No. 94-470

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

IN RE THE PATERNITY OF W.L.,

a Minor:

ELIZABETH LAMDIN,

Petitioner and Appellant,

ANGELO FERRARO,

Respondent and Respondent.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

The Honorable William J. Speare, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Donald L. Harris, Crowley, Haughey, Hanson,

Toole and Dietrich, Billings, Montana

For Respondent:

Mark D. Parker, Parker Law Firm, Billings,

Montana

Filed:

Submitted on Briefs: February 16, 1995

Decided: April 12, 1995
Chief Justice J. A. Turnage delivered the Opinion of the Court.

Elizabeth Lamdin appeals an order in which the District Court

for the Thirteenth Judicial District, Yellowstone County, declined

to order Angelo Ferraro to pay back child support in addition to

amounts he has already paid. We affirm.

The issue is whether the court erred in waiving past child

support under § 40-6-116(4) (c), MCA.

Elizabeth Lamdin, a registered nurse who lives in Billings,

Montana, is W.L.'s mother and has raised him since his birth in

January 1991. During that time, Angelo Ferraro, W.L.'s father, has

practiced as a cardiologist in Billings and then in Oklahoma and

Washington. He has visited W.L. about six times per year. Lamdin

and Ferraro never married.

From W.L.'s birth until his first birthday, Ferraro contributed $2,000 per month to Lamdin for W.L.'s support. Lamdin stayed at

home to raise W.L. during that time, because both parents believed

it was best for their son. In February 1992, Ferraro reduced his

support payment to $1,000 per month and Lamdin returned to work.

Lamdin filed this paternity action shortly thereafter. Ferraro

paid child support of $1,000 per month until the District Court set

child support at $950 per month in October 1992. That judgment was

appealed to this Court on several issues. See In re Paternity of

W.L. (1993), 259 Mont. 187, 855 P.Zd 521. We remanded for

calculation of past and future child support.

On remand, Ferraro and Lamdin each presented their calculations of the amounts of past and future child support which should

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be ordered pursuant to the child support guidelines promulgated by

the Montana Department of Social and Rehabilitation Services.

Their calculations differed because of differences in their views

of the proper income figures and variances, deductions, exemptions,

and exceptions attributable and allowable to each of them under the

guidelines.

For purposes of calculating back child support, both Ferraro

and Lamdin divided the time from W.L. 's birth to the date of the

hearing into several segments. This was necessary because of

interim changes in the child support guidelines and in each of

their incomes and expenses. Under Ferraro's calculations, he was

responsible for child support in monthly amounts ranging from $131

to $1,476 for the time since W.L.'s birth. Lamdin calculated that

Ferraro was responsible for past child support ranging between

$1,725 and $1,988 per month. Under Lamdin's calculations, after

considering what he had already paid, Ferraro still owed her

$25,584 in back support. Under Ferraro's calculations, he had

overpaid by $20,774.

The District Court ordered Ferraro to pay Lamdin $1,341 per

month in future child support. This amount was lower than the

amount proposed by Lamdin but higher than that proposed by Ferraro.

The court did not order Ferraro to pay any back child support. In

its findings, the court stated:

The Court declines to award past child support in

addition to the support previously paid by Ferraro. In

this respect the Court has concluded that it should limit

Ferraro's liability for past support to the proportion of

expenses which he has already paid in accordance with

Section 40-6-116(c) [sic] M.C.A. To the extent that any

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amount for varying periods of time may deviate from the

child support guidelines, the Court finds it would be

unjust to Ferraro and inappropriate in this case to

require additional past support under Section 40-6-

116(6) (a) M.C.A. . .

. . .

The amounts paid by Ferraro have met or exceeded the

actual living expenses of [W.L. 1. Lamdin testified that

the total living expenses attributed to LW.L.1 is

currently $1,092 per month. TI?at amount seems liberal to

the Court. Such amount should be greater than it was in

the child's early life. Of this amount day care consumed

$330 per month. Therefore the previous amounts paid by

Ferraro have substantially met or exceeded the actual

living expenses attributed to [W.L.I.

. .

One of the goals of a child support calculation

where parents have significant income, as here, is that

the child should continue to maintain a standard of

living as if his parents were living together. Here the

parents never did live together. The Court is of the

opinion that future child support should be paid for the

purpose of maintaining for [W.L.] a standard of living

appropriate to the income of his parents. This is

accomplished by assessing such support in accordance with

the child support guidelines. However, for past years

[W.L.] has lived very well on the support already paid by

Ferraro. Lamdin has not accumulated debt by reason of

any failure of Ferraro to pay a greater support.

