No. 93-379 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

In Re the Marriage of, 

CATHERINE ANN HUNT, 

Petitioner and Respondent, 

and 

DELBERT ORTON HUNT, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable G. Todd Baugh, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

V. Joe Leckie, Billings, Montana 

For Respondent: 

Kevin T. Sweeney, Sweeney & Healow, Billings, 

Montana 

Filed: 

Submitted on Briefs: December 16, 1993 

Decided: March 17, 1994 

i 

Clerk 
Justice Fred J. Weber delivered the Opinion of the Court. 

Delbert Orton Hunt appeals the decision of the District court 

of the Thirteenth Judicial District, Yellowstone County, in a 

proceeding initiated by him to reduce child support. Mr. Hunt also 

appeals the court's decision in petitioner Catherine Ann Hunt's 

cross-motion which placed conditions on his visitation privileges. 

We affirm in part, reverse in part and remand to the District Court 

for a redetermination of child support. 

Mr. Hunt presents the following issues on appeal: 

I. Can the joint custodial rights of one parent be made 

inferior to children's outside activities when the commitment to 

such activities was the sole decision of the other joint custodian? 

11. Did the District Court abuse its discretion in 

unilaterally placing conditions upon one joint custodian without 

imposing those conditions upon both joint custodians? 

111. Did the District Court err in computing the proper child 

support amount of the appellant? 

IV. Did the District Court abuse its discretion in ordering 

the appellant to sign a wage assignment in the amount of $500.00 

per month over and above all amounts collected by the Child Support 

Enforcement Division for unpaid back child support and current 

child support? 

This case is a particularly disturbing example of the 

husband's efforts to evade his duties and responsibilities as a 

parent concerning the support of his children subsequent to a 

dissolution of marriage. The marriage of Catherine Ann Hunt and 

2 
Delbert Orton Hunt was dissolved on April 26, 1991, in Yellowstone 

County, Montana. At the time of the dissolution, the District 

Court ordered Mr. Hunt to pay $800 per month for the support of the 

parties' two minor children. Mrs. Hunt testified that after the 

dissolution, Mr. Hunt told her she would never see a penny of child 

support from him. 

Indeed, since that time, Mr. Hunt has seemed to go out of his 

way to avoid paying any child support to Mrs. Hunt voluntarily. 

The only child support Mrs. Hunt has received has been seized 

involuntarily from Mr. Hunt. Mr. Hunt has not cooperated in the 

least in this respect and has been held in contempt of court for 

failing to pay child support. The District Court stated in its 

findings and conclusions as follows: 

8. It is unarguably clear to the Court that Delbert 

Hunt refuses to pay child support and will go to some 

effort to evade his support obligation. Delbert Hunt is 

in contempt of court. His employer may be assisting him 

in support avoidance. Delbert Hunt comes to the Court 

arguing that this child support should be reduced, but 

since the time of termination of garnishment of support 

with the end of his summer job, he has paid no sums 

whatsoever to his former wife for the care of his 

children. Delbert Hunt has the ability to pay child 

support but simply refuses to pay. 

Mrs. Hunt received $4,427.48 for child support then owing when 

Mr. Hunt sold real property in Billings in July of 1991. Through 

seizure of 1992 wages, Mrs. Hunt received $3,641.40. With the 

additional amount of Mr. Hunt's share of unpaid medical expenses 

for the children of $469.55, Mr. Hunt owed a total of $10,014.15 to 

Mrs. Hunt as of December 23, 1992, the time of trial on his 

petition for modification of child support 
A witness from the Child Support Enforcement Division of the 

Montana Department of Social & Rehabilitation Services testified 

that it was reported to that agency that Delbert Hunt was going by 

or using the pseudonym of "Delmar Hunt" in Oregon and bragging 

about not having to pay child support. That agency has had a 

difficult time in its collection efforts in attempting to extract 

support money from Mr. Hunt. 

In his petition for modification of child support, Mr. Hunt 

requested that his support payments be reduced to $396--$I98 per 

child per month. After recalculating the amount of support 

according to the child support guidelines, the District Court 

reduced the monthly obligation from $800 to $741--$370.50 per 

child. In making this calculation, the court imputed income to Mr. 

Hunt of $5,000, concluding that Mr. Hunt was voluntarily unemployed 

during seven months of the year when he was not working as an 

aerial fire fighter pilot in Oregon from May to October. The court 

also considered per diem payments of $6,120 annually which Mr. Hunt 

was paid and which defrayed his costs of self support. 

Mr. Hunt also receives a bonus at the end of the fire fighting 

season from his employer. This bonus has not been available for 

garnishment as his employer has financed a pickup truck for him and 

takes an annual payment out of the end-of-season bonus. 

Mr. Hunt's winter unemployment has been a factor since the 

parties' dissolution of marriage; prior to that time Mr. Hunt 

worked during the winter months as a pilot and his annual income 

was considerably higher than it has been since the time of the 
dissolution. While Mr. Hunt has contended that there is no 

employment for him in his field during the winter, the court was 

not convinced that he could not earn income during that period. 

In addition to modifying the amount of support, the District 

Court ordered that Mr. Hunt sign a wage assignment in the amount of 

$500 per month over and above all amounts collected by the Child 

Support Enforcement Division for unpaid back child support. 

In response to Mr. Hunt's petition for modification of child 

support, Mrs. Hunt filed a cross-motion to clarify the parties' 

joint custody plan and "re-tool" it due to Mr. Hunt's refusal to 

communicate with her, particularly when he is exercising his 

weekend visitation privileges. Mr. Hunt had refused to let her 

know where he would take the children during those weekends and has 

insisted that all communications regarding the children be 

conducted through third persons--specifically, his mother or his 

attorney. 

The District Court ordered that Mr. Hunt give Mrs. Hunt 48 

hours advance notice for each visitation period; that he provide 

her with his home address and telephone number; that he provide her 

with an itinerary of each visitation, including the address and 

telephone number of the place where each visit is to occur; and 

that he provide Mrs. Hunt with a time for commencement and 

conclusion of each visit. The court also ordered that priority be 

given in scheduling visits to the children's outside activities. 

Also in response to Mrs. Hunt's cross-motion, the court 

awarded the 1992 tax exemption for both children to Mrs. Hunt. The 
court further ordered that Mr. Hunt is not entitled to the 

exemption for the parties1 son as provided by the decree of 

dissolution unless he is current in paying his child support. 

Issues I & 11: Modifications to Visitation 

Appellant's first two issues both deal with limitations placed 

on Mr. Hunt's exercise of his visitation privileges; Issue I 

involves the courtls prioritizing the children's prescheduled 

activities during the visitation periods. Specifically as to this 

issue, the District Court addressed whether the husband could 

unilaterally change the son's plans for weekends when the son was 

scheduled to participate in organized team sports. 

Issue I1 involves the court's ordering Mr. Hunt to inform Mrs. 

Hunt of his itinerary and whereabouts during the time he exercises 

visitation with the children. As both Issues I and I1 relate to 

the ability of the District Court to place restrictions and 

conditions on visitation, we consider them together. The question 

common to them both is whether the limitations were justified here. 

Visitation is an inherent part of child custody, in which the 

district courts have broad powers to determine all problems 

concerning custody and visitation. Kanvick v. Reilly (1988), 233 

Mont. 324, 329, 760 P.2d 743, 747. The standard of review for 

custody and visitation is whether substantial credible evidence 

supports the district court's judgment. In re the Marriage of Nash 

(1992), 254 Mont. 231, 234, 836 P.2d 598, 600. We will overturn a 

court's custody or visitation decision only when the court's 

findings and conclusions clearly demonstrate an abuse of 
discretion. In re the Marriage of Anderson (1993), 260 Mont. 246, 

252, 859 P.2d 451, 454. Thus, the issue before us in this case is 

whether the court abused its discretion by placing limitations and 

conditions on the exercise of Mr. Hunt's visitation. See In re the 

Marriage of Wackler (1993), 258 Mont. 12, 16, 850 P.2d 963, 966. 

