NO. 94-030

IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

IN RE THE MARRIAGE OF:

TOM E. NOEL,

Petitioner and Respondent,

and

BRENDA S. NOEL,

Respondent and Appellant.

APPEAL FROM: District Court of the Eleventh Judicial District,

In and for the County of Flathead,

The Honorable Michael H. Keedy, Judge presiding.

COUNSEL OF RECORD:

For Respondent and Appellant:

James B. Wheelis Montana Legal Services

Association, Kalispell, Montana

For Petitioner and Respondent:

Gregory E. Paskell, Kalispell, Montana

For Amicus Curiae:

Amy Pfeifer, Department of Social and Rehabilitation Services, Helena, Montana

Filed:

Submitted on Briefs: May 5, 1994

Decided: June 7, 1994
Chief Justice J. A. Turnage delivered the Opinion of the Court.

This dissolution of marriage was filed in the District Court

of the Eleventh Judicial District, Flathead County. The parties

submitted to the court a property settlement agreement which did

not require the mother to pay child support for the child of the

marriage, who was in the father's custody. The court refused to

accept the agreement and ordered the mother to pay child support to

the father in the amount of $33 per month. She appeals. we

reverse and remand.

The issue is whether the District Court abused its discretion

in applying the Montana Child Support Guidelines when it declined

to deduct child care costs allowed by Rule 46.30.1516(3), ARM, from

income imputed to the mother under Rule 46.30.1513, ARM.

The parties were married in 1986 and had one child. They

separated in 1989. Between the parties' separation and the date of

dissolution, the mother had two children by another man. At the

time of the dissolution hearings, she was expecting a third child

from that relationship.

The parties arrived at a property settlement agreement which

awarded custody of their son to the father. When the parties

submitted the agreement to the District Court, the court declined

to approve it because the agreement did not require the mother to

pay child support. The court stated, "I don't approve of property

settlement agreements where minor children are involved, as here,

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that provide for no support from a non-custodial parent who is

able-bodied and making babies."

At a subsequent hearing, the mother testified that she had

been sporadically employed at minimum wage jobs since finishing

high school. She was unemployed and had been receiving AFDC

payments at the time of the hearing. She testified that the father

of her youngest children, with whom she and the children lived, was

a college student who worked during the summers as a firefighter.

In calculating the mother's child support obligation, the

court imputed income to the mother at minimum wage, pursuant to

Rule 46.30.1513, ARM. It ruled that the reference in Rule

46.30.1513(2)(c), ARM, to deductible child care costs included only

those costs for children of the marriage or the relationship in

question, rather than for children produced after the termination

of that relationship. Then, the court treated as discretionary the

provision of Rule 46.30.1516, ARM, allowing a deduction from income

for child care expenses. The result of the court's calculations

was a $33 per month child support obligation for the mother.

Did the District Court abuse its discretion in applying the

Montana Child Support Guidelines when it declined to deduct child

care costs allowed by Rule 46.30.1516(3), ARM, from income imputed

to the mother under Rule 46.30.1513, ARM?

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The Montana Child Support Guidelines, which are published in

the Administrative Rules of Montana at Title 46, Chapter 30,

subchapter 15, are promulgated by the Department of Social and

Rehabilitation Services pursuant to § 40-5-209, MCA. The Guidelines establish detailed standards for calculating child support

obligations. The standards, generally stated, require each parent

to contribute child support in an amount proportionate to that

parent's share of the combined resources of both parents, after

specific allowable deductions have been made from each parent's

gross income.

In this case, the mother was not employed outside the home.

Rule 40.30.1513, ARM, sets forth the procedure for imputing income

to an unemployed parent:

(1) "Imputed income" means income not actually earned by

a parent, but which may be attributed to the parent

because the parent is voluntarily unemployed, is not

working full-time when full-time work is available, or

the parent is intentionally working below his or her

ability or capacity to earn income.

(2) Income may be imputed according to one of two

methods as appropriate:

(a) Determine employment potential and probable net

earnings level based on the parent's recent work history,

occupational qualifications, and prevailing job opportunities and earnings level in the community. If there is

no recent work history, and no higher education or

vocational training, income may be imputed at the minimum

wage level.

. . .

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(c) Whenever income is imputed to an unemployed parent

who is providing in-home care for the child for whom

support is being calculated, and if that parent would be

required to incur child care expenses if employed at the

imputed level, then the imputed income should be reduced

by the reasonable value of the parent's child care

service.

The court imputed income to the mother at a minimum wage rate. It

refused to allow the mother a deduction for child care expenses

under subsection (2)(c) above, reasoning that subsection (2)(c)

applied only to children of the marriage.

Rule 46.30.1516, ARM, Determination of Wet Income, provides at

subsection (3):

Reasonable expenses for items such as child care or inhome nursing care for the parent's legal dependents other

than those for whom support is being determined, which

are actually incurred and which are necessary to allow

the parent to work, less federal tax credits, if any, may

be deducted from gross income.

The court "cho[se] to deny a deduction" to the mother for child

care costs, ruling that such a deduction is discretionary.

Our standard of review of a ruling establishing a child

support obligation is whether the district court abused its

discretion. In re Marriage of Weed (1992), 254 Mont. 162, 165, 836

P.2d 591, 593. However, a district court must apply its discretion

in a realistic manner, taking into account the actual situation of

the parties. In re Marriage of Gebhardt (1989), 240 Mont. 165,

172, 783 P.2d 400, 404. Here, we conclude that the court abused

its discretion.

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The District Court's decision does not realistically reflect

the mother's income earning ability. It is apparent that, in order

to work, the mother would need someone to care for the children who

live with her. She testified that there were no relatives or other

people available to assume full-time care of the children.

If income is to be imputed to the mother, then a deduction for

necessary child care expenses is clearly allowable under Rule

46.30.1516(3), ARM. We hold that, in this case, a deduction for

child care expenses should have been allowed.

As suggested in the amicus curiae brief filed in this matter

by the Child Support Enforcement Division, it appears that a

portion of the mother's child care cost may be assignable to the

father of those children, as his responsibility. Evidence on this

point should be considered on remand.

Reversed and remanded for further proceedings in conformity

with this Opinion.

We concur:

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June 7, 1994

CERTIFICATE OF SERVICE

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

to the following named:

James B. Wheelis, Esq.

Montana Legal Services Assoc.

33-2nd St. E.

Kalispell, MT 59901

Gregory E. Paskell

Attorney at Law

475 No. Main

Kalispell, MT 59901

AMY PFEIFER

Department of Social & Rehabilitative Services

Child Support Enforcement, Legal Counsel

3075 N. Montana, Suite 112

Helena, MT 59604

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA