No. 93-319 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

IN RE THE PATERNITY, CUSTODY AND 

SUPPORT OF THE UNBORN CHILDREN OF: 

CHERI ELLEN PEDERSEN, 

Petitioner and Respondent, 

and 

JAYME DEANE NORDAHL, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Douglas G. Harkin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Clinton H. Kammerer; Kammerer Law Offices, 

Missoula, Montana 

For Respondent: 

Terry G. Sehestedt, Attorney at Law, Missoula 

Montana 

& 

! N O\i - 2 '1993 Submitted on Briefs: September 23, 1993 

g. : Decided: November 2, 1993 
Justice Karla M. Gray delivered the Opinion of the Court. 

Cheri Ellen Pedersen (Cheri) filed a petition in the Fourth 

Judicial District Court, Missoula County, claiming that Jayme Deane 

Nordahl (Jayme) was the father of her yet unborn twin girls and 

requesting the court to determine paternity, custody, and child 

support. Jayme initially denied Cheri's claim but later admitted 

that he was the father of the children after blood tests showed a 

99.99% probability of paternity. He asserts error in the District 

Court's calculation of child support and requests our review of its 

contempt ruling against him. 

A hearing on Cheri's petition was held on March 4, 1993. 

During the course of the hearing, the District Court determined 

that a portion of Jayme's testimony was inconsistent with his 

response to a request for admission during discovery, held Jayme in 

contempt, and levied a $500 fine. The court issued findings of 

fact, conclusions of law, and judgment on April 13, 1993. It 

determined that Jayme was the father of the twins, awarded joint 

custody, and ordered Jayme to pay $1,248 per month in child 

support. 

We affirm the District Court's calculation of child support 

and its contempt ruling. 

Did the District Court err in calculating child support? 

The District Court determined Jayme's total gross income by 
adding the average of his 1991 and 1992 income, the average 

depreciation expenses that Jayme had deducted in those years, and 

the annual income attributable to his non-performing assets. After 

subtracting the average of his 1991 and 1992 federal and state 

income tax and social security deductions, the court calculated 

Jayme's primary child support obligation. It then increased his 

child support obligation by adding his pro-rata share of the cost 

of child care and health insurance. 

The District Court used the child support guidelines 

promulgated by the Department of Social and Rehabilitative Services 

pursuant to 5 40-5-209(5), MCA, in conjunction with the factors set 

forth in 5 40-4-204, MCA, to determine child support. Under such 

circumstances, a presumption exists in favor of a district court's 

calculation of child support; we will not reverse it absent an 

abuse of discretion. In re Marriage of Sacry (1992), 253 Mont. 

378, 382, 833 P.2d 1035, 1038. 

Jayme challenges the District Court's treatment of total gross 

income, allowable deductions, and child care costs in its 

calculation of child support. He first contends that the District 

Court erred by averaging his 1991 and 1992 income and deductions, 

arguing that 59 46.30.1508 and 46.30.1516, ARM, do not expressly 

authorize averaging. 

This contention is inconsistent with Jayme's posture at the 

hearing. There, he did not object when Cheri introduced copies of 

his 1991 and 1992 income tax returns into evidence. Jayme also 

introduced exhibits which contained an averaging of his total and 
adjusted gross incomes earned over a period of years. We will not 

put a district court in error for a ruling or procedure in which 

the appellant acquiesced, participated, or to which the appellant 

made no objection. In re Marriage of Smith (1990), 242 Mont. 495, 

501, 791 P.2d 1373, 1377. Furthermore, 5 46.30.1515(3), ARM, 

expressly allows fluctuating income to be annualized by averaging 

it over a period sufficient to accurately reflect earning ability. 

Jayme also assertsthat the deduction of depreciation expenses 

is economically necessary in his logging operation. On that basis, 

he contends that 5 46.30.1508 (1) (c) , ARM, requires the District 

Court to deduct the depreciation expenses from gross income. 

Non-cash deductions such as depreciation expenses are not 

generally subtracted from gross receipts in determining gross 

income. Section 46.30.1508 (1) (c) , ARM. Although 5 46.30.1508 

(l)(c), ARM, allows depreciation for vehicles, machinery and other 

tangible assets to be deducted upon a showing of economic 

necessity, the rule does not rewire a district court to do so. 

Jayme establishes no abuse of discretion in the District Court's 

treatment of the depreciation expenses. 

