### NO. 95-151 INTHESUPREME

COURTOFTHESTATEOFMONTANA 1995

INRETHEMARRIAGEOF SHARONGAYLEWAITE, f/k/a SharonGayle Greenlee,

Petitioner andAppellant, SEP0819% and ROGERWAYNE

GREENLEE, Respondent andRespondent.

APPEALFROM: District Court oftheThirteenth Judicial District,

Inandfor the County of Yellowstone, TheHonorable Russell K.Fillner, Judgepresiding.

COUNSELOFRECORD:

ForAppellant: Kevin T.Sweeney, Sweeney&Healow, Billings, Montana ForRespondent: Robert J. Wailer, Wailer &Womack, Billings, Montana

Filed: Submitted onBriefs: July 13, 1995 Decided: September 8, 1995Justice Terry N. Trieweiler delivered the opinion of the Court.

Theappellant, Sharon Gayle Waite, filed arenewed motion for modification of decree of dissolution, amotion to determine dollar value of judgment, and amotion to determine judgment, in the District Court for the Thirteenth Judicial District in Yellowstone County in which sheasked the District Court to change residential custody of the parties' minor son, modify the child support language found in the dissolution decree, anddetermine the amount the respondent, Roger Greenlee, owed her pursuant to the dissolution decree. TheDistrict 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. Weaffirm 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

ashare of Greenlee's passive partnership income? FACTUALBACKGROUND Sharon Gayle Waite and Roger Wayne Greenlee are in what appears to bethe final round of atwelve-round boxing match. By all accounts, Waite and Greenlee have still not removed their

2gloves, tattered as they maybe, and instead, continue throwing

powerful head and body shots in anobvious attempt to reduce one another to vegetable matter. What follows is our attempt to referee the final round. SeeInreMarriage ofGreenlee (1991), 249Mont

. 521, 816 P.2d 1073. Greenlee is adentist, and during the marriage entered into the Rose Park Professional Center Partnership with four other dentists. As aresult, hebecame aone-fifth owner of the Rose Park Professional Center. Thesole purpose of the Partnership is to "own, manage andmaintain the Center, the building in which the partners maintain their offices." Thepartnership generates income bycharging the partners andtwonon-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 onthe mortgage in aneffort to retire the debt owed for the Center at anearly date. On October 16, 1990, the District Court dissolved this couple's marriage, ordered joint custody, anddesignated 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, andit 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 hadanet income in 1993of $38,412, that hehad interest income in 1993 of $733, andthat hehadatotal distribution from the partnership in 1993of $7,692, only $1,000 of which heactually received. The remaining $6,692 wasclassified by the partnership accountant as "passive income," onwhich Greenlee was taxed. The District Court found that the funds distributed to Greenlee by the partnership represent areturn of Greenlee's own contribution tothe partnership madeduring the course of the year. In other words, Greenlee, through payment of rent, insured that at the end of each year, he would receive adistribution from the partnership, all but $1,000 of which the partnership would retain in order to more quickly pay off the mortgage onthe Center. The District Court found that "it is not fair or reasonable to include the passive income portion of this distribution asincome 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

450percent to Greenlee and 50percent to Waite. However, for the

following reasons, the District Court found that Waite was not currently entitled to ashare 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 owncontribution 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. TheDistrict Court concluded that Greenlee should pay $400per month in child support from December 1993 through June 1994, and $473 per month until Ryan reached the ageof 19or graduated from high school, whichever occurred first. The court also concluded that Waite was not entitled to any part of the distributions Greenlee hadreceived from 

### thepartnership 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? Wehave previously held that when reviewing modification of child custody wewill review the district court's findings of fact to determine whether they are clearly erroneous. Wewill review

5the district court's decision based onthose findings of fact to

determine whether the district court abused its discretion. Inre Marriage ofElser (Mont. 1995),895P.2d 619, 622, 52St. Rep. 434, 436. Weconclude that the same standard of review is appropriate when considering adistrict 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 whoare self-employed, orwho receive profits from abusiness 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 540-4-204(l) and (2), MCA, requires that we reverse the District Court's child support order. Waite contends that because Greenlee elected, asamember of the partnership, to apply partnership profits to payment of the

6mortgage on the Center, he cannot nowclaim that this income is

unavailable tohim topay child support. Sheanalogizes 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 onthe 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 noindication in the record that Greenlee has achoice in this matter. Based onour review of the record weagree andconclude 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.

7ISSUE 2

Did the District Court err when it failed to award Waite a share of Greenlee's passive partnership income? Wereview 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. InreMarriageofRock (1993), 257Mont. 476, 480, 850P.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

ashare of Greenlee's partnership distribution "stood onits head" the language in the prior decree which apportioned anddistributed 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 uponsaleofthis propertyinthefuture T’ Waite emphasizes that the decree of dissolution states specifically that both sheandGreenlee are to receive the benefit of "any income" from the partnership. Waite contends that the District Court's ruling that shewill not receive income from Greenlee's share of the partnership until 8sale of the partnership is "utterly not true andnot supported in

the record." Sheinitially 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 50percent 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. Weagree 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." Thepartnership has not sold the Center, and Greenlee has not sold his interest in the partnership. Weconclude that the District Court wascorrect when it held that Waite wasnot entitled to ashare of Greenlee's annual partnership distribution until sale of his partnership interest. For these reasons, weaffirm the order of the District Court. Pursuant to Section I, Paragraph 3(cl, Montana Supreme Court 1995 Internal Operating Rules, this decision shall not becited as precedent andshall bepublished byits filing asapublic document with the Clerk of the Supreme Court andbyareport of its result to Montana LawWeek, State Reporter andWest Publishing Company.We concur:

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