The circumstances behind these two issues are as follows: The 

parties share joint custody of their two children. Mrs. Hunt has 

primary physical custody of the children and Mr. Hunt enjoys 

liberal visitation. Mr. Hunt has insisted upon keeping the details 

of his place of residence, telephone number, and other pertinent 

information a secret from Mrs. Hunt. He has not allowed Mrs. Hunt 

to contact him directly regarding visitation or other matters 

involving the children and has forced her to contact third parties 

whenever she has a need to communicate with him for any reason. 

During the times Mr. Hunt exercises visitation, he has refused to 

permit Mrs. Hunt to know the whereabouts of the children. 

~uring the approximate five-month period from June through 

October when he is employed, Mr. Hunt does not exercise visitation 

frequently because of the nature of his job as a pilot; however, 

during the remaining months of the year, he generally has the 

children with him on alternating weekends. This has caused 

problems for Mrs. Hunt because Mr. Hunt will not inform her where 

he will be during these times and often takes the children out of 

Billings where they reside with Mrs. Hunt. The record further 

reveals a litany of communication problems relating to visitation, 

the activities of the children and the transferring of the children 
to and from Mr. Hunt for weekend visitation. 

Mr. Hunt objects to the court's prioritizing of team athletic 

activities which the parties1 11-year-old son is involved in. 

Particularly, Mr. Hunt had protested his son's involvement in an 

organized hockey program in Billings which Mrs. Hunt had arranged 

and which sometimes required the son to be present for Saturday 

hockey games. Mr. Hunt also protested the son's attendance at 

Friday afternoon baseball practices. 

Mr. Hunt particularly objected to Mrs. Hunt's ability to 

structure these activities unilaterally, knowing that the 

commitments to these team sports could interfere with his 

visitation periods. He argues that the time he spends with his 

children should "take on the nature of 'sacred' time" and that he 

should not have to abrogate his custodial rights to fulfill 

commitments made by Mrs. Hunt. He contends that he cannot be 

forced to take on a role as the children's baby-sitter and 

chauffeur for commitments Mrs. Hunt has made for the children. 

He asks this Court to "enforce his right to be involved in the 

children's outside activities" especially during his time of 

visitation, which he refers to as his llcustodial time." He claims 

this is "the only way in which he is able to protect his ability to 

have frequent and continuing contact with his children and share in 

the rights and responsibilities of child raising." 

Mr. Hunt's second issue relates to the District Court imposing 

conditions upon him without imposing the same conditions upon Mrs. 

Hunt. We note that there is no evidence in the record that this 
has been a problem for Mr. Hunt. To the contrary, Mr. Hunt knows 

where Mrs. Hunt resides with the children, he knows the telephone 

number there and, in fact, often speaks with the children over the 

telephone. There is additional evidence in the record that Mrs. 

Hunt has advised Mr. Hunt in the past through third parties when 

she has taken the children away from Billings. 

Mr. Hunt contends that the above-described restrictions 

imposed on him by the District Court concerning his exercise of 

visitation constitute a modification of custody and, thus, the 

District Court abused its discretion by modifying custody without 

making specific findings of fact that such modification was in the 

best interests of the children. We disagree. 

The District Court here was faced with a visitation problem 

compounded by the parties' inability or refusal to communicate with 

each other about their children and what is best for them. Mrs. 

Hunt asked the court to specify visitation conditions; she did not 

ask for a change in visitation. The District Court has the power 

to clarify visitation rights and to specify times for a parent's 

exercise of visitation and the mode of arranging for visitation. 

section 40-4-217(3), MCA, allows the District Court to modify an 

order granting or denying visitation "whenever modification would 

serve the best interest of the child . . . II See, e.s., Baker v. 

Baker (1982), 198 Mont. 371, 646 P.2d 522. 

More recently, in In re the ~arriage of Kovash (1993), 260 

Mont. 44, 52, 858 P.2d 351, 356, we affirmed a district court's 

decision which conditioned future visitation upon the father's 
behavior toward his children in the exercise of his visitation. In 

Wackler, 850 P.2d at 966, the district court modified the 

visitation schedule, stating that: 

Section 40-4-217 (3) , MCA, grants the district court 

authority to modify an order granting or denying 

visitation "whenever modification would serve the best 

interest of the child . . . ." In this instance, Rebecca 

was not prejudiced by the lack of notice because the 

District Court only clarified visitation rights as a 

result of some apparent confusion relating to the 

previous visitation schedule. Rebecca's counsel was able 

to discuss these matters and properly raise Rebecca's 

concerns as to Thomas' request to extend visitation 

rights, which was denied. We hold that the District 

Court did not err in its clarification of Thomas' 

visitation rights. 

The present case is directly comparable to Wackler. There is 

ample evidence in the record to support the court's findings that 

the best interests of the children are served by communication 

between the mother and father regarding the father's itinerary for 

his weekend visitation, advance notice of 48 hours prior to 

scheduling visitation and giving priority in scheduling visits to 

the children's outside activities. 

During the hearing on the parties' motions for modification of 

the original decree, the court stated as follows: 

[THE COURT] Now visitation. I am not exactly sure 

what has been requested there. The way you all are going 

about it is all wrong. I know it takes two to 

communicate but I know also that one person can sabotage 

the whole thing. I had only heard the two of you testify 

here today, but judging from that, Mr. Hunt, I would have 

to say that you are probably more at fault there for the 

lack of communication than Mrs. Hunt . . . 

If I were going to give you some suggestions, I 

would say you got to learn how to communicate. You got to 

get that chip off your shoulder, you got to get over 

being mad. Quit spending money on an attorney, good as 

he may be in these kinds of proceedings, what you need is 
someone to give you some counseling in how to be able to 

communicate with an ex-spouse. 

The simple matter of it is, is that you either learn 

that or you run a real big risk of messing up these two 

kids. The rate you are going, these kids will be lucky 

if they come out of this without some serious emotional 

scars. . . . If you don't do it, the kids are the ones 

that suffer. 

. . . I do know if they are involved in your fighting 

that that's not good for them. 

You cannot put these kids in the middle. They will 

tell each of you separately what they think you want to 

hear. . . . It's not fair of you guys to make him choose, 

that's absurd. He is too little to have that kind of 

burden, he is just a kid, you guys are the adults. 

What you have to do, is you have to realize team 

sports have a different obligation than individual 

sports. Team sports you have got an obligation to the 

team as well as to yourself, so if you are involved in a 

team sport, if you are going to get involved in a team 

sport in the first place, which is something the parents 

ought to discuss especially in this situation like this 

where if you think forward down the road, you realize 

it's going to have some effects on visitation. But if he 

is going to be there, then you got to expect that it's 

going to effect your visitation some because he is going 

to need to go to those team sports whether it's baseball 

or hockey or whatever. 

Now if you don't want that to be the situation, the 

two of you need to discuss that . . . you can't leave it 

up to him, and you can't make him choose at the last 

minute, it's not fair. 

So again, that gets back to the beginning point 

involving the child, that is you have to learn how to 

discuss these things and if you can't, the child is going 

to suffer. If you have to work through intermediaries . . . it's not going to likely be a situation that will 

work. You can't, there is not enough discussion of 

details in a short enough time to be able to reach 

decisions, and what will happen is what happened in this 

case, mom will make the decision because dad is not 

involved, you have got to get involved. 

Although the court stated its belief that the parties would 

benefit from counseling in order to learn how to communicate with 
one another for the benefit of the children, it did not order such 

counseling and further did not order that the parties communicate 

with one another other than to order Mr. Hunt to provide Mrs. Hunt 

with the above-described information concerning the children's 

whereabouts when they spend time with their father. 

In addition to other support from the record, including the 

comments of the District Court, Mr. Hunt testified during the 

hearing as follows: 

Q. (by Mr. Sweeney) : All your former wife is asking 

for, Mr. Hunt, is for you to give advance notice of when 

you're coming to Billings to see the children, that you 

let her know your itinerary, and the address and 

telephone number where the children and you can be 

reached if necessary, and that you take into account in 

making your plans for the visits the activities of your 

children. 

A. [Mr. Hunt] I don't have any problems with that, 

Mr. Sweeney. 

Subsequently, when examined by his own counsel, Mr. Hunt 

further testified: 

Q. [by Mr. Leckie] You're not telling the Court 

that you have any objection to maintaining the kids and 

their interests or activities are you? 

A. No I'm not. 

Mr. Hunt's testimony before the District Court does not 

indicate that he would have difficulty with the subsequent decision 

of the court to prioritize the children's activities, nor does it 

indicate that he would have difficulty with providing Mrs. Hunt 

certain information concerning his exercise of visitation. The 

record indicates further that the District Court considered the 

effect that the current situation could have on the children and 
considered their best interests in its ruling clarifying 

visitation. 

The record further provides that although Mr. Hunt has 

expressed a desire to share in decision-making regarding the 

childreng s activities, he has refused to communicate with Mrs. Hunt 

except through third-party intermediaries. The District Court 

determined that this was not a satisfactory method of communication 

for such matters. We conclude that the conditions placed on 

visitation, under the circumstances presented in this case, were 

ordered with the best interests of the children as the primary 

consideration. 

We hold the District Court did not abuse its discretion by 

requiring Mr. Hunt to provide information to Mrs. Hunt concerning 

his visitation with his children. We further hold that the court 

did not abuse its discretion by ordering that priority be given to 

the children's scheduled activities. 

Issue 111. 

Did the District Court err in computing the proper child 

support amount of the appellant? 

Mr. Hunt asserts numerous errors in the computation of his 

child support obligation under the Child Support Guidelines: (1) 

the court erred by imputing income of $5,000; (2) the court erred 

in attributing $6,100 in per diem pay to him; (3) the court 

inappropriately determined day-care costs at $300 per month; (4) 

the court erred by including $1,000 as value of his camper which it 

included in net assets; and (5) the court erred in allowing a 

reduction of $1,800 for Mrs. Hunt's retirement contribution. 

13 
Whenever a district court modifies a child support order, it 

is required to determine the child support obligation by using the 

factors set forth in 55 40-4-204(1) and (2), MCA, and the Uniform 

Child Support Guidelines adopted by the Department of Social and 

~ehabilitation Services. Section 40-4-204 (3) , MCA, further 

provides : 

(a) . . . The amount determined under the guidelines is 

presumed to be an adequate and reasonable support award, 

unless the court finds by clear and convincing evidence 

that the application of the standards and guidelines is 

unjust to the child or to any of the parties or is 

inappropriate in that particular case. 

When this Court reviews child support awards, a presumption 

exists in favor of the district court's determination, and we will 

reverse the district court only if it has abused its discretion. 

In re the Marriage of Sacry (l992), 253 Mont. 378, 382, 833 P.2d 

1035, 1038. We will address each of Mr. Hunt's claims of error 

briefly with this standard and presumption in mind: 

(1) Imputed income: The ~istrict Court specifically found 

that Mr. Hunt chooses to be unemployed for approximately seven 

months of the year. The record supports this finding, particularly 

where Mr. Hunt's income in the two years prior to the dissolution 

was substantially higher when he worked year-round. The court 

found that Mr. Hunt was capable of earning income during his months 

of voluntary unemployment. 

In In re the Marriage of Olsen (1993) , 257 Mont. 208, 215, 848 

P.2d 1026, 1030, we stated that where a parent is voluntarily 

unemployed or underemployed, the court may impute income based upon 

the parent's capacity or ability to earn income. We have also 
favored imputing income in other recent cases. See, e. q. , In re 

the Marriage of Chiovaro (IggO), 247 Mont. 185, 805 P.2d 575 (we 

affirmed the district court's discretionary imputation of income 

for track coaching fees which were available to a father had he not 

voluntarily chosen to refrain from coaching) ; In re the Marriage of 

Weed (1992), 254 Mont. 162, 836 Mont. 591 (we reversed a decision 

not imputing a yearly minimum wage for the purpose of calculating 

child support) ; and in Mooney v. Brennan (1993) , 257 Mont. 197, 848 

P.2d 1020 (we affirmed imputing income to an incarcerated prisoner, 

even though the prisoner has no assets and earns no income while 

incarcerated.) 

In In re the Marriage of Mitchell (19871, 229 Mont. 242, 248, 

746 P.2d 598, 602, we said that the court's findings must 

"realistically reflect what the parents are capable of earning 

using their actual earnings as a guideline." In this case, the 

trial court imputed earnings of $5,000 for approximately seven to 

seven and one-half months. In the two years prior to the 

dissolution when Mr. Hunt chose to work during the winter months, 

his income was substantially higher than $5,000 for that period. 

This amount approximates a minimum wage for similar periods. We 

conclude that this is supported by Mr. Hunt's testimony that he was 

physically capable of working although he found it difficult to 

earn income as a pilot during his period of voluntary unemployment. 

(2) Per diem: Mr. Hunt also contends that the District Court 

erred in attributing $6,100 in per diem pay to him. The Child 

Support Guidelines specifically provide that per diem is an item of 
income. Section 46.30.1508 (b) , ARM. Mr. Hunt testified that he is 

paid per diem at $66 per day when he is away from Wenatchee, 

Washington during his months of employment and that in 1992 that 

amount was $792. However, he also testified that he received other 

compensation from his employer for his expenses when he was not 

away from Wenatchee, Washington, and that amount was total 

reimbursement for receipts turned in for food, lodging, utilities 

and gasoline. He testified that he did not include these expenses 

of up to $40 per day as reimbursement on his Rule 28 affidavit as 

a source of income. Mr. Hunt testified that he would either 

receive the $66 per day per diem or up to $40 per day reimbursement 

which can also be classed as per diem. He did not present any 

testimony as to the actual amount he received as reimbursement, he 

testified that he considered that they were Butler Aviation's 

expenses and that he did not include them as a source of income in 

his Rule 28 statements. These reimbursements were not included in 

Mr. Hunt's gross income. 

The record demonstates that in 1992 Mr. Hunt received $792 in 

per diem at $66 per day for time that he was away from his home 

base of employment in Wenatchee, Washington. It further 

demonstrates that he receives up to $40 per diem for each day's 

expenses when he is not away from the home base during the months 

of his employment. Mr. Hunt testified about his reimbursement for 

living expenses from Butler Aviation as follows: 

Q. [BY MR. SWEENEY] When you're not away from Wenatchee, 

Washington do you receive any per diem? 

A. No per diem. 

16 
Q Do you receive any other sort of compensation to . . . . 

A. Butler pays my expenses if that's what you're asking. 

Q. Yes, and what do they pay you as far as your 

expenses, when you're not receiving the $66 per day. 

A. I don't know what it is, Mr. Sweeney, I turn in my 

receipts. 

Q. Okay, so you turn in whatever receipts you have for 

food? 

A. That's correct. 

Q. Lodging? 

A. That's correct. 

Q. Utilities or gasoline? 

A. That's correct. 

Q. And Butler reimburses you for that in toto, is that 

right? 

A. That's correct. 

Q. Okay, have you disclosed in the Rule 28 statement or 

included in the Rule 28 statement any of these reimbursed 

expenses? 

A. They're Butler's expenses. 

Q. Have you included them in your Rule 28 statement as 

a source of income to you? 

A. NO. 

Q. Do you know approximately how much you received from 

Butler. Would you have received, how much do you receive 

per day or allowed per day in expenses? 

A. I think it's up to $40 a day. 

Q. So if you turn in $40 a day of expenses when you're 

not receiving the $66, Butler will reimburse the $40? 

A. I think you could say that. 

Mr. Hunt further testified his length of employment for 1992, 
the first year of a three-year cycle, ran from June 10 through 

October 23. That period of time equates to 146 days. Subtracting 

the twelve days for per diem at $66 per day (12 times $66 equals 

$792), that leaves 134 days at $40 per day. At $40 per day for 134 

days, Mr. Hunt would receive $5,360 reimbursement. Added to the 

actual $792 in per diem he testified that he received, the total 

amount demonstrated by the record for per diem and reimbursement is 

$6,152. 