Lamdin appeals only the portion of the District Court's order

waiving additional back child support

Did the court err in waiving past child support under § 40-6-

116(4) (c), MCA?

Section 40-6-116, MCA, provides, in relevant part:

Judgment or order. (1) The judgment or order of the

court determining the existence or nonexistence of the

parent and child relationship is determinative for all

purposes.

.

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(3) . . .

(b) Except when the financial responsibility of a

responsible parent is in the process of being determined

pursuant to the administrative procedure provided in

40-5-225, the judgment or order must contain a provision

concerning the duty of child support. .

(4) (a) Support judgments or orders ordinarily must

be for periodic payments, which may vary in amount.

(b) In the best interest of the child, a lump-sum

payment or the purchase of an annuity may be ordered in

lieu of periodic payments of support.

(c) The court may limit the father's liability for

past support of the child to the proportion of the

expenses already incurred that the court considers just.

(5) In determining the amount to be paid by a parent

for support of the child and the period during which the

duty of support is owed, a court enforcing the obligation

of support shall consider all relevant facts, including:

(a) the needs of the child, including medical needs;

(b) the standard of living and circumstances of the

parents;

(c) the relative financial means of the parents;

(d) the earning ability of the parents;

(e) the need and capacity of the child for education, including higher education;

(f) the age of the child;

(4) the financial resources and the earninq ability

of the child;

(h) the responsibility of the parents for the

support of others;

(i) the value of services contributed by the

custodial parent;

(j) the cost of day care for the child; and

(k) any custody arrangement that is ordered or

decided upon.

(6) (a) Whenever a court issues or modifies an order

concerning child support, the court shall determine the

child support obligation by applying the standards in

this section and the uniform child support guidelines

adopted by the department of social and rehabilitation

services pursuant to 40-5-209. The guidelines must be

used in all cases, including cases in which the order is

entered upon the default of a party and those in which

the parties have entered into an agreement regarding the

support amount. Averified representation of a defaulting

parent's income, based on the best information available,

may be used when a parent fails to provide financial

information for use in applying the guidelines. The

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amount determined under the guidelines is presumed to be

an adequate and reasonable support award, unless the

court finds by clear and convincing evidence that the

application of the standards and guidelines is unjust to

the child or to any of the parties or is inappropriate in

that particular case.

(b) If the court finds that the guideline amount is

unjust or inappropriate in a particular case, it shall

state its reasons for finding that the application of the

standards and guidelines is unjust to the child or a

party or is inappropriate in that particular case.

Similar reasons must also be stated in a case in which

the parties have agreed to a support amount that varies

from the guideline amount. Findings that rebut and vary

the guideline amount must include a statement of the

amount of support that would have ordinarily been ordered

under the guidelines.

(c) If the court does not order a parent owing a

duty of support to a child to pay any amount for the

child's support, the court shall state its reasons for

not ordering child support.

The formula for determining an appropriate amount of child support

is further detailed in the child support guidelines adopted by the

Department of Social and Rehabilitation Services pursuant to 5 40-

5-209, MCA. See 46.30.1501 through .1549, ARM. While the statute

and guidelines attempt to be specific for every possible situation,

the statute reserves some discretion to the district court. E.g.,

U [tlhe court may limit the father's liability for past support of

the child to the proportion of the expenses already incurred that

the court considers just" under subsection (4) (c); 'I Ii1 f the court

finds that the guideline amount is unjust or inappropriate in a

particular case . . . I' under subsection (6) (b); and 'I [ilf the court

does not order a parent owing a duty of support to a child to pay

any amount for the child's support .I' under subsection (6) (cl.

Lamdin's argument on appeal is based primarily upon the

absence in the court's order of a statement of the amounts of past

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child support which would have been due under the child support

guidelines. Lamdin argues that this omission violates subsection

(6)(b) above and the law of the case as established in this Court's

opinion in the first appeal. She also argues that the court's

order is fatally flawed because it fails to state that divergence

from the guidelines was justified by clear and convincing evidence,

as required under subsection (6) (a), above.

In this Court's opinion on the first appeal of this case, we

discussed the District Court's failure to apply the child support

guidelines as to future support. In then briefly discussing the

issue of past support, we wrote:

As discussed under Issue I, departures from the guidelines must comply with § 40-6-116(6) (a) and (b), MCA. On

remand, the District Court is directed to make such

adjustments to its findings, conclusions, and order

concerning past child support as are necessary as a

result of this Opinion.