Jayme also contends that the District Court ignored his 

testimony regarding the fluctuating balances in his logging 

business and personal bank accounts by usingtheir current balances 

to calculate "income attributed to assets." The totality of 

Jayme's testimony relating to the logging business and personal 

accounts consisted of statements divulging their then-present 

balances ($4,000 and $5,000, respectively) and the balance in his 
logging business account in December of 1992 ($17,805) . This 

testimony provides a proper basis for the use of the accounts1 

then-current balances to calculate income attributed to assets. 

Jayme also argues that the funds in his logging account, 

personal bank account, Trans America account, individual retirement 

account and KEOUGH account were derived solely from his 1992 income 

and, therefore, that the inclusion of these accounts in the "income 

attributed to assets1' calculation resulted in a double counting of 

income. We disagree. Income attributed to assets is the amount of 

interest which would be earned if the non-performing assets were 

liquidated and the proceeds invested. Section 46.30.1514 (1) , ARM. 

The District Court determined the amount of interest pursuant to 

5 46.30.1514(2), ARM, and added that amount to Jayme's gross 

income. Thus, no double counting of his 1992 income occurred. 

Finally, Jayme argues that the court's valuation of child care 

costs was speculative and that he is funding Cherils education by 

paying his pro-rata share of the child care costs. These 

arguments are without merit. 

The District Court properly valued the child care costs 

pursuant to 5 46.30.1525 (1) (a) (i) , ARM. That rule provides that 

child care costs may be based on estimates of the average monthly 

costs of such service where receipted expenses are not available. 

Here, receipted expenses were not available because the twins had 

not previously been enrolled in full-time child care. Cheri 

testified, however, that she had surveyed child care centers and 

that the cost of day-care for two children the twins' age would 
range from approximately $640 to $756 per month. This evidence 

supports the District Court's valuation of child care costs at $676 

per month. 

Finally, nothing in the findings of fact, conclusions of law 

and judgment supports Jayme's argument that he was ordered to pay 

child care costs to enable Cheri to return to school. The court 

found that Cheri was reasonably capable of earning $10,400 per year 

if she returned to full-time work as a cosmetologist and pro-rated 

the cost of necessary child care between Jayme and Cheri on that 

basis. 

We hold that the District Court did not abuse its discretion 

in calculating child support. 

Did the District Court properly hold Jape in contempt? 

Contempt orders are final and, as a general rule, unreviewable 

by this Court except by writ of certiorari. Section 3-1-523, MCA. 

We have created an exception in family law cases, however, and we 

will review a contempt order on appeal in such a case. Our review 

is limited to examining the record to determine whether the 

district court acted within its jurisdiction and whether evidence 

supports the finding of the court with respect to the purported 

contempt. In re Marriage of Prescott (Mont. 1993), 856 P.2d 229, 

231, 50 St.Rep. 801, 802. We agree with Jayme that the basis for 

the exception developed for family law cases is equally applicable 

to cases involving paternity, child custody and child support and, 

therefore, review the District Court's contempt ruling against him. 
At the March 4, 1993 hearing, the District Court found that 

Jayme's testimony was inconsistent with his response to a request 

for admission during discovery. On that basis, the court held 

Jayme in contempt "for a false answer." 

Evidence supports the District Court's finding of an 

inconsistency in Jayme's statements and the corresponding falsity 

of one of those statements. Cheri's counsel asked Jayme whether he 

knew of any other person who had sexual intercourse with Cheri 

during the period of the twins1 conception. This question mirrored 

Cheri's earlier Request for Admission No. 5. Jayme testified, 

consistent with his response during discovery, that he did not know 

of any other person who had sexual intercourse with Cheri during 

that time. 

The District Court subsequently asked Jayme to state one fact 

that would lead him to believe he was not the father of the twins. 

Jayme testified that a specific friend, whom he named, had sexual 

intercourse with Cheri during the period of conception. This 

answer directly contradicts both his earlier testimony and his 

discovery response. Because Jayme's statements cannot be 

reconciled, the District Court properly found that one of them was 

false. 

Deceit committed by a party constitutes contempt of the 

court's authority. Section 3-1-501(d), MCA. Thus, Jayme ' s 

falsehood provides a sufficient legal basis for the District Court 

to hold him in contempt. We conclude that no error occurred in the 

District Court's contempt ruling. 
. 

Chief Justice //