Mr. Hunt did not provide the court with specific information 

regarding the amount of his reimbursement for living expenses and 

appeared reluctant to divulge that information. We conclude that 

the court did not err in attributing $6,120 in per diem to Mr. Hunt 

to be included in his gross income for purposes of child support 

computation. 

(3) Day-care costs: Mr. Hunt also contends that the court 

inappropriately determined day-care costs at $300 per month. Mrs. 

Hunt testified that she had had to make arrangements with friends 

to care for her children, that she occasionally had to forego 

working extra hours in her work as a surgical nurse because she had 

no sitter and that she could arrange for more satisfactory child 

care arrangements if she did not have to rely on friends and 

relatives for these services. 

The amount allocated by the court is not excessive under the 

circumstances even though Mrs. Hunt testified that she currently 

spends much less than $330 per month far child care. At the time 

of trial, the children were ages eleven and five. The record 
provides sufficient information to support the court's 

determination of monthly day-care costs. 

Mrs. Hunt is a registered nurse and works as a surgical nurse 

at Deaconess Medical Center in Billings. She testified that she 

currently worked ten-hour shifts three days a week, was generally 

on call one day each week and also was on a scheduled call basis 

every fourth weekend. When she is on call, she can be called in to 

assist with emergency cases that arise and she must be able to go 

to work immediately. 

Her scheduled day shifts run from 7:00 a.m. to 5:30 p.m. Her 

on call time one day per week runs from 5:30 p.m. until 7:00 the 

next morning. On weekends, she is on call for 48 hours, from 7:00 

Saturday morning until 7:00 Monday morning. 

When Mrs. Hunt receives a call to work during an "on call" 

period, she has no time to arrange for a sitter so that must be 

prearranged for the entire time. She testified that this was 

generally not a problem during the week as her regular child care 

provider kept the children overnight. However, the weekends posed 

a problem. She either has to hire a sitter for the entire weekend 

or she must give up her weekend of on call work and thus forego 

income. 

Mrs. Hunt further testified that the child care expense could 

be as little as $200 per month but if she includes activities which 

the children prefer after school, such as the YMCA's after school 

programs, the charges would be higher. She testified further that 

she did not spend that much per month now because she did not 
receive child support and could not afford the expense. She 

specifically testified that if she had regular child support coming 

in so she would not have to rely on neighbors and friends for free 

child care, the day-care costs to provide for both children would 

be approximately $330. Other testimony established that this 

expense would result in an income tax credit of $30 for Mrs. Hunt 

and that the net expense would be $300. 

When questioned about the low amount Mrs. Hunt expended in 

day-care costs, she testified as follows: 

A. [BY MRS. HUNT] My day care figures for this year is 

[sic] just about the same because I've had a lot of 

friends helping me, neighbors helping me and it's right 

around $1200 for this year. But if I had the money and 

if I was getting the child support and getting the child 

care money I wouldn't have to be taking advantage of all 

the rest of this, which I do. 

Q. [BY MR. LECKIE] You do have money in the bank 

though, if you had to pay for day care you could use the 

money in the bank couldn't you? 

A. I suppose if I got desperate, I don't look at that 

money [savings] as my operating costs. I am a saver and 

I have to have some savings. 

Q. Well, you only spent $1200. 

A. Nor do I think that I need to pull on my savings to 

cover for his deficit of not paying child support. 

Q. You're only asking that he pay his guideline share of 

child support though, aren't you? 

A. His share of the $330? 

Q. No, what you actually spend, aren't you? Are you 

asking the Court to make him pay a share of $330 a month 

when in fact you don't have a history of ever spending 

that amount? 

A. I think that's a pretty reasonable amount. I think 

that even at that we're getting off pretty cheap. I 

don't think that I should have to compensate him because 
I have to take advantage of friends and . . . . 

Q. . . . .you spend a $100 a month now but yet you say 

you could spend $230 a month more? 

A. There's another hundred alone just in weekend call 

that I haven't had to spend so far because I've been able 

to get it covered other ways and when I give up my call 

I'm also giving up some income. 