Paternity of W.L., 855 P.2d at 523.

Section 40-6-116(4) (c), MCA, which specifically addresses back

child support, was not cited in the first appeal. The statute does

not specify whether all of the provisions of subsections (6) (a) and

(b) must still be met when the provisions of subsection (4) (c),

specifically relating to past support, are applied. In view of the

statement in subsection(6) (a) that child support obligations shall

be determined "by applying the standards in this section," which

reference includes subsection (4) cc), it is arguable whether all of

the provisions of subsections (6) (a) and (b) still apply. However,

we conclude that even if Lamdin is correct as to the intent of the
statute, that does not control the resolution of this appeal, for

the following reasons.

No civil case shall be reversed by reason of error which would

have no significant impact upon the result. Rule 14, M.R.App.P.;

In re Marriage of Cannon (1985), 215 Mont. 272, 275, 697 P.Zd 901,

903. Where there is no showing of substantial injustice, the error

is harmless and may not be used to defeat the judgment. In re

Marriage of Green (19791, 181 Mont. 285, 289, 593 P.2d 446, 449.

We are not here presented with a case in which there was

insufficient evidence as to the proper amount of past child support

under the child support guidelines. The District Court was

presented with abundant evidence on that point. The amount of

additional back child support ordered (none) is within the range of

the evidence presented at trial.

Further, had the District Court set forth in its order the

amounts of back child support required under the child support

guidelines, and stated that clear and convincing evidence supported

a variance, the court would have retained the discretion under

subsection (4) (c) to limit past support. The court's order sets

forth ample justification for its decision not to award additional

past child support. As the court pointed out, the amounts actually

paid by Ferraro in the past substantially met or exceeded W.L.'s

actual past living expenses as described at trial, without the

necessity of including anv monetary contribution by Lamdin.

We conclude that there has been no showing of substantial

injustice as a result of the court's failure to set forth the

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guideline amounts for past child support. We similarly conclude

that there has been no showing of substantial injustice as a result

of the court's failure to set forth the standard of clear and

convincing evidence.

Lamdin also maintains that Montana's statutory scheme violates

W.L.'s right to equal protection. She contends Montana's laws

discriminate between legitimate and illegitimate children in that

the statutes concerning child support following a dissolution of

marriage do not include a provision equivalent to 5 40-6-116 (4) (cl,

MCA. This argument was first raised on appeal. Lamdin did not

notify the Montana Attorney General of her challenge to the

constitutionality of these statutes at the district court level, as

required under § 27-8-301, MCA. Absent such notice, and absent

development of the record on this issue at the trial court level,

we will not consider the argument on appeal. See Femling v.

Montana State University (1986), 220 Mont. 133, 139, 713 P.2d 996,

999.

No useful purpose would be served by remanding this case to

require the District Court to insert into its order its calculations of the amounts of past child support due under the child

support guidelines and to recite the clear and convincing evidence

standard for variance from the guidelines. The court's decision

not to award additional past support is justified under the

rationale set forth in the court's findings, conclusions, and

order.

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Justice W. William Leaphart, dissenting.

I dissent. The majority has affirmed the District Court in

waiving past child support under § 40-6-116(4) (c), MCA. Lamdin

contends that the District Court erred by waiving past due child

support without first calculating what those support payments would

have been, as required by 5 40-6-116(6) (b), MCA. I agree.

Subsection (6)(a) very clearly requires that the guidelines must be

used in all cases. Subsection (6) (b) requires that, "Findings that

rebut and vary the guideline amount must include a statement of the

amount of support that would have ordinarily been ordered under the

guidelines." Subsection (c) then requires that the court, if it

does not order the parent owing a duty of support to pay any amount

for support, "shall state its reasons for not ordering child

support." The obvious intent is to require the District Court to

first establish what the guidelines require by way of child support

before the court determines whether it is appropriate to vary or

waive that amount. Without first knowing what the guidelines

require, it is impossible for the District Court (in the first

instance) or this Court (on appeal) to know whether a waiver or

variance is "unjust or inappropriate" in a particular case. In the

absence of guideline calculations, this Court is left with no

reference point in determining whether the District Court‘s waiver

amounts to a "substantial injustice."

The legislature has stated that the guidelines "must be used

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in all cases."

concept leaves

ulMustc' is mandatory and "all" means every. Neither

room for any exceptions.

Justice James C. Nelson joins in the foregoing dissent of

Justice W. William Leaphart.

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