NO. 93-393 IN THE SUPREME COURT OF THE STATE OF MONTANA 1994



### IN RE THE MARRIAGE OF LAUREL S

## . PUTT, Petitioner and Respondent,

-vGEORGE 

### E. PUTT, Respondent and Appellant.

APPEAL FROM: District Court of the Eleventh Judicial District, In and for the County of Flathead, The Honorable Ted 0. Lympus, Judge presiding.

COUNSEL 

### OF RECORD: For Appellant: Ann C. German, Libby, Montana For Respondent: CharlesA. Graveley, Townsend, Montana

Submitted on Briefs: April 21, 1994 Decided: September 21, 1994 Filed: 

## SEP211994

aERKOF SUPVIEME COURT STATEOF MONTANAJustice Fred J. Weber delivered the Opinion of the Court. This is an appeal from an order of the Eleventh Judicial District Court, Flathead County, granting respondent Laurel Platt



### a modification of child support. We affirm. The sole issue on appeal is: Did the District Court abuse its discretion when it modified child support by increasing it from $375 per month to $616.62 per month? Laurel Platt (Laurel),and George Platt (George)weremarried

on July 1,1972. Two children were born of themarriage before the couple divorced in 1979. Laurel was granted custody of the children. George was ordered to pay $100 child supportper month for each child. At the time this actionbegan in March of 1992,Laurel resided in Florence, Montana with her son Chris Harold Platt, who was a minor. The other sonhad attained the age of majority and resided elsewhere. Laurel was employed in a clerical position earni~c $11,375per year. Combined with the income from her position shc received money from interests and dividends bringing her yearly income to $29,346.21. George lived in Aliquippa, Pennsylvania at the beginning oithis action with his secondwife and theirminor child. George was employed by the Army earning a salary of $64,980 per year. When adjusting his income for attributable assets according to the Montana Child Support Guidelines (guidelines),his income totalled $67,034.13. 2Following the original assessment of child support, Laurel petitioned for and was granted an increase in child support in 1989. Following a settlement agreement, Georgewas ordered topay $350 per month for each child. In March of 1992, Laurel again petitioned the court for an increase in child support for her remaining minor son, Chris Harold Platt, based upon the newly adopted guidelines. Laurel had lost her employment because the company for which sheworked closed. According to the guidelines, both parties had to submit affidavits concerningtheirrespective financialsituations. Based

on these calculations, Laurel determined that George should pay $683.48 for support for Chris. George, on the other hand, determined thathe shouldpay $446.62 forChris' supportbecause of various amounts that he felt he was entitled to have subtracted from the amounts set by the guidelines. OnJune 11, 1993, the trial court ruled that George shouldpay the sum of $616.62 per month, retroactive to the filing of the petition for modification of support on March 18, 1992, an6 continuing until Chris reaches the age of eighteen or further ordered by the court. George appeals the Order and Rationale issued by the court on June 11, 1993. Did the District Court abuse its discretion when it modified child support by increasing it from $375 per month to $616.62 per month? George argues thatthe courtmade its determination baseduponsalary figures from his employment in the Army and that he is now retired,earning significantlyreducedmonthlyretirementbenefits. Also, George claims that the courtdid not take into consideration the fact that even after retirement, he would not receive retirement monies immediatelybecause he owed the governmentmoney from a 1975 loan. George also claims that the District Court ignored his variance of $170 from the guideline's totals. George based his variance on a cost of living differential, the cost of traveling for long distance visitation, and for the added costs of supporting an older child. Laurel argues that the court did not ignore George's variance figurebut found that Georgehad notprovided adequate evidence of the totals that George claimed. Laurel contends that the District Court made an accurate assessment based upon the evidence that it had been presented. Our standard of review for a District Court's findings relating to modification of child support is that a presumption exists in favor of the district court decision and we will only overturn the decision if the trial court abused its discretion. Marriage of Sacry (1992), 253 Mont. 378, 833 P.2d 1035. TheDistrict Courtgranted Laurel an increase in child support for Chris inthe amount of $616.62 based upon the financial figures presented in the parties' affidavits. The court would not allow thevariancepostulated by George because ithad notbeen presenteC with evidence to clearly establish the need for such variance. The District Court determined the monthly figure for child

### support based upon the current amounts before it. The show cause hearing to consider the modification of support was first held in August of 1992 and continueduntil January 14, 1993,atwhich time George'smonthly salarywas almost $5,000permonth. George stated this amount on his affidavit. Although George now objects to the court's use of this amount because of his upcoming retirement, George did not retire until April of 1993, eight months following the initial hearing date. Thus, the District Court properly used the actual figures that it had before it to determine the modification of supportpayments. Marriage of Sullivan (1993), 258 Mont. 531, 853 p.2d 1194;Marriage of Conklin (l986),221Mont. 30, 716 P.2d 629. Further, George's affidavit states that following his retirement, entry level jobs in his field pay between $2,000 and $3,000 a month. Although George also objects to the court's reliance on thisprojection of figures, itwas George who provided the court with this information in his affidavit. George's main argument centers around the general statements inhis affidavitthat therecommended child supportdetermined froir. his income should be reduced by $170 because of various considerationspermitted by ARM 46.30.1543. 

### These considerations included a cost of living differential, costs of supporting older children,and costsof longdistance travelvisitations. The court noted that the only valid consideration, not emanating from voluntary choices, could have been the long distance travel which George claimed to be $50per month. However, the court found thatGeorge had not provided it with adequate evidence. George argues that the courtabused itsdiscretionbecause it did not considerhis variance. The court did consider his alleged amount for long distance travel, as it considered the cost of living differential and the added expense for older child, but found insufficient evidence upon which to grant these variances. A careful review of the record in this case is without any support for George's $170 alleged variance. We have already stated that when a party alleges that a variance in living expenses isdue, thepartymust submit competent evidence to prove that the amount of support should be reduced. Marriage ofMitchell (1987), 229Mont. 242, 746 P.2d 598. The only evidence in the file consists of George's and Laurel's affidavits. Although several hearings were held in the course of this action, the transcripts are not part of the file. Therefore, there is no concrete evidenceother thanGeorge's allegations that themoney is due him. We conclude that without a proper foundation for the alleged amounts of variance, the courtdid not abuse its discretion in failing to subtract these amounts from the $616.62 amount. We hold that the District Court did not abuse its discretion when itmodified child supportby increasing it from $375 permontt. to $616.62 per month. Affirmed.

ice

### Justice Terry N. 

### Trieweilerdissenting. I 

### dissent from the majority opinion. I 

### conclude that the District Court abused its discretion by ignoring uncontroverted evidence. 

### I would reverse the District Court's order modifying George Platt's child support obligation. Chris Platt was born on March 6, 1976, and accordingly, his father will have an obligation to supporthim until March 6,

### 1994. The District Court's orderdetermining the amount of George's future child support obligation was based on an assumption that George's annual earned income would be $64,980 and that he is entitled tono variances pursuant to 46.30.1543,ARM. 

### However, the undisputed evidence indicates otherwise. George'saffidavit,which was uncontroverted,establishedthat his income would terminate on April 1, 1993, and would not resume until November 1 of that year. His affidavit indicted that he would receive $1500 for retirementpay inNovember 1993,and $2000 per month thereafter. He also indicated that he had no post-retirement job, but then estimated what he could expect to

earn if he was able to obtain a job. However, assuming he would find employment, the evidence was uncontroverted that his annual salary would be from $48,000 to $60,000per year. Therefore, his child support obligation fromApril 1, 1993 throughMarch 6,1994, should nothavebeen based on an estimated annual salary of $64,000 per year. Furthermore, George submitted undisputed evidence by way of his affidavit that therewas a cost of living differential between
8

### Pennsylvania and Montana; that he incurred additional costs for long distance visitation; and that he was paying for his child's health care. Without any evidence to the contrary, the District Court arbitrarily ignored this evidence. The District Court concluded that there was no evidence that long distance travel expense was incurred. However, George's affidavit alone is sufficient evidence that itwas incurred. Therewas no evidenceto the contrary. The District Court concluded that although George's living expenses might have been greater than Laurel's living expenses, they were voluntarily incurred because he acquired a new family. The basis for that conclusion is a mystery. The only evidence regarding the disparity in living expenses that 

### Ican find in this record is the evidence provided in George's affidavit. George's affidavit does not relate the disparity in his living expenses to the fact that he is remarried and has a family to support. Instead,he offered evidence of per diem rates paid by the United States government which indicate that the cost of living in Pennsylvania is about 33 

### percent higher than in Montana. The District Court ignoredGeorge's claim foravariancebased upon his payment of Chris's medical insurance or expenses because that item was apparently entered on the wrong line of the child support determinationwork sheet. For these reasons, I 

### conclude that the District Court abused its discretion in its determination of George's child support obligation. I

### would reversethe judgment of the District Court andremand for entry of an order modifying George's child support obligation by ordering that he pay $446.62 per month fromMarch 18, 1992, until Chris reaches the age of majority.

### tothe