NO. 93-581 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

ANTHONY CLARK WELZENBACH, 

Petitioner and Appellant, 

-vJOHANNA BANGEMAN , 

Respondent and Respondent. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Michael Keedy, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Anthony C. Welzenbach, Kalispell, Montana (pro se) 

For Respondent: 

James C. Bartlett, Hash, OIBrien & Bartlett, 

Kalispell, Montana 

Fmhq w - Submitted on Briefs : November 3, 1994 t, B $C::":" ' 

,,'A , Decided: January 18, 1995 Filed: 

c: 
Justice Fred J. Weber delivered the Opinion of the Court. 

This is an appeal from the issuance of Findings of Fact, 

Conclusions of Law and Decree by the Eleventh Judicial District 

Court, Flathead County. We affirm. 

We restate the issues on appeal: 

I. Did the District Court err in determining that the best 

interests of the children called for joint custody with Johanna to 

be the primary custodian? 

11. Did the District Court abuse its discretion by raising child 

support payments from $175 per month per child to $314 per month 

per child for future payments and in determining that Anthony owed 

back child support from 1990? 

Anthony C . Welzenbach (Anthony) and Johanna Bangeman (Johanna) 

lived together from 1975 until 1979. Two children were born to the 

couple, Corinna, born October 29, 1977, and Wilhelm, born September 

22, 1975. The couple entered into an agreement commencing in July, 

1981 in which Anthony would pay Johanna $175 per month per child. 

By August 5, 1985, Anthony owed $11,265.00 in back child 

support. The Eleventh Judicial District Court issued a writ of 

execution and Anthony's bank account was executed upon for the full 

amount. On December 22, 1986, another writ was issued by the 

District Court for $3,500 in back child support. However, Anthony 

did not have enough money in his account at that time for 

successful execution of the writ. 

On March 13, 1987, Johanna and Anthony entered into another 

agreement in which Johanna would receive a 1975 Volvo and Anthony 
promised to put $1,000 in trust for the children and to pay for 

Wilhelm's substantial orthodontist bill. In return, Anthony's 

child support would be lowered from $350 per month to $250 per 

month and all child support would be considered current. Anthony 

did not put the $1,000 in trust nor did he pay the orthodontist's 

bill. 

On July 20, 1988, Johanna filed a petition seeking to have 

Anthony show cause why he had not honored the agreement. Johanna 

also sought permission to move from Montana to Hawaii. Anthony 

initially objected, but later entered into another agreement with 

Johanna in which Anthony agreed to pay $175 per month per child as 

long as the children were living with her. If the children moved 

back to Montana with him, the payments were to stop, but Johanna 

did not have to pay support to Anthony during those times in which 

he had residential custody of the children. This agreement was 

approved by the court in an order dated November 3, 1988. 

Johanna moved to Hawaii with the children for the school 

year of 1988-89. Anthony also moved to Hawaii to be close to the 

children. The children stayed in Montana with Anthony during the 

next school year. In 1991, Johanna moved back to Montana, to a 

house very near Anthony's. From this time, the children have gone 

back and forth between their parents' homes at will. Each child 

has a bedroom in both houses and the children have been permitted 

to go to either home when they wanted. 

On April 15, 1991, Johanna filed a petition with the District 

Court seeking to recover $1,925 in back child support which she 
claimed that she was due for the time the children had been at her 

house. The court issued its Findings, Conclusions and Decree on 

May 4, 1993, requiring Anthony to pay support in the amount of $314 

per month per child, to pay Johanna's attorney's fees, to pay her 

the back child support he owed, and to accept a joint custody 

arrangement in which Johanna would be the primary custodian with 

Anthony to have the children about one third of the time. 

From the court's order, Anthony appeals pro se. 

I. 

Did the District Court err in determining that the best 

interests of the children called for joint custody with Johanna to 

be the primary custodian? 

Anthony argues that the court did not consider the wishes of 

the children in this matter. According to Anthony, the children 

want the arrangement to stay the way it is now. He claims that he 

has the children the majority of the time and that it is he who 

does the majority of the parenting of the teenage children. He 

does not want the court to set a rigid schedule that the children 

must follow. 

Johanna argues that the children need more predictability in 

their lives than is now present. She states that she and Anthony 

cannot agree on the structure that the children need so the court 

correctly determined what the structure would be for mealtime and 

bedtime . 

The court noted that Anthony had not correctly brought the 

issue of joint custody before the court because he had not 
submitted an affidavit seeking a change in custody. However, since 

Johanna had not objected to the joint custody, the court determined 

after talking to the children that joint custody would be 

preferable to sole custody by one parent. The court, however, 

determined that Johanna should be the primary caretaker, with the 

children staying with Anthony a little over a third of the time. 

