No. 89-387 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

In Re the Marriage of 

Kathryn Signe Gray, 

petitioner and Appellant, 

-vsDennis Keith Gray, 

Respondent and Respondent. 

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APPEAL FROM: District Court of the Fifteenth ~udiciai-' ~ist?ict, 

In and for the County of Daniels, -1 

The Honorable M. James Sorte, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Laura Christoffersen, Gallagher, Archambeault & Knierim, 

Wolf Point, MT 

For Respondent: 

Ken W. Hoversland, Scobey, MT 

Submitted: 12/07/89 

Decided: March 12, 1990 * 

Filed: 
Justice John C. Sheehy delivered the Opinion of the Court. 

Kathryn ~igne Gray appeals the findings of fact, 

conclusions at law and order of the Fifteenth Judicial 

~istrict, Daniels County, determining modification of child 

support. We reverse and remand for a modification of child 

support consistent with this opinion. 

Kathryn and Dennis Gray were married on December 9, 1972. 

The couple had two children, Daniel, born February 19, 1975, 

and Tessa, born August 28, 1978. The parties were divorced 

on July 13, 1985. At the time of the dissolution, the court 

reserved its ruling regarding child support for a later date. 

On September 26, 1985, the District Court ordered Dennis to 

pay $103.71 per child per month as support for the children. 

On July 29, 1988, Kathryn petitioned the ~istrict Court 

to modify the previous decree asserting that she had suffered 

a substantial and continuing change in circumstances that 

caused the previous order to be unconscionable. Since the 

time of the dissolution, Kathryn has suffered from cataracts, 

and a dysfunctional pancreas. In addition, the parties1 

daughter needs extensive orthodontic work. Kathryn's medical 

insurance fails to cover a substantial portion of these 

medical and dental expenses. 

Kathryn works at the Sheridan County A.S.C.S. office 

where she earns $795.62 per month. The District Court 
determined Kathryn's yearly income to be $9,547.44. Her 

employer provides hea.lth insurance for herself and her 

children. At the time of the hearing, Kathryn had outstanding 

bills of $4,279.00. She testified that she charged her 

medications and groceries and paid whatever she could on these 

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bills each month. Furthermore, she testified that she has 

never been able to pay the full amount of her bills each 

month, and thus her medical and grocery bills continue to 

mount. 

~ennis Gray leases two separate farms in Sheridan County, 

Montana, from Bob Scott. One farm is known as the Bob Scott 

place and the other as the Neil Grinker place. The Scott 

lease provided that Scott would supply the farm land, and the 

machinery necessary to do the farming. In turn, Dennis 

provided all the labor, repairs, spray, fuel and expenses 

necessary for the farms. Dennis testified that he paid all 

of his own taxes, social security, insurance, and unemployment 

insurance. 

There is conflicting evidence on the amount of crops 

Dennis was entitled to under the lease with Scott. According 

to the Sheridan County A.S.C.S. office, Dennis is entitled to 

one-half of the crop on the Bob Scott place and one-third of 

the crop on the Grinker place. At the hearing, however, 

Dennis testified that the lease entitled him to only onefourth of the crop from the Grinker place. 

Dennis also testified that he received $5,406 in crop 
insurance. In addition he received $9,474 from the government 

farm programs. He earned approximately $4,000 in livestock 

sales and $850 from truck driving. The District Court, 

relying on Dennis1 tax returns, determined that he earned 

$11,835 after subtracting his expenses. 

Applying the child support guidelines to the facts the 

District Court arrived at the following: 

Income Mother 

Income Father 

Combined Income 

Percentage from table for two children: 

(27.1 divided by 2) + (33.5 divided by 2) = 30.3% 

Mother's yearly & monthly obligations 

$2,892.74 divided by 12 = $241.06 

Father's yearly & monthly obligations 

$3,586.01 divided by 12 = $298.83 

Mother's monthly obligation per child: $120.53 

Father's monthly obligation per child: $149.42 

Furthermore, the District Court found Kathryn in need of 

assistance for the orthodontia and optometrical expenses of 

the children and that Dennis was capable of paying 50% of such 

expenses. 

