NO. 95-151 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

IN RE THE MARRIAGE OF 

SHARON GAYLE WAITE, 

f/k/a Sharon Gayle Greenlee, 

Petitioner and Appellant, 

SEP 08 19% 

and 

ROGER WAYNE GREENLEE, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Russell K. Fillner, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Kevin T. Sweeney, Sweeney & Healow, 

Billings, Montana 

For Respondent: 

Robert J. Wailer, Wailer & Womack, 

Billings, Montana 

Filed: 

Submitted on Briefs: July 13, 1995 

Decided: September 8, 1995 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

The appellant, Sharon Gayle Waite, filed a renewed motion for 

modification of decree of dissolution, a motion to determine dollar 

value of judgment, and a motion to determine judgment, in the 

District Court for the Thirteenth Judicial District in Yellowstone 

County in which she asked the District Court to change residential 

custody of the parties' minor son, modify the child support 

language found in the dissolution decree, and determine the amount 

the respondent, Roger Greenlee, owed her pursuant to the 

dissolution decree. The District Court granted Waite's motion for 

change of residential custody, established the child support 

Greenlee owed Waite, and denied Waite's motion for payment of 

income from Greenlee's partnership. Waite appeals the District 

Court's child support and partnership decisions. We affirm the 

order of the District Court. 

Waite raises the following issues: 

1. Did the District Court err when, for purposes of 

calculating child support, it did not consider Greenlee's passive 

income? 

2. Did the District Court err when it failed to award Waite 

a share of Greenlee's passive partnership income? 

FACTUAL BACKGROUND 

Sharon Gayle Waite and Roger Wayne Greenlee are in what 

appears to be the final round of a twelve-round boxing match. By 

all accounts, Waite and Greenlee have still not removed their 

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gloves, tattered as they may be, and instead, continue throwing 

powerful head and body shots in an obvious attempt to reduce one 

another to vegetable matter. What follows is our attempt to 

referee the final round. See In re Marriage of Greenlee ( 19 9 1) , 2 4 9 Mont . 

521, 816 P.2d 1073. 

Greenlee is a dentist, and during the marriage entered into 

the Rose Park Professional Center Partnership with four other 

dentists. As a result, he became a one-fifth owner of the Rose 

Park Professional Center. The sole purpose of the Partnership is 

to "own, manage and maintain the Center, the building in which the 

partners maintain their offices." The partnership generates income 

by charging the partners and two non-partner tenants monthly rent, 

although it appears from the record that the two non-partner 

tenants pay an insubstantial amount of rent as compared to the 

partners. The partnership uses the monthly rent to make its 

regular mortgage payments and pay necessary expenses. At some 

point, the partners agreed that they would use all but $1,000 of 

each of the partner's yearly partnership distributions to make an 

additional payment on the mortgage in an effort to retire the debt 

owed for the Center at an early date. 

On October 16, 1990, the District Court dissolved this 

couple's marriage, ordered joint custody, and designated Greenlee 

as the primary residential custodian of the two minor children, 

Jene ' and Ryan. 
Eventually, Waite moved the District Court to designate her 

the primary residential custodian of Ryan, and it did so. However, 

Waite and Greenlee were unable to agree on the amount of child 

support for which Greenlee was responsible. Therefore, the 

District Court held a hearing, following which it found that 

Greenlee had a net income in 1993 of $38,412, that he had interest 

income in 1993 of $733, and that he had a total distribution from 

the partnership in 1993 of $7,692, only $1,000 of which he actually 

received. The remaining $6,692 was classified by the partnership 

accountant as "passive income," on which Greenlee was taxed. 

The District Court found that the funds distributed to 

Greenlee by the partnership represent a return of Greenlee's own 

contribution to the partnership made during the course of the year. 

In other words, Greenlee, through payment of rent, insured that at 

the end of each year, he would receive a distribution from the 

partnership, all but $1,000 of which the partnership would retain 

in order to more quickly pay off the mortgage on the Center. The 

District Court found that "it is not fair or reasonable to include 

the passive income portion of this distribution as income for child 

support purposes because it is not money over which Roger has any 

control." Therefore, the court found that Greenlee's gross income 

for child support purposes was $55,687, while his net income for 

child support purposes was $40,145. 

The District Court found that the dissolution decree 

distributed Greenlee's interest in the partnership by awarding 

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50 percent to Greenlee and 50 percent to Waite. However, for the 

following reasons, the District Court found that Waite was not 

currently entitled to a share of the partnership distributions: 

(1) the dissolution decree provided for Waite to 

receive her interest only upon sale of the Rose Park 

Professional Center; 

(2) Waite benefits from the partnership retaining 

all but $1,000 of partnership distributions in order to 

reduce the debt owed on the Rose Park Professional 

Center; 

(3) the distribution represented a return of 

Greenlee's own contribution to the partnership, rather 

than income from an independent source, and; 

(4) the dissolution decree made it clear that 

Waite's interest in the partnership represents 50% of the 

expenses Greenlee paid to maintain his interest in the 

partnership. 

The District Court concluded that Greenlee should pay $400 per 

month in child support from December 1993 through June 1994, and 

$473 per month until Ryan reached the age of 19 or graduated from 

high school, whichever occurred first. The court also concluded 

that Waite was not entitled to any part of the distributions 

Greenlee had received from the partnership since dissolution of the 

parties' marriage in October 1990 

ISSUE 1 

Did the District Court err when, for purposes of calculating 

child support, it did not consider Greenlee's passive income? 

We have previously held that when reviewing modification of 

child custody we will review the district court's findings of fact 

to determine whether they are clearly erroneous. We will review 

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the district court's decision based on those findings of fact to 

determine whether the district court abused its discretion. In re 

Marriage ofElser (Mont. 1995) , 895 P.2d 619, 622, 52 St. Rep. 434, 436. 

We conclude that the same standard of review is appropriate when 

considering a district court's award of child support. 

Waite contends that the District Court incorrectly applied the 

Uniform Child Support Guidelines or, in the alternative, 

misapprehended the effect of the evidence concerning Greenlee's 

income from the partnership, and therefore, awarded insufficient 

child support. She claims that the correct application of the 

guidelines in this case required that the District Court designate 

any rent paid by Greenlee over the amount necessary to cover 

necessary partnership expenses as income. Instead, the District 

Court designated only $1,000 of the money annually returned to 

Greenlee as income for purposes of determining child support. 

Waite points to the definition of "gross income" in the 

guidelines: 

"[Glross income" for those who are self-employed, or who 

receive profits from a business enterprise such as . . 

a partnership . . . includes gross receipts minus 

ordinary and necessary expenses for . business 

operation. 

Rule 46.30.1508(c), ARM. Waite asserts that this definition, along 

with 5 40-4-204(l) and (2), MCA, requires that we reverse the 

District Court's child support order. 

Waite contends that because Greenlee elected, as a member of 

the partnership, to apply partnership profits to payment of the 

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mortgage on the Center, he cannot now claim that this income is 

unavailable to him to pay child support. She analogizes Greenlee's 

partnership decision to apply part of his income toward payment of 

the partnership mortgage to a "choice" to otherwise voluntarily 

invest his money. However, the analogy is not valid. The 

partnership's decision to apply its profits toward payment of the 

mortgage on the Center limited the extent to which Greenlee can 

"choose" to "invest" his portion of the partnership profits. 

Specifically, Greenlee can choose to invest only $1,000 of the 

partnership profits or, in other words, that portion that he 

actually receives. 

Greenlee realizes only $1,000 of the rental income returned to 

the partners, which the court correctly identified as income for 

child support purposes. Moreover, Greenlee pays taxes on the full 

$7,692, even though he receives only $1,000. 

Greenlee correctly asserts that the cases upon which Waite 

relies do not apply here because they all relate to parents who 

have chosen to earn less than they were capable of earning, while 

there is no indication in the record that Greenlee has a choice in 

this matter. 

Based on our review of the record we agree and conclude that 

the District Court's findings are not clearly erroneous, and when 

it applied those findings to its calculation of child support, the 

District Court did not abuse its discretion. We affirm the 

District Court's child support award. 

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ISSUE 2 

Did the District Court err when it failed to award Waite a 

share of Greenlee's passive partnership income? 

We review the District Court's conclusions of law in relation 

to the division of marital property to determine whether the 

district court correctly interpreted the law. In re Marriage of Rock 

(1993), 257 Mont. 476, 480, 850 P.2d 296, 298 (citing Schaubv. VitaRich 

Dairy (1989), 236 Mont. 389, 391, 770 P.2d 522, 523). 

Waite contends that the District Court's failure to award her 

a share of Greenlee's partnership distribution "stood on its head" 

the language in the prior decree which apportioned and distributed 

the partnership interest. 

In the decree of dissolution, the District Court divided the 

interest in the Center "50/50 between the parties." The court 

found that it could not give a specific market value for the 

Center, so instead, "equitably" divided it '150/50" between Waite 

and Greenlee. The court stated that Waite and Greenlee "will 

assume the risks involved with this investment, will receive the 

benefit of any tax consequences, any income or equity upon sale ofthis 

property in the future T’ 

Waite emphasizes that the decree of dissolution states 

specifically that both she and Greenlee are to receive the benefit 

of "any income" from the partnership. 

Waite contends that the District Court's ruling that she will 

not receive income from Greenlee's share of the partnership until 

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sale of the partnership is "utterly not true and not supported in 

the record." She initially asserts that the decree of dissolution 

specifically states that she will receive half of any income 

Greenlee generates from the partnership, and that the District 

Court's failure to award her 50 percent of this income alters the 

dissolution decree. Furthermore, Waite asserts that it defies 

"both rules of grammar and logic" to hold to the contrary. 

Greenlee responds that the dissolution decree states plainly 

that income will not be shared until the time of sale of the 

partnership interest. We agree with this interpretation of the 

District Court's decree. 

The District Court's dissolution clearly provided that Waite 

and Greenlee "will receive the benefit of . . any income . 

upon sale of" the Center "in the future." The partnership has not 

sold the Center, and Greenlee has not sold his interest in the 

partnership. We conclude that the District Court was correct when 

it held that Waite was not entitled to a share of Greenlee's annual 

partnership distribution until sale of his partnership interest. 

For these reasons, we affirm the order of the District Court. 

Pursuant to Section I, Paragraph 3 (cl, Montana Supreme Court 

1995 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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