Anthony objects not to the joint custody arrangement but to 

the very specific and structured court order dictating precisely 

when the children should be where. He argues that the children do 

not want the current arrangement changed and that the current 

arrangement does not reflect a situation where Johanna has the 

primary care for the children. 

We review a District Court's findings to determine whether 

they are clearly erroneous. In re Marriage of Olsen (1993)~ 257 

Mont. 208, 848 P.2d 1026. The court's findings are not clearly 

erroneous if they are supported by substantial evidence and the 

court has not misapprehended the evidence before it. Further, if 

the above are satisfactory, we will still determine that a court is 

clearly erroneous if we are left with the firm conviction that the 

court has made a mistake. Ragland v. Sheehan (1993) , 256 Mont. 

322, 846 P.2d 1000. Absent a clear showing of abuse of discretion 

a district court's award of child support will be upheld. In re 

Marriage of Jacobson (1992), 251 Mont. 394, 825 P.2d 561. 

The court issued the following pertinent findings: 

11. The court has interviewed the children, and having 

heard the evidence and considered the proposals of each 

party, the court adopts the proposal submitted by 

Johanna. 
. . . 13. In adopting the schedule, the Court is cognizant of 

the fact that the children will be spending a substantial 

period of time with Anthony. The Child Support 

Guidelines generally recognize that approximately onethird of the days in a year are to be spent with the 

parent who is to pay support. ... 

15. Johanna has presented to the court a calendar 

establishing the days Wilhelm and Corinna will be with 

either parent; the structure is reasonable and in the 

best interest of the children. This permits Wilhelm to 

reside with Johanna or Anthony from time-to-time, and it 

permits Corinna to be with Anthony a great deal of the 

time. In adopting the schedule, and in light of the 

proximity of the parentsr residences, each child can 

still request one parent to stop by to give rides to 

school or to have short visits. However, the child will 

know where he or she is to eat and sleep after school, on 

weekends and during the summer months. 

The court also indicated that Anthony and Johanna should have 

little contact with each other and should refrain from degrading 

each other in front of the children. The record indicates a 

continuing bitter relationship between the parents. 

Because of the couplers inability to agree on what the 

children needed by way of structure, the court set the structure. 

As far back as August 18, 1980, the Director of the Family Court 

Services indicated that "hard and fast" rules regarding custody, 

visitation and support should be made in this case because the 

parents could not reach any kind of agreement. The Director noted 

in his report to the court at that time, that it was important for 

the children to have a "normalization of residency." 

Johanna testified that she had tried to set up schedules for 

the children so that each parent would know when the children were 

to be in his or her home. Anthony, however, resisted any attempt 

to set up a schedule, preferring to make day-to-day arrangements. 
Both parties testified that after the 1989 school year when Johanna 

returned to Montana, the couple were unable to agree on how to 

structure the children's day-to-day living arrangements. It was, 

therefore, reasonable for the court to make such arrangements. The 

record indicates that the children needed structure. 

As part of the needed structure, the court determined that 

one parent should be designated the primary residential custodian. 

Both parents testified that joint custody was appropriate, but 

disagreed as to who should have primary responsibility for the 

children. While the record contains uncontested evidence to show 

that both parents cared for and loved these children, the original 

custody agreement designated Johanna as the residential parent. 

There is nothing in the record to indicate that this was an 

incorrect choice. 

Johanna actively sought more structure for the children while 

Anthony failed to cooperate with the court or Johanna in 

establishing that structure. Substantial evidence supports the 

court's choice of primary custodian. We note that Anthony 

testified that he did not object to the children having structure 

in their lives but only to his ex-wife's ability to determine that 

structure. However, Anthony did not present evidence at trial in 

opposition to the suggested structure presented by Johanna. 

Further, Anthony provided no evidence to indicate that he is 

the parent who spends the most money on the children and does the 

most parenting as he claims. Johanna provided the court with a 

specific set of forms necessary under the Uniform Child Support 
Guidelines. These forms showed the amount of money spent on the 

children and on her household budget in general. Anthony refused 

to fill out these forms. Johanna also submitted a proposed 

schedule for the children to follow during the upcoming year as far 

as meals and sleeping arrangements. Anthony provided nothing but 

declaratory statements about the money he has spent on the 

children. The court spoke with the children and the transcript of 

that conversation shows that both children cared equally for the 

parents and wanted to spend equal time with them. 

We conclude that substantial evidence exists that joint 

custody with Johanna as the primary custodian is in the best 

interest of the children. 

11. 

Did the District Court abuse its discretion by raising child 

support payments from $175 per month per child to $314 per month 

per child for future payments and in determining that Anthony owed 

back child support from 1990? 

Anthony argues that he now pays the majority of the expenses 

needed for the children and that he should not have to pay more 

support. He contends that the court abused its discretion in 

assessing him more support because the court failed to consider the 

amount of money he spends on both teenagers. Further, Anthony 

argues that the court did not consider his real financial status 

when raising his monthly support payments. Anthony argues that his 

yearly earnings are much less than the court finally determined. 