Kathryn appeals the District Court's findings of fact, 

conclusions of law and judgment on the following issues: 

1. The court erred in failing to attribute unsold 1988 

durum wheat to Dennis Gray's income when calculating the child 

support obligation owed to Kathryn Gray. 
2. The court erred in finding that Dennis Gray received 

only 913 bushels of barley and 1,474 bushels of durum wheat 

from his farming operations in 1988. 

3. The court erred in failing to consider Dennis Gray's 

employment benefits when calculating the amount of child 

support due to Kathryn Gray. 

4. The Court erred in failing to consider Dennis1 

trucking income in calculating his child support obligation. 

This Court has adopted the Uniform District Court Rule 

on Child Support Guidelines (1987), 227 Mont. 1, 44 St.Rep. 

828 (Guidelines). The Guidelines are a suggested procedure 

for the determination of child support. Although the 

Guidelines are not expressly binding, when used by the 

District Court, all findings are reviewable. Absent a clear 

showing of abuse of discretion, the District Court will be 

upheld. In Re the Marriage of Mitchell (1987) , 229 Mont. 242- 

245, 746 P.2d 598, 600; In Re the Marriage of Ensign (1987), 

227 Mont. 357, 361, 739 P.2d 479, 482; In Re the Marriage of 

Ryan (1986), 222 Mont. 188, 191, 720 P.2d 691, 693. We find 

the District Court abused its discretion. 

I. 

The court erred in failing to attribute unsold 1988 durum 

wheat to Dennis Gray's income when calculating the child 

support obligation owed to Kathryn Gray. 

The District Court in its findings of fact and 

conclusions of law found that all of the assets held by Dennis 
are used to provide a primary source of income. Thus, the 

~istrict Court concluded that these income producing farm 

assets are properly excluded as income to determine Dennis1 

child support obligation. The District Court determined the 

unsold wheat harvested during 1988 to be one of the income 

producing assets. Kathryn alleges this unsold wheat is not 

an income producing asset which can be excluded from the child 

support calculations under the Guidelines. Guidelines, Part 

4, 227 Mont. at 6-7. The District Court is correct in its 

assertion that income producing assets are excluded from the 

child support formula, however, the unsold grain is not an 

income producing asset. The unsold grain kept on hand is the 

fruit of Dennis' labor for the 1988 year. It is his income 

for that year and should be considered regarding his ability 

to pay child support. 

The District Court seems to infer in its findings that 

all of the 1988 wheat crop should be utilized by Dennis to 

cover his 1989 farm expenses. Clearly, the District Court is 

incorrect. The 1988 wheat crop is income for that year to be 

considered when determining his child support obligation. 

The 1989 farm expenses should be paid by the proceeds of the 

1989 crop, farm program payments and crop insurance benefits, 

not the unsold 1988 wheat crop. 

Dennis contends that his 1988 tax returns are a true 

reflection of his income. We find no merit in Dennis1 

contention. His tax returns fail to list the 1988 wheat crop 
as income. This Court held in In Re the Marriage of Mitchell 

(1987), 229 Mont. 242, 246-47, 746 P.2d 598, 602, that when 

determining income under the Guidelines, it is disposable 

income of the parent, and not their income tax returns alone, 

which must be considered by the Court. Clearly the unsold 

wheat is disposable income, and thus properly placed under the 

Guidelines. 

The court erred in finding that Dennis Gray only received 

913 bushels of barley and 1,474 bushels of durum wheat. 

According the A.S.C.S. records submitted trial, 

Dennis is entitled to one-half of the crop from the Bob Scott 

place and one-third of the crop from the Grinker place. At 

trial, Dennis testified he was only entitled to one-fourth of 

the crop from the Grinker place. Despite this testimony, 

after the trial, Dennis once again met with the A.S.C.S. 

office and reasserted that he was entitled to one-third of the 

crop from the Grinker place for the year 1989. The District 

Court in its original findings fact and conclusions of law 

agreed with Dennis and stated the following: 

The Respondent testified he had on hand 1,474 

bushels of durum wheat, and had sold 913 bushels of 

barley. The Respondent arrived at this figure from 

the crop insurance worksheet under which he receives 

50% of all grain grown on the Scott lands and 25% 

of all the grains raised on the Grinker farm. The 

crop insurance report shows 2485 bushels of durum 

and 1496 bushels of barley raised on the Scott farm 

and 926 bushels of durum and 660 bushels of barley 

raised on the Grinker property. The Respondent 

further testified that he sold the barley for 

approximately $2.00 a bushel and that the durum was 
worth $4.75 a bushel at the present time. 

After the ~istrict Court handed down its order, Kathryn 

filed a motion to amend the findings, or a motion for a new 

trial alleging, among other things, that the District Court 

incorrectly determined the percentage of crops ~ennis received 

from the Grinker place. 

In response to Kathryn's motion, Dennis argued the 

discrepancies in the bushels amounted to only $304.50 in 

A.S.C.S. disaster and deficiency payments. ~ccording to 

Dennis, the $304.50 would be "de minimisIt and thus the 

District Court should refuse to grant a new trial. The 

District Court agreed, and refused to grant a new trial. 

Later, on June 5, 1989, after a further review of the 

evidence, the District Court amended its findings, and stated 

the following: 

In its earlier findings and conclusions issued by 

the Court on March 31, 1989, the Court considered 

the Respondent's income from the Grinker land to be 

one-fourth of the government benefits and now 

believes it should be one-third. The difference in 

income to be credited the Respondent is $304.50. 

Applying the Montana Child Support Guidelines for 

child support, 30.3% of the $304.50 should be 

payable in child support r304.50 x .303 = 92.26 

yearly, divided by 12 = 7.69 per month]. 

Therefore, the Court amends the Findings of Fact and 

~onclusions of Law dated March 31, 1989, and order 

Respondent to pay child support of $157.11 per child 

per month, or a total of $314.22 per month. 

While the District Court recalculated the child support 

obligation in regard to the government crop payments, the 

District Court failed to determine how the change from one- 
fourth to one-third would effect the amount of crops ~ennis 

was entitled from the Grinker place. Ultimately the change 

to one-third would guarantee Dennis a larger share in the 

wheat and barley crops harvested from the ~rinker place. To 

complicate matters even worse, now Kathryn argues that 

evidence exists in the A.S.C.S. records that Dennis is 

entitled to all of the barley and wheat raised at the Grinker 

place. Rather than make a determination on the amount of 

crops from the Grinker place, Dennis is entitled to, we remand 

to the District Court to calculate the amount of crops 

belonging to Dennis from the Grinker place. We also note, as 

previously stated, the District Court should include the 

unsold 1988 wheat from the Grinker place in its calculations. 

111. 

The court erred in failing to consider Dennis Gray's 

benefits when calculating the amount of child support due to 

Kathryn Gray. 

Section 111, Part 1 of the Guidelines provides that the 

court should consider employment benefits as income to the 

parent if such benefits provide something that the parent 

would otherwise have to provide. 227 Mont. at 5. Dennis Gray 

testified that Scott provides him with housing, utilities, 

housing fuel and telephone expenses. The District Court, 

however, failed to consider these employment benefits in 

calculating Dennist child support obligations under the 

Guidelines' formula. These employment benefits constitute 
gross income under the Guidelines, and should be considered 

when the District Court calculates Dennis' ability to pay 

child support. 

IV. 

The court erred in failing to consider trucking income 

in calculating his child support obligation. 

Dennis testified that he received $850 from his truck 

driving in 1988. That income is not reported on his 1988 

income tax returns. The District Court disregarded Dennis' 

income earned from his truck driving due to the fact that it 

has not been reported on his 1988 tax returns. While tax 

returns are a valuable tool in the determination of the child 

support, the District Court should have looked beyond the tax 

returns and found the $850 as income under the Guidelines. 

In re the Marriage of Mitchell (1987), 229 Mont. 246-47, 746 

~ccordingly, we reverse and remand for modification of 

child support consistent with this Opinion. 

We Concur: 

4.7~ Chief Justic 

Justice