The Child Support Guidelines allow the court to use an amount 

which is a reasonable day care cost. Section 46.30.1525, ARM. We 

conclude the court did not err in attributing $300 per month for 

child care despite the fact that Mrs. Hunt had been spending less 

than that amount. 

(4) The camper: Next, Mr. Hunt contends that the court erred 

by including $1,000 as value of his camper which it included in net 

assets. This too is a discretionary act under the Child Support 

Guidelines and supported by the record. Section 46.30.1514, ARM. 

Under that section, income should be attributed to the net market 

value of non-performing assets because the parent would earn income 

from them if they were sold and invested. Examples of such assets 

are vacation homes, idle land and recreational 

46.30.1514, ARM. 

Mr. Hunt contends that this asset is 

employment because he lives in it for five mont 

vehicles. 

essential 

hs out of 

Section 

to his 

the year 

when he is working. Mr. Hunt is paid per diem for his expenses 

while he is fighting fires. We conclude that the camper, although 

it may cut down on those expenses, is not an essential item of 

personal property and is not income-producing. An example of an 

income-producing item of personal property would be an airplane 
owned by Mr. Hunt which he used for his job. To allow Mr. Hunt to 

exclude this asset would be to give him a double deduction in terms 

of calculating child support as he is also allowed the self support 

reserve amount under 5 46.30.1521, ARM, which allows a minimum 

amount of income which a parent must retain to meet the minimum 

subsistence needs of his or her household for certain needs-- 

including shelter. Thus, the court did not err in including the 

camper as a non-performing asset under the guidelines. 

(5) Mrs. Hunt's retirement contribution: Finally, Mr. Hunt 

contends that the court erred in ,allowing a reduction of $1,800 for 

Mrs. Hunt's retirement contribution. We agree. 

Contributions toward Internal Revenue Service approved 

retirement plans, whether voluntary or mandatory, are deductible 

from gross income up to the actual amount contributed or 6.5% of 

gross income, whichever is less. Section 46.30.1516 (1) , ARM. The 

record does not support Mrs. Hunt's inclusion of this amount as a 

retirement contribution. There was no testimony that the money is 

being placed in an Internal Revenue Service approved retirement 

plan. The District Court improperly deducted $1,800 from Mrs. 

Hunt's gross income as a retirement contribution without any 

evidence that the money was invested in an approved retirement 

plan. 

In summation, we conclude that the District Court abused its 

discretion by improperly deducting $1,800 from Mrs. Hunt's gross 

income. We further conclude, however, that the record supports the 

court's calculation of a reasonable amount for day-care costs, 
properly included amounts for per diem and imputed income and 

properly included Mr. Hunt's camper as a nonperforming asset. / 

We hold the District Court erred in calculating Mr. Hunt's 

child support obligation. 

Issue IV. 

Did the District Court abuse its discretion in ordering the 

appellant to sign a wage assignment in the amount of $500.00 per 

month over and above all amounts collected by the Child Support 

Enforcement Division for unpaid back child support and current 

child support? 

Mr. Hunt's final argument i.s that the Child Support 

Enforcement Division is the sole party allowed to enforce the 

court's decree and, therefore, the court abused its discretion in 

ordering him to assign wages in the amount of $500 per month over 

and above all amounts collected by the Child Support Enforcement 

Division. This argument is without merit. According to 1 40-4- 

209, MCA, the District Court had authority to execute a security or 

other guarantee for the payment of child support delinquencies 

which are in amounts equal to the total of six months support 

payments. 

We hold the District Court did not abuse its discretion in 

ordering the assignment of Mr. Hunt's wages. 

Affirmed in part, reversed in part and remanded for 

recalculation of child support without the $1,800 retirement 

contribution exclusion from Mrs. Hunt's income. 
We Concur: 
March 17, 1994 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

V. JOE LECKIE 

Attorney at Law 

307 Western Federal Savings Bldg. 

2929 Third Ave. North 

Billings, MT 59101 

Kevin T. Sweeney 

SWEENEY & HEALOW 

1250 15th St. West, Ste. 202 

Billings, MT 59102 

ED SMITH 

CLERK OF THE SUPREME COURT