Because of the amount of money he spends on his children and 
because he alleges the original agreement setting the amount of 

$175 per month per child ended at 1990, Anthony believes that he 

should not have to pay retroactive child support. 

Johanna argues that Anthony did not cooperate with her when 

she was attempting to determine how much child support he should 

pay. She contends that he has been less than truthful in declaring 

his actual yearly earnings. Further, Johanna argues that the 

agreement setting the $175 total did not end at the year 1990 but 

was meant to continue until the children became emancipated or 

until the children were past the age of minority. 

The court made the following findings of fact: 

6. The minor children have resided with Johanna from 

time to time. Anthony was required to pay child support 

at the rate of $175.00 per month per child for the months 

the children have been with Johanna. As of April 15, 

1991, the date the present Petition was filed with this 

Court, Anthony owed Johanna the sum of $1,925.00. 

Johanna presented an accounting for said sum of money, 

and Anthony did not contest the time periods that the 

children were with him or Johanna. Anthony contended 

that the child support obligation should not be 

reinstated until there was a new court order. Anthony's 

position is untenable; the Court Order dated November 3, 

1988 automatically reinstated his obligation to pay child 

support during the time the children were with Johanna. 

7. Johanna has been forthright in disclosing all of her 

financial information for the purpose of completing the 

worksheet for the Uniform Child Support Guidelines. 

Anthony has not been as forthright in disclosing his 

finances. Since entry of the original child support 

order, he has acquired eight boats and ten parcels of 

real estate, including his residence. He is appealing 

federal tax liens that have been filed against him. At 

the same time, Anthony maintains that his annual income 

throughout that time period is approximately $30,000 per 

year, with the exception of 1990, when he made 

$75,515.00. He is closely affiliated with a corporation, 

with shares issued to his relatives, wherein he is 

identified as the business representative. 
8. Johanna has projected Anthony's gross income, both 

disclosed earnings and imputed income, to be $80,000 per 

year, but the Court was obliged to reject as hearsay her 

evidence in support of that contention. Anthony has 

countered by failing to provide the Court with a 

worksheet for determination of child support, and he 

argues that no monies are due from him to Johanna. Yet 

he projects a gross income of at least $30,000.00 per 

year. While the Court is not compelled to do a worksheet 

for Anthony, assuming a $6,120.00 deduction for taxes and 

FICA, with an addition of $5,000.00 for the 2% 

assessment, Anthony would have net available resources of 

$28,880.00, 26.1% of which is $7,538.00. Using his 

figures, he would be required to pay $628.00 in child 

support. 

9. The Court is therefore presented with a request from 

Johanna for child support in the sum of $1,122.00, and 

with a refusal of Anthony to pay any child support at 

all, but with his own Affidavit supporting an obligation 

to pay $628.00. 

The record shows that Anthony's financial Affidavit dated 

August of 1992, states that he makes an average of $1,990.00 net 

income per month. He testified to the accuracy of this figure. 

Both opposing counsel and the court used this figure to arrive at 

an appropriate figure for support of the two teenagers. The 

figure, based upon calculations from the Uniform Child Support 

Guidelines and amounting to $628 per month for both children, was 

presented to Anthony while he was on the stand. Although Anthony 

responded to opposing counsel's question, he did not deny that this 

figure was accurate. 

Anthony did not do any of the calculations from the Uniform 

Child Support Guidelines, nor did he fill out the appropriate forms 

so someone else could do the calculations. While the Guidelines 

are not part of the record on appeal, both the District Court and 

opposing counsel had the Guidelines and used them to arrive at the 
same figure--$628 per month--based upon the statements in Anthonyls 

financial affidavit. The evidence presented at trial shows that 

Anthony owns various pieces of realty valued at $192,000 as well as 

eight boats. Because Anthony refused to cooperate and submit the 

appropriate Uniform Child Support Guidelines forms, the court was 

forced to speculate as to how Anthony could have purchased valuable 

land and boats on the meagher salary he purported to make. 

Further, Anthony did not provide any evidence to counter the 

appropriateness of the $628 figure; nor did he present an 

alternative amount because he felt that he supported the children 

adequately now. 

Given Anthony's uncooperative attitude, his own financial 

affidavit specifying that he brings home an average of $1,990 per 

month, and his failure to present a cogent argument against the 

$628 amount, we hold that the District Court did not abuse its 

discretion in raising the child support payments from $350 per 

month to $628 per month. 

Anthony also argues that the agreement with Johanna concerning 

the $175 per month per child was only for the time period in which 

Johanna was in Hawaii. The agreement, according to Anthony, ended 

in 1990. Johanna contends that the agreement specifically states 

that the $175 per month per child was to last until the children 

reached 18. The court interpreted the agreement in the same way 

Johanna did. Further, the court stated in its court order issued 

in November of 1988 that the order had the effect of cementing this 

total as the continuing support payment for which Anthony should be 
responsible. 

The record indicates that the original 1981 order of the court 

set the sum of child support at $175 per month per child. The 

record also shows that the parties entered into a stipulation dated 

March 13, 1987. The pertinent part of that stipulation states: 

2. That Petitioner has entered into a contract to pay 

for the orthodontic care of Wilhelm, which will require 

substantial monthly payments, and by reason of this 

indebtedness, it is agreed that the child support shall 

be reduced from $350 per month to $250 per month for a 

period of 32 months, commencing February 1, 1987 and 

continuing through the 1st day of September, 1989. 

Commencing with the 1st day of October, 1989, the child 

support obligation shall once again be $350.00 per month, 

or $175.00 per month per child, continuing as to each 

child until such time as the child has reached the age of 

majority and has graduated from high school, or becomes 

emancipated, or dies, whichever first occurs. 

On March 19, 1987, the court issued an order based on this 

stipulation which stated: 

2. That commencing February 1, 1987, and continuing 

through the month of September, 1989, Petitioner shall 

pay to Respondent, as and for child support, the sum of 

$125.00 per month per child, due and payable on or before 

the 1st day of each month; 

3. That commencing October 1, 1989, Petitioner shall pay 

to Respondent, as and for child support, the sum of $175 

per month per child, due and payable on or before the 1st 

day of each month and continuing as to each child until 

such time as the child reaches the ase of majority and 

has graduated from high school, or becomes emancipated, 

or dies, whichever first occurs; (Emphasis added.) 

A year later in April, Johanna filed an application for hearing on 

contempt because Anthony had not paid the orthodontist and was 

behind in child support. The court issued an order to show cause 

why Anthony should not be held to its previous 1987 court order. 

After the issuance of this order and before the hearing, Anthony 
paid the child support he owed. 

In August of 1988, Johanna filed a petition to modify the 

original 1987 stipulation because Anthony had not paid $1,000 into 

a trust account for the children, had not paid the orthodontist and 

had not paid child support. The court issued another show cause 

order to which Anthony vehemently objected and unsuccessfully 

sought temporary custody of the children. 

In September of 1988, before the court could rule at a 

hearing, the couple submitted a signed stipulation making special 

provisions for their children for a period of several years. The 

document stated: 

7. Beginning September 1, 1988 and continuing each 

month thereafter, and so long as the children reside with 

Respondent, Petitioner shall pay $175.00 per month per 

child, due and payable on or before the 1st day of each 

month and continuins as to each child until such time as 

the child reaches the ase of maioritv and has graduated 

from high school, or becomes emancipated, or dies, 

whichever first occurs . . . (Emphasis added.) 

Anthony objects to using this 1988 stipulation because one part of 

the document states: 

10. The time frame of this agreement is to provide for 

the care, education and support of the children through 

the end of the school year 1990. 

Anthony argues that because of this limitation in the agreement, he 

was released from any responsibility as of 1990 and does not owe 

back child support. 

The court issued an order on November 3, 1988, stating that 

the parties should abide by the above referenced stipulation. The 

District Court in its findings and conclusions based upon the 

August, 1992 trial involving custody and child support, stated that 
its 1988 court order and the partiest stipulation both indicate 

that the parties agreed to the amount of $175 per month per child 

until the children reached the age of majority. Therefore, the 

court determined that Anthony owed back child support from the time 

of this court order. 

We have carefully reviewed the 1988 stipulation and the 

ensuing court order. We conclude that the District Court was 

correct. The document's blanket statement concerning $175 child 

support was followed by a detailed description of what the parties 

had planned in terms of residence in Hawaii and then in Montana for 

the next two school years. The particular plans involving the 

mother's trip to study in Hawaii and the father's subsequent 

custody of the children during the following year, is very 

explicit. The special considerations concerning residence 

concluded at the end of the 1989-1990 school year. 

It is obvious to us that the parties understood that the next 

two years required some special considerations for the children 

because of the mother's trip to Hawaii. The need for special 

considerations would be over in 1990 and the children would resume 

their ordinary routine with Anthony to pay $175 per month per child 

in child support. Any other reading of this stipulation would be 

ludicrous. 

Anthony has not paid child support since 1990 and he, 

therefore, owes the $175 per month per child total for all times in 

which Johanna had the children. We conclude that the District 

Court did not abuse its discretion in assessing past child support 
from 1990. 

Af f irmed. 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1988 Internal Operating Rules, this decision shall not be cited as 

precedent and shall be published by its filing as a public document 

with the Clerk of this Court and by a report of its result to the 

West Publishing Company.