on these figures, 

the District Court ordered that Spencer pay $247.25 per month in 

child support for both children and ordered that both Spencer and 

Karen share equally in the health expenses of the children. 

Our standard of review in reviewing child support is that a 

presumption exists in favor of the district court determination, 

and this court will reverse the district court only if it has 

abused its discretion. In re Marriage of Sacry (Mont. 1992), - 

P. 2d , 49 St. Rep. 452. 

Section 40-4-204(3)(a), MCA, provides that: 

Whenever a court issues . . . an order concerning 

child support, the court shall determine the child 

support obligation by applying the standards in this 

section and the uniform child support guidelines adopted 

by the department of social and rehabilitative services 
. , . unless the court finds by clear and convincing 

evidence that the application of the standards and 

guidelines is unjust to the child or to any of the 

parties or is inappropriate in that particular case. 

Section 46.30.1513 (1) (a), A.R.M., of the guidelines defines 

gross income for child support as: 

[Ilncome from any source, except as excluded below, and 

includes but is not limited to income from salaries, 

wages, commissions, bonuses, dividends, severance pay, 

pensions, interest, trust income, annuities, capital 

gains, social security benefits, worker's compensation 

benefits, unemployment benefits, gifts and prizes and 

alimony or spousal maintenance. 

Section 46.30.1513 (1) (b) , A.R.M., defines "imputed income" as 

income from a parent who is either voluntarily unemployed or 

underemployed, and that income may be imputed to the parent based 

on the parent's ability or capacity to earn net income. 

Because of the guidelines definition of gross income and 

imputed income, Spencer's income derived from leasing his ranch was 

was appropriately considered by the court as gross income for the 

purposes of calculating child support. In addition, while the 

District Court concluded that Spencer was capable of minimum wage 

employment, it failed to offer any explanation as to why it did not 

impute this income to Spencer for child support purposes while at 

the same time imputing the income to Karen. Because the court 

found that Spencer was capable of minimum wage employment, we hold 

that the court should have imputed this income for calculating 

child support. See generally, In re Marriage of Chivaro (1991), 

247 Mont. 185, 805 P.2d 575. We hold that the District Court 
abused its discretion in not imputing to Spencer a yearly minimum 

wage for the purpose of calculating child support. 

Karen also contends that the District Court abused its 

discretion in directing that the parties share equally in the 

health expenses of the children because it did not consider the 

children's extraordinary medical expenses. The parties' oldest 

child suffers from a form of epilepsy which requires constant 

medication and specialized monitoring. Karen is receiving AFDC 

benefits in the amount of $390 a month, as well as tapping into the 

oldest child's savings account for income. 

The child support guidelines delineate how a district court 

should proceed for extraordinary medical expenses which are likely 

to recur on a periodic basis. The expense should be prorated 

between the parents and added to supplement the child support 

obligation. Section 46.30.1525(~), A.R.M. Determining the amount 

to be paid can be accomplished by adding a monthly average of past 

expenses if future costs are comparable. Section 46.30.1525(c)(i), 

A.R.M. 

The District Court did not make any finding regarding the 

oldest child's medical condition or the extraordinary medical 

expenses that will probably be incurred in the future. We hold 

that the District Court abused its discretion and erred in the 

calculation of child support. 

11. 

Did the District Court err in the division of the marital 

estate? 
Recently we have clarified our standard of review regarding 

the distribution of the marital estate. Our standard of review in 

the division of marital property is whether the district court's 

division of the marital estate is clearly erroneous. Sacry, 49 St. 

Rep. 452. 

In granting Spencer's motion for partial summary judgment on 

the question of the validity of the 1973 antenuptial agreement, the 

court awarded the parties their own real and personal property 

acquired prior to the marriage. The effect of this order allowed 

Spencer to retain his 2800 acre ranch. The court determined in the 

decree that the value of the parties' marital estate amounted to 

$36,669, which consisted of an extensive list of personal property. 

Spencer submitted a list of property that was to be divided by the 

parties. The record reflects that in response to the court's 

February 13, 1991, order, Karen's list of proposed property 

distribution, with some minor exceptions, is similar tothe court's 

distribution of the marital estate. 

Karen also contends that the District Court failed to consider 

Spencer's expectation as a contingent remainderman in an 

inheritance when determining the division of the marital estate. 

Generally, under 5 40-4-202 (I), MCA, the court must consider future 

acquisition of assets in proceedings to divide marital property 

following dissolution of marriage, and failure to so may result in 

error. In re Marriage of Alt (1985), 218 Mont. 327, 708 P.2d 258. 

Under the facts of this case, the court ruled that the 1923 and 

1929 trusts were premarital property and were governed by the terms 
of the court's partial summary judgment order, and thus excluded as 

a marital asset. In addition, Spencer does not have a present 

vested interest in the trusts and will not have an interest in the 

trusts unless he survives his mother. If he should die before his 

mother, then the benefits of the trust will pass on to the two 

children. We hold that the division of the marital estate was 

supported by substantial evidence and that the District Court did 

not err in the division of the marital estate. 

111. 

Did the District Court err in the award of maintenance to 

appellant? 

Recently we have stated that our standard of review in 

maintenance award cases is whether the district court's findings of 

fact are clearly erroneous. In re Marriage of Eschenbacher and 

Crepeau (Mont. 1992), - P.2d , 49 St. Rep. 393. A district 

court may award maintenance after the marital property has been 

equitably divided pursuant to 5 40-4-202, MCA, and the court has 

properly applied the criteria of 5 40-4-203, MCA. 

In this instance, Karen requested a monthly maintenance award 

of $200. The District Court divided the only cash asset available 

to the parties and awarded Karen a $13,519.35 lump sum maintenance 

payment. This amounts to $200 a month for five and one-half years. 

The court considered the ability of Spencer to meet his own needs 

while meeting the needs of Karen. Spencer is currently unemployed 

and receives approximately $1000 a month from leasing his ranch and 
has been awarded the marital debt. We hold that the District Court 

did not err in granting Karen a lump sum maintenance award. 

We remand this matter to the District Court for further 

proceedings in accordance with this opinion. 

We concur: