NO. 92-241 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

IN RE THE MARRIAGE OF 

JOANN JOCELYN NIKOIAISEN, 

Petitioner and Appellant, 

and 

ALAN KRIS NIKOLAISEN, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Fifteenth Judicial District, 

In and for the County of Sheridan, 

The Honorable M. James Sorte, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Richard J. Carstensen, Attorney at Law, 

Billings, Montana 

For Respondent: 

Laura Christoffersen, Gallagher, Archambeault, 

& Knierim, Wolf Point, Montana 

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

Appellant JoAnn Jocelyn Nikolaisen appeals from a judgment of 

the Fifteenth Judicial District Court, Sheridan County, modifying 

the divorce decree regarding child support and custody. 

We affirm in part and reverse and remand. 

JoAnn (Joey) presents to this Court three issues for our 

consideration which we reduce and rephrase as follows: 

1. Did the District Court abuse its discretion in modifying 

child custody and visitation of the minor children? 

2. Did the District Court err in allowing respondent to 

incorporate the provisions of his Chapter 12 bankruptcy plan as 

well as other "legitimate business expenses" when it calculated 

child support? 

3. Did the District Court err in failing to order respondent 

to pay Joey's educational loans? 

Alan and Joey Nikolaisen were married on August 4, 1972, in 

Plentywood. Two children were born into the marriage. The parties 

primarily resided in Plentywood until the original dissolution 

decree was entered on June 8, 1987. Currently, Alan lives on his 

farm near Plentywood and is an accountant and farmer/rancher. Joey 

is a counselor and lives in Billings. Both parties have had 

physical custody of the children over an extended period of time. 

From 1985 to the entry of the decree, Alan had physical custody of 

the children. Since 1987 to the present, Joey has had primary 

physical custody of the children pursuant to a joint custody 

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agreement signed by both parties. The original decree and custody 

agreement does not provide for custody after 1988. 

Both children have ailments which require medical attention. 

The oldest child, Jessica, was 14 years old at the time of trial. 

She suffers from a round back deformity known as kyphosis. If the 

condition is left untreated it will result in back deformity and 

poor posture, and in some cases back pain is also experienced. 

Joshua was 11 years old at the time of trial. He was five feet 

tall and weighed approximately 170 lbs. He has been diagnosed as 

having a severe weight problem and may also have slightly high 

blood pressure resulting from his excessive weight. Currently, 

both children reside with Joey in Billings. 

Both parents have had difficulty getting their children to 

respond to medical treatment. Joey has not been able to get 

Jessica to wear a back brace which would correct the curvature in 

her spine, and has taken the position that she will not force her 

to wear the brace. 

Alan's efforts have been more successful. While Jessica is in 

his care he has been able to get her to wear the brace. Alan has 

had difficulty getting cooperation from Joey regarding medical 

appointments to determine the future course of Jessica's condition. 

On one occasion, Alan made an appointment with Jessica's orthopedic 

doctor in Billings for spinal x-rays. Upon his arrival from 

Plentywood, Alan found out that Joey had canceled the appointment 

and had taken the children to Flathead Lake. 

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Both parents also differ on how to best deal with Joshua's 

weight problem. While in his father's care in the summer months, 

Joshua, with Alan in attendance, participates in a weight program 

with good results. During the summer of 1989, Joshua lost 20 

pounds, and in the summer of 1990 lost approximately 15 pounds. 

When Joshua returned to Joey's care, the program was discontinued. 

At the beginning of 1990, Joshua was approximately 37 pounds 

heavier than the summer before. Every summer that he has returned 

to Plentywood, Joshua has regained the weight that had been lost, 

plus he has put on some additional weight. During a medical visit, 

Alan discovered that Joshua may have high blood pressure due to his 

excessive weight. Alan asked Joey to have Joshua's blood pressure 

rechecked in Billings, which Joey either failed to do or failed to 

advise Alan that she did. Joey believes that exercise is the best 

method of weight loss and purchased a membership at the YMCA which 

Joshua has not used. 

Alan's visitation rights which were originally agreed upon in 

the custody agreement have gradually eroded with time and have been 

frustrated by Joey. Alan has primary custody of the children 

during part of the summer and on school holidays. Over the past 

year, Jessica has increasingly refused to visit with her father. 

Joey has stated that she would not force Jessica to visit with 

Alan. On July 2, 1991, the District Court ordered Jessica to 

spend two weeks with Alan in Plentywood over the Labor Day weekend. 

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On one occasion, Joey enticed Joshua to cut short his visitation by 

offering to buy him tickets to a concert in Billings. 

Communication between the parents with regard to the welfare 

of the children has broken down. Joey has failed to notify Alan of 

the children's activities, even though he has attended such events 

when advised of the time and date. In addition, Joey has 

continually failed to advise Alan of the children's educational 

progress and medical conditions. 

Both parties have filed a motion for modification of custody 

and support. Joey claims that the children want to live with her 

and are now well accustomed to Billings. Alan counters that Joey 

is failing to meet the medical and physical needs of the children, 

does not encourage visitation, and in fact, impedes visitation. 

The children were appointed a Guardian ad Litem for the litigation. 

The District Court proceedings were stayed pending the outcome of 

Alan's Chapter 12 bankruptcy action and the filing of a plan. A 

hearing was held on November 19, 1991, to determine custody and 

child support. Both the Guardian ad Litem and the family's 

psychologist recommended that the children continue to reside with 

Joey. Both children expressed their desire to live with Joey. On 

March 6, 1992, the District Court issued its Findings of Fact and 

Conclusions of Law and Order. Joey appeals the decision of the 

District Court. 

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I. 

Did the District Court abuse its discretion in modifying child 

custody and visitation of the minor children? 

Joey declares that it was error for the District Court to 

adopt verbatim Alan's proposed findings of fact and conclusions of 

law. We discourage district courts from adopting verbatim findings 

of fact and conclusions of law submitted by the prevailing party. 

In re Marriage of Hurley (1986), 222 Mont. 287, 295-96, 721 P.2d 

1279, 1285. Although a district court may adopt verbatim findings 

of fact and conclusions of law, the practice does not constitute 

error per se. When reviewing the adequacy of the findings of fact 

and conclusions of law, we examine whether they are sufficiently 

comprehensive and pertinent to provide a basis for a decision, and 

whether they are supported by substantial evidence. Hurlev, 721 

P.2d at 1285. With the exception of child support calculations, we 

hold that the District Court's findings of fact and conclusions of 

law meet the above test. 

Joey argues that the court's custody and visitation order 

should be stricken because it is based upon facts that were not 

before the court and the issues should be resolved by the court as 

necessary following the development of any facts that might occur 

later. 

Recently we have stated the following principles when 

reviewing a district court's order modifying physical custody of a 

child: 

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Joint custody is presumed to be in the best interest of 

the child, § 40-4-224(l), MCA, and is awarded to assure 

frequent and continual contact of the minor child with 

both parents. Physical custody should be arranged as 

equally as practical between the parents to comply with 

the express purpose of an award of joint custody, with 

the child's best interest as the primary consideration. 

Section 40-4-224(2), MCA. 

Modification of physical custody within a joint 

custody arrangement is proper when the change is in the 

best interest of the child. A request to change the 

physical custodian of the child requires an application 

of § 40-4-224(2), MCA, which states in part: 

"[J]oint custody" means an order awarding custody 

of the minor child to both parents and providing 

that the physical custody and residency of the 

child shall be allotted between the parents in such 

a way as to assure the child frequent and 

continuing contact with both parents. The 

allotment of time between the parents must be as 

equal as possible: however, 

(a) each case shall be determined according 

to its own practicalities, with the best interest 

of the child as the primary consideration . . . . 

The District Court must consider the factors set 

forth in § 40-4-212, MCA, when determining whether the 

modification of physical custody is in the child's best 

interest. The court is under no obligation to consider 

the more stringent factors set forth in § 40-4-219, MCA, 

when faced with an action for modification of physical 

custody rather than an action for termination of joint 

custody. 

In re Marriage of Ulland (1992), 251 Mont. 160, 166-67, 823 

P.2d 864, 868-69. 

In its order, the District Court ordered Joey to take whatever 

action she believes is necessary to reduce Joshua's weight. 

Joshua's placement was on a temporary basis contingent upon his 

demonstrating a substantial decrease in his weight by the summer 

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vacation in 1992. If Joey cannot get Joshua to lose the weight, 

then Alan may petition the court for a change of custody. 

In his medical report, Dr. Peter Teal, an orthopedist, 

concluded that Jessica would derive very little benefit from 

wearing a back brace because its effectiveness diminishes once a 

female child reaches full growth at age 15 or 16. In its findings, 

the District Court ordered the parents to make an appointment with 

another doctor specializing in kyphosis and obtain a second 

opinion. If the opinion is that Jessica needs to wear a brace, 

then Joey would be given one month to demonstrate that she can get 

Jessica to wear the brace. If Joey cannot obtain Jessica's 

compliance, physical custody of Jessica shall be transferred to 

Alan. No second medical opinion was submitted into evidence for 

this appeal. 

The court was confronted with balancing the children's wishes 

against what would be in their best interests, as well as ensuring 

that the children have a continuing relationship with their father. 

The court found that the children had familial and educational ties 

in both Billings and Plentywood. The record demonstrates that the 

court considered at length the children's health and welfare. The 

court recognized that the children did not wish to move from 

Billings to Plentywood. The court tailored its order so that the 

children could remain in Billings so long as Joey is properly 

attending to the children's medical problems. Both of the 

children's medical conditions are treatable, and the order offers 

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an incentive to Joey to ensure the children receive proper 

treatment. 

With regard to the visitation, the court ordered a more 

detailed arrangement than the existing custody agreement. Again 

the court balanced the wishes of the children, specifically 

Jessica, against Alan's right to see his children and foster a 

meaningful relationship with them. The record demonstrates that 

Joey, on several occasions, has actively undermined Alan% right to 

see the children. Although she stated at trial that she encourages 

the children to visit their father, the pattern of her actions 

have, in reality, discouraged the children from visiting him. The 

court ordered that the parties should restrict the children's 

nonschool activities if the refuse to visit the noncustodial parent 

and ordered Alan and Joey to attend counseling sessions. This 

portion of the order is an attempt by the court to reduce the 

friction between the parties and have both parents actively 

encourage the children to have a relationship with the other 

parent. In addition, the District Court ordered Alan and Jessica 

to attend counseling sessions in an effort to facilitate more 

communication between the two so that Jessica will want to spend 

more time with her father. We hold that the District Court did not 

abuse its discretion in modifying custody and visitation. 

II. 

Did the District Court err in allowing respondent to 

incorporate the provisions of his Chapter 12 bankruptcy plan as 

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well as other "legitimate business expenses" when it calculated 

child support? 

In its child support calculation, the District Court found 

that Alan had $102,000 in gross income while Joey had approximately 

$25,000 in gross income. The District Court deducted from Alan's 

gross income expenditures for replacement cows, office equipment, 

and a stock waterer. The court also deducted approximately $38,465 

as a result of payments being made under Alan's Chapter 12 

bankruptcy, as well as an additional $38,203 in various farm 

expenses. The court deducted the necessary tax payments from 

Alan's net income after business deductions. The court found that 

Alan's net income available for child support amounted to 

approximately $10,500, while finding that Joey had net income of 

$25,000 available for child support. The court did not deduct 

taxes from Joey's gross income, even though there was evidence 

offered regarding her tax liability. The court ordered Alan to pay 

$300 a month in child support for the entire year while Joey was 

responsible for approximately $600 a month. The court ordered Joey 

to pay three months of child support to Alan when the children are 

required to reside with Alan during the summer which could be 

deducted from Alan's overall obligation. 

Joey argues that the District Court improperly used several 

business deductions from Alan's farm/ranch operation to reduce 

Alan's child support obligation. Specifically, she maintains that 

the court should not have applied Alan's Chapter 12 bankruptcy plan 

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payments to determine the amount of his child support obligation 

because it includes payments of his home mortgage. In essence, 

Joey is arguing that with the exception of excluding state, 

federal, and social security taxes, none of the deductions awarded 

to Alan are proper under the guidelines. 

