No. 89-330 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

IN RE THE MARRIAGE OF JULIE R. GRAVELEY, 

Petitioner and Respondent, 

-vCHARLES A. GRAVELEY, 

Respondent and Appellant. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Thomas A. Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

J.C. Weingartner, Helena, Montana 

For Respondent: 

Robert J. Sewell, Jr.; Smith Law Firm; Helena, 

Montana 

Filed: 

Submitted on Briefs: June 20, 1990 

~ecided: August 20, 1990 
Justice Fred J. Weber delivered the Opinion of the Court. 

Charles A. Graveley (Charles) appeals from the valuation of 

child support awarded against him in the District Court of the 

First Judicial District, Lewis and Clark County. We affirm. 

We restate the issues before us as follows: 

1. Whether the District Court's award of child support was 

in error? 

2. Whether the District Court's order of child custody was 

in error? 

Charles and Julie Graveley were married on February 18, 1984. 

They had one child, Morgan, born on October 1, 1984. On October 

30, 1986, Julie filed an action for dissolution of the marriage. 

The dissolution was granted on January 3, 1989. 

Charles is a self -employed lawyer/farmer. He has been 

practicing law for more than 15 years. He testified he devotes 

approximately equal time to each occupation. The record reveals 

that on various loan applications, Charles reported incomes of 

$54,800 per year in 1982, $56,580 per year in 1983; and $42,000 per 

year in September, 1986. Charles paid $500 per month in temporary 

child support prior to the entry of the final decree. Charles 

testified that his income over the last year was $3,139, and also 

testified that the divorce had resulted in a reduced ability on his 

part to work productively, and a consequent reduction in income. 

Julie worked as a secretary and was a licensed real estate 

agent. The District Court found that Julie had assets of $22,980 

and a net monthly income exclusive of child support of $997.08. 

2 
Child care costs are $240 per month. 

The District Court concludedthat Charles1 testimony of annual 

income of $3,139 was unbelievable. In its supplemental decree the 

District Court ordered Charles to pay child support of $500, and 

also ordered each party to pay child care costs of $120. Such 

payments are to continue until the child attains the age of 18 

years. Charles appeals that decision. 

I 

Whether the District Court's award of child support was in 

error? 

Charles maintains that the District Court erred in its 

assignment of income to Charles resulting in an inequitable award 

of child support. He argues that the District Court failed to 

follow the Child Support Guidelines relative to Julie's income. 

He further argues that the lower court erred in awarding child care 

costs until the child is 18 years old. He maintains that once the 

child begins school, the cost of child care will cease and he 

should not have to continue to pay such costs. 

Julie maintains that 5 40-4-204, MCA, provides the District 

Court with the discretion to determine a parent's true disposable 

income, and is not bound by income tax returns. She urges that it 

is disposable income and not income tax returns alone which must 

be considered by a court in determining child support. We agree. 

The Child Support Guidelines (1987), 44 St.Rep. 828-842, are 

a form of suggestive procedure which is to be applied by the 

District Court in the use of its discretion. Absent a clear abuse 
of discretion, the District Court will not be overruled. See Gray 

v. Gray (1990), 788 P.2d 909, 47 St.Rep. 552. A presumption exists 

in favor of the judgment, and the lower court will be reversed only 

if appellant demonstrates that there was a clear abuse of 

discretion. In re Marriage of Johnson (1987), 225 Mont. 404, 732 

In Gray, we held that when determining income under the 

Guidelines, it is disposable income of the parent, and not income 

tax returns alone, which must be considered by the Court. We 

conclude that the District Court did not abuse its discretion. In 

reviewing Charles' income, it made the following pertinent 

findings : 

7. [Charles] contends that only $74,425.00 of his 

$554,542.00 in assets as reported on an [sic] March 1988 

financial statement furnished in the fall of 1988, must 

be recognized under the Support Guidelines adopted by 

the Supreme Court. [Charles] has reported to local 

financial institutions total assets of $559,135.00 in 

September of 1987, $609,197.75 in December 1986, and 

$906,635.00 in October 1985. [Charles] claims his 

finances have deteriorated due to the impending 

dissolution of his marriage. 

8. . . . [Charles] represents his income over the last 

year to be $3,139.00. The court is hard pressed to 

believe this figure. [Charles] is a bright, capable 

attorney and he can earn a substantial living. 

The record before us supports the findings and conclusions of the 

District Court. Furthermore, the ~istrict Court made it very clear 

in its supplemental decree regarding child custody and support that 

Charles shall pay $500 per month for child support and $120 per 

month for child care costs until Morgan is 18 years old. 

substantial evidence supports day care costs $240 per month. The 
District Court ordered each parent to pay half of that amount, or 

$120 per month. We hold that the District Court's award of child 

support was proper. 

I1 

Whether the District Courtts order of child custody was in 

error? 

After making specific findings that Morgan was in good health, 

well adjusted to her lifestyle, and too young to express an opinion 

as to her custodial arrangements, the District Court awarded the 

parties joint custody of Morgan. Charles was awarded custody on 

alternating weekends from 6:00 p.m. on Friday until 6:00 p.m. on 

Sunday, plus an additional sixty (60) days during the year at such 

times and for such period as the parties shall agree. 

Charles maintains that the order tltotally eliminated any 

contact between the father and the child on any holidaystt. He 

contends that equity dictates that he be allowed contact at fixed 

times during nationally recognized holidays on an alternating basis 

with Julie. 

Julie points out that Charles exercised visitation with Morgan 

only on 35 days out of the 52 days to which he was entitled during 

the year preceding the hearing. She maintains that the parties 

have handled the alternation of custody in an amicable manner. 

Julie provided the District Court with a visitation schedule 

for 1988, detailing the date and time Julie left with Charles and 

the date and time he brought her back. It reveals that Charles 

had Julie with him on Christmas in 1988. 
Section 40-4-212, MCA, provides that a district court shall 

consider the best interests of the child in determining child 

custody. Section 40-4-217, MCA, provides that visitation shall be 

reasonable. Substantial evidence in the record supports the award 

of custody by the District Court. The record fails to demonstrate 

any requirement for change. We conclude there has been no abuse 

of discretion. We hold that the order of child custody was proper. 

Af f irmed. 

We Copcur: