NO. 95-271

IN THE SUPREME COURT OF THE

1995

STATE OF MONTANA

In re the Marriage of

MARY CLAIR WELCH,

Petitioner and Respondent,

VS.

JOHN WILLIAM WELCH,

Respondent and Appellant.

APPEAL FROM: District Court of the Fourteenth Judicial District,

In and for the County of Meagher,

The Honorable Roy C. Rodeghiero, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

John L. Hollow, Helena, Montana

For Respondent:

Richard L. Parish, Helena, Montana

Filed:

Submitted on Briefs: September 21, 1995

Decided: October 24, 1995
Justice William E. Hunt, Sr. delivered the Opinion of the Court.

Petitioner Mary Clair Welch (Mary Clair) moved the First

Judicial District Court, Meayher County, to modify the parties'

divorce decree to increase the amount of child support Respondent

John William Welch (John) is required to pay. After a hearing on

her motion, the child support was increased. John appeals.

Affirmed.

ISSUES

The following issues are raised on appeal:

1 . Did the District Court err in declining to make specific

findings of fact and conclusions of law?

2 . Did the District Court err in failing to use the parties'

current gross incomes in determining child support?

3 . Did the District Court err in including in the order

supplemental support for day care and extraordinary medical

expenses?

4 . Did the District Court err in refusing to grant John a

variance for long-distance visitation or his higher cost-of-living?

5 . Did the District Court err in making the increased

support retroactive to the date of the hearing?

FACTS

John and Mary Clair were married in July 1978 and divorced in

October 1984. They have two children, a 15-year-old son and a 16-

year-old daughter. While their son is healthy, their daughter

suffers from a degenerative neuromuscular disease which has

confined her to a wheelchair and rendered her wholly unable to care

2
for herself. John now lives in the Washington, D.C. area, while

Mary Clair and the children continue to reside in Montana.

Pursuant to the settlement agreement entered into by the

parties at the time of their divorce, John was required to provide

child support in the amount of $125 per month for each child. The

record does not state whether the daughter was ill at the time of

the divorce, but does reveal that her condition has been

deteriorating for some years now.

In May 1993, John moved the District Court for modification of

the divorce decree, requesting extended visitation with his son.

(The daughter is unable to travel to John's home for visitation.)

This motion was subsequently granted. In June 1993, Mary Clair

also moved the District Court for modification of the divorce

decree, asking for, among other things, an increase in child

support. The hearing on her motion was continued twice, once at

her request and once at John's, but finally took place on March 1,

1994.

At the hearing, Mary Clair provided the District Court with a

child support worksheet her attorney had prepared, and testimony

was taken from both parties. After the hearing, the District Court

ordered both parties to submit financial information to the Montana

Child Support Enforcement Division so the Division could determine

an appropriate amount of child support. However, the Division

apparently declined to make such a determination. In June 1994,

Mary Clair moved the court to render a decision or reset the matter

for hearing. In April 1995 the District Court issued its order,

3
adopting the figures from Mary Clair's child support worksheet and

increasing the child support accordingly. John appeals from that

decision.

STANDARD OF REVIEW

This Court will review a district court's overall decision on

modification of child support awards to determine whether the court

abused its discretion. In re Marriage of Kovash (1995), 893 P.2d

860, 863, 52 St.Rep. 280, 281. The district court's determination

is presumed to be correct and, absent an abuse of discretion, will

not be disturbed. In re Marriage of Hunt (1994), 264 Mont. 159,

870 P.2d 720. See also In re Marriage of Platt (1994), 267 Mont.

38, 881 P.2d 634; In re Marriage of Sacry (1992), 253 Mont. 378,

833 P.2d 1035; In re Marriage of Parrish v. Appleton (1988), 234

Mont. 345, 763 P.2d 658.

Issue 1

Did the District Court err in declining to make specific

findings of fact and conclusions of law?

The order of the District Court in this matter was not

accompanied by specific findings of fact or conclusions of law.

John contends the lack of specific findings and conclusions is

reversible error.

Rule 52(a), M.R.Civ.P., states that "[flindinys of fact and

conclusions of law are unnecessary on decisions of motions under

Rule I2 or 56 or any other motion except as provided in subdivision

(c) of this rule." Subsection (c) involves judgments at trial and

is inapplicable in this case. This matter was brought before the

4
District Court on motion by Mary Clair. Therefore, under Rule

52(a), specific findings and conclusions are not required.