Our standard of review of the district court's findings 

relating to child support is that a presumption exists in favor of 

the district court and we will overturn the court's findings only 

if it has abused its discretion. In re Marriage of Sacry (Mont. 

1992), 833 P.2d 1035, 49 St. Rep. 452. 

Rule 5 of the Guidelines for determining Child Support 

implements a policy of keeping the primary focus on the needs of 

the children by requiring from each obligor's income only a minimum 

of exclusions to be allowed. Rule 5, Guidelines for Determining 

Child Support (1991). The following deductions subtracted from 

gross income are the only ones allowed under the Guidelines for the 

determination of net income: 

[Flederal and state income taxes: FICA: union dues, 

retirement contributions, uniforms, etc., which are 

required as a condition of employment and are not 

reimbursed by the employer; lesitimate business exoenses: 

and health insurance if the benefits are maintained for 

the obligor parent's dependents, including the child(ren) 

of the action at hand. [Emphasis added.] 

Rule 5, Guidelines. 

The Social & Rehabilitative Services Department is responsible 

for the adoption of child support guidelines. Section 40-4-209(5), 

MCA. They have defined "net income" as meaning: 

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[G]ross income, including imputed income and income 

attributed to assets, less any deductions for state or 

federal taxes, social security, and other similar 

deductions required by law or court order. Unreimbursed 

expenses incurred as a condition of employment such as 

union dues, retirement contributions, uniforms and other 

occupational or business exvenses should also be 

deducted. [Emphasis added.] 

46.30.1516, ARM. 

We have stated that when determining income under the 

Guidelines, the court should examine the disposable income of the 

parent and not rely solely on the parent's tax returns. In re 

Marriage of Gray (1990), 242 Mont. 69, 73, 788 P.2d 909, 912. The 

extent of Alan's farm/ranch business is complex. Alan testified at 

considerable length regarding the income that he receives from his 

farm/ranch operation and his accounting position. The evidence 

shows that Alan's expenses were both business and personal in 

nature. 

The court considered, and the record demonstrates, that Alan's 

tax returns did not provide an accurate picture of his ability to 

pay child support for the last two years. Alan was not in 

bankruptcy during the years his tax returns were filed. In one 

year, he had taken as income two years' worth of calf crops, and in 

another year he received ASCS disaster payments which would not be 

payable in a normal crop year. Moreover, during those tax years, 

he testified he had trouble getting the ASCS deficiency payments. 

Due to the lack of those payments, as well as a general decline in 

the farm economy, he became delinquent in his debt obligations and 

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thus the returns did not accurately reflect his debt service 

requirements. Furthermore, Alan testified that he had added in 75 

percent of the total farm estate taxes paid as a personal expense 

since his personnel residence was on the farm property. He added 

in between one-third to three-quarters of his vehicle's value, and 

telephone and travel expenses because they were considered personal 

in nature. The Bankruptcy Court ordered Alan to pay $39,465 to the 

bankruptcy trustee for each year. 

The deduction of the bankruptcy payments is in error. The 

court allowed the husband to deduct his mortgage payments on the 

farm before arriving at what was available for support. These 

mortgage payments were part of the bills that were ordered paid by 

the bankruptcy court. However, the principal which is applied to 

the mortgage each year actually increases the husband's net equity. 

This is especially true when the husband's income of $45,000 per 

year as an accountant appears to be used to subsidize his farming 

operations. Such payments should not be allowed to be subtracted 

as deductions under the guidelines. Interest on the mortgage, 

however, would be a legitimate business expense. There also 

appears to be farm equipment purchased that should have been 

capitalized and not deducted in full. The District Court has not 

followed the guidelines for determining child support. We reverse 

and remand for a full reconsideration and recalculation of all 

factors relating to child support. 

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III. 

Did the District Court err in failing to order respondent to 

pay Joey's educational loans? 

Joey asserts that the Dissolution Decree provided that Alan 

agreed to pay Joey's educational loans and that this Court should 

order him to pay the loans. The record demonstrates that no 

evidence regarding the educational loans was presented at trial. 

We decline to review the matter on appeal. 

We affirm in part and reverse and remand for a full 

reconsideration and recalculation of all factors relating to child 

support. 

0 0 

&A 

Justice 

We concur : .I" 

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