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: 

Charles A. Graveley, Townsend, Montana 

Submitted on Briefs: April 21, 1994 

Decided: September 21, 1994 Filed: SEP 2 1 1994 

aERK OF SUPVIEME COURT 

STATE OF MONTANA 
Justice 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) were married 

on July 1, 1972. Two children were born of the marriage before the 

couple divorced in 1979. Laurel was granted custody of the 

children. George was ordered to pay $100 child support per month 

for each child. 

At the time this action began in March of 1992, Laurel resided 

in Florence, Montana with her son Chris Harold Platt, who was a 

minor. The other son had attained the age of majority and resided 

elsewhere. Laurel was employed in a clerical position earni~c 

$11,375 per 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 second wife and their minor 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. 

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Following the original assessment of child support, Laurel 

petitioned for and was granted an increase in child support in 

1989. Following a settlement agreement, George was ordered to pay 

$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 she worked closed. 

According to the guidelines, both parties had to submit 

affidavits concerning their respective financial situations. Based 

on these calculations, Laurel determined that George should pay 

$683.48 for support for Chris. George, on the other hand, 

determined that he should pay $446.62 for Chris' support because of 

various amounts that he felt he was entitled to have subtracted 

from the amounts set by the guidelines. 

On June 11, 1993, the trial court ruled that George should pay 

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 that the court made its determination based upon 
salary figures from his employment in the Army and that he is now 

retired, earning significantly reducedmonthly retirementbenefits. 

Also, George claims that the court did not take into consideration 

the fact that even after retirement, he would not receive 

retirement monies immediately because he owed the government money 

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 

figure but found that George had not provided 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. 

The District Court granted Laurel an increase in child support 

for Chris in the amount of $616.62 based upon the financial figures 

presented in the parties' affidavits. The court would not allow 

the variance postulated by George because it had not been 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 continued until January 14, 1993, at which time 

George's monthly salary was almost $5,000 per month. 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 support payments. Marriage of Sullivan (1993), 258 

Mont. 531, 853 p.2d 1194; Marriage of Conklin (l986), 221 Mont. 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 this projection of figures, it was George who provided 

the court with this information in his affidavit. 

George's main argument centers around the general statements 

in his affidavit that the recommended child support determined froir. 

his income should be reduced by $170 because of various 

considerations permitted by ARM 46.30.1543. These considerations 

included a cost of living differential, costs of supporting older 

children, and costs of long distance travel visitations. 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 $50 per month. However, the court found that 
George had not provided it with adequate evidence. 

George argues that the court abused its discretion because it 

did not consider his 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 is due, the party must submit competent 

evidence to prove that the amount of support should be reduced. 

Marriage of Mitchell (1987), 229 Mont. 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 evidence other than George's allegations that the money is 

due him. We conclude that without a proper foundation for the 

alleged amounts of variance, the court did 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 it modified child support by increasing it from $375 per montt. 

to $616.62 per month. 

Affirmed. 

ice 

Justice Terry N. Trieweiler dissenting. 

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 support him until March 6, 1994. 

The District Court's order determining 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 to no variances pursuant to 46.30.1543, ARM. However, the 

undisputed evidence indicates otherwise. 

George's affidavit, 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 retirement pay in November 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 $60,000 per year. Therefore, his 

child support obligation from April 1, 1993 through March 6, 1994, 

should not have been based on an estimated annual salary of $64,000 

per year. 

Furthermore, George submitted undisputed evidence by way of 

his affidavit that there was a cost of living differential between 

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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 it was incurred. There was no evidence to 

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 I can 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 ignored George's claim for a variance based 

upon his payment of Chris's medical insurance or expenses because 

that item was apparently entered on the wrong line of the child 

support determination work sheet. 

For these reasons, I conclude that the District Court abused 

its discretion in its determination of George's child support 

obligation. I would reverse the judgment of the District Court and 
remand for entry of an order modifying George's child support 

obligation by ordering that he pay $446.62 per month from March 18, 

1992, until Chris reaches the age of majority. 
to the