John correctly notes that this Court encourages a district

court to include finding of fact and conclusions of law whenever

practicable. This encouragement, however, does not translate into

an absolute requirement. This Court has found in the past that

specific findings and conclusions are not necessary in certain

child support and custody cases. See In re Marriage of Vinecke

(19861, 221 Mont. 58, 716 P.2d 638; Baker v. Baker (1982), 198

Mont. 371, 646 P.2d 522.

Because the Rules do not require a judge to enter specific

findings of fact and conclusions of law under these circumstances,

it was not an abuse of discretion for the District Court to omit

them.

Issue 2

Did the District Court err in failing to use the parties'

current gross incomes in determining child support?

John alleges the District Court erred in using income figures

from the parties' 1992 tax returns to calculate support. He argues

the court should have employed 1993 income figures or, in the

alternative, should have allowed John to deduct certain moving

expenses and overtime income from the 1992 figures.

The District Court utilized income figures from the last year

for which both parties provided documentation in the form of their

respective income tax returns. That year was 1992. While John did

testify his income for 1993 was lower than that which was reported

5
on his tax return for 1992, his testimony was not corroborated by

his 1993 tax return or any other documentation.

The testimony of any witness is generally sufficient to

establish a fact. & § 26-l-301, MCA; Kovash, 893 P.2d at 864.

However, when the testimony is potentially self-serving, the court

may legitimately expect the witness to offer corroborating evidence

if possible. John offered no such evidence. In this case, the

latest documented income figures available to the court were for

1992. It is not error for a court to use those figures which are

actually before it in order to determine support. Platt, 881 P.2d

at 636. Therefore, the court did not abuse its discretion by

calculating support from the 1992 income figures.

John also argues the court abused its discretion by refusing

to deduct certain moving expenses and overtime pay from his 1992

income before using that amount to figure support.

ARM 46.30.1508 states "'gross income' means income from any

source, except as excluded in subsection (d)." (Enabled by 5 40-5-

209, MCA, emphasis added.) Subsection (d) concerns public

assistance programs, and is not applicable in this case.

Nevertheless, John argues that "gross income" for purposes of

calculating support should not include moving expenses or overtime,

even though such amounts were reported to the federal government as

gross income on his tax return. John offers no case law supporting

his claimed exclusion for moving expenses, nor did he testify at

the hearing as to what specific amount he spent on moving. Given

the lack of precedent or specific testimony, it was not an abuse of

6
discretion for the court to refuse to deduct moving expenses from

John's gross income before determining support.

As for the issue of overtime, the District Court did not

consider it because John never raised it. Overtime was not

discussed in the hearing, nor does it appear in any of the court

documents. It was not an abuse of discretion for the court to fail

to grant relief for which John never asked. Further, this Court

will not review an issue which is raised for the first time on

appeal. In re Marriage of Erler (19931, 261 Mont. 65, 862 P.2d 12.

The use of the parties' 1992 gross income, as shown by their

respective tax returns, was not an abuse of discretion.

Issue 3

Did the District Court err in including in the order

supplemental support for day care and extraordinary medical

expenses?

John alleges that the District Court erred by ordering him to

pay additional support for day care and extraordinary medical

expenses. John argues that Medicaid pays for all medical expenses

and that day care expenses are avoided by having the son care for

the daughter.

Mary Clair testified she receives Medicaid money for respite

care, but she also testified that such money specifically may not

be used to pay for child care during the hours when she is at work.

Mary Clair works full time. Her daughter needs constant

supervision and care. It was not an abuse of discretion for the
court to expect John to assist with the cost of that care,

regardless of his son's contributions.

The court also ordered John to contribute each month towards

extraordinary medical expenses. Mary Clair testified that their

daughter incurs extra expenses, such as the cost of repairing the

wheelchair lift which provides the daughter with access to and from

the family home. John may reasonably be required to pay a given

amount towards such expenses. The court did not abuse its

discretion by including in the order supplemental support for day

care and extraordinary medical expenses.

Issue 4

Did the District Court err in refusing to grant John a

variance for long-distance visitation or his higher cost of living?

John alleges that he was entitled to a variance in his child

support obligation because of the expenses he incurs due to longdistance visitation and the higher cost of living in Washington,

D.C.

In discussing child support obligations, a "variance" is a

reduction in support granted to one party due to extraordinary

expenses. John contends he should have been granted a variance for

long-distance visitation, long-term visitation, and the fact that

it cost more to live in Washington, D.C. than it does to live in

Montana. All of these factors are acceptable reasons for the

granting of a variance. Section 40-5-209, MCA.

Support awards determined under the Montana Child Support

Guidelines are presumed to be correct, but this presumption may be

8
rebutted by evidence that a child's needs are not being met. In

order to rebut the presumption, the party seeking the variance must

present competent evidence showing that application of the

guidelines would be unjust or inappropriate. Such evidence may

include documents such as a financial affidavit and a child support

worksheet. Section 40-5-209, MCA.

While it is true in this case that John requested a variance

at the hearing, he offered no documentation regarding the cost of

living or the costs of travelling for visitation. He did testify

that in his opinion it was "at least 200 percent" more expensive to

live in Washington, D.C. than it was to live in Montana. This

opinion was not substantiated by any concrete evidence.

This Court faced a similar situation in In re Marriage of Nash

(19921, 254 Mont. 231, 836 P.2d 598. In that case, the appellant

alleged that the district court's failure to grant a variance for

the higher cost of living in Alaska was an abuse of discretion.

But this Court found:

[Appellant] introduced no statistical data to support his

claim that the cost of living adjustment in Alaska is 70

percent higher than in Montana. Nor did he cite specific

examples of increased cost, other than transportation.

The District Court was free to disregard his

unsubstantiated estimate.

-rNash 836 P.2d at 601. In order to receive a variance, John was

required to present competent evidence showing why he was entitled

to one. A bare claim of entitlement alone is not enough.

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 . . We conclude that without a proper

foundation for the alleged amount of variance, the court

9
did not abuse its discretion in failing to subtract these

amounts from [the award].

-IPlatt 881 P.2d at 636-37. Because John submitted no competent

evidence regarding his request for a variance, the District Court's

refusal to grant one was not an abuse of discretion.

Issue 5

Did the District Court err in making the increased support

retroactive to the date of the hearing?

In its order of April 1995, the District Court made the

increased support retroactive to the date of the hearing, which was

held in March 1994. John alleges the District Court abused its

discretion by making the award retroactive.

"Whether child support is awarded retroactively to the date of

notice of a motion for modification is clearly within the

discretion of the district court." In re Marriage of Hill (1994),

265 Mont. 52, 57, 874 P.2d 705, 707, citing In re Marriage of Fronk

v. Wilson (1991), 250 Mont. 291, 297, 819 P.2d 1275, 1279. See

also Nash - I 836 P.2d 598; In re Marriage of Gebhardt (1989), 240

Mont. 165, 783 P.2d 400; and In re Marriage of Saylor (1988), 232

Mont. 294, 756 P.2d 951.

The court found Mary Clair needed additional support to meet

the expenses related to the care of her children. These expenses

did not begin after the court entered its order, but were being

incurred since the filing of the petition, if not before. "There

is no reason to distinguish between the support necessary after the

court's order and the children's needs from the time of [the1

petition until the order was entered." Hill -r 874 P.2d at 709.

10
John's arguments that such an award is inappropriate because

it places upon him a sudden and significant debt, as well as the

potential stigma of a "dead-beat dad," are unpersuasive. For years

John has contributed $250 per month towards the care of his

children, leaving Mary Clair responsible for all additional costs.

If he were not made to contribute the greater support until after

the order was entered, it would mean another thirteen months during

which Mary Clair must pay most of the costs of child care. His

understandable reluctance to be saddled with a significant debt

nevertheless does not justify placing this additional burden on

Mary Clair. Any stigma which might attach, while unfortunate, is

beyond the control of the courts. In any case, the stigma

presumably will be removed once the debt is paid.

Since the ability to grant retroactive support is entirely

discretionary, the District Court's decision was not an abuse of

discretion.

Affirmed.

We Concur:

/--/ Chief Justice
October 24, 1995

CERTIFICATE OF SERVICE

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

following named:

JOHN L. HOLLOW

Attorney at Law

318 East 6th Avenue

Helena. MT 59601

John William Welch

Attorney at Law

5838 Bridgetown Court

Burke, VA 22015

RICHARD L. PARISH

Attorney at Law

800 E. Sixth Ave.

Helena, MT 59601

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA