NO. 88-502
INTHE SUPREME COURTOF THE STATE OF MONTANA
1989

INRE THEMARRIAGE OF KATHLEEN LOIS PENNING, Petitioner and Respondent, and DALE EVERETT PENNING, Respondent andAppellant.

APPEAL FROM: District Courtof the Thirteenth JudicialDistrict, Inand for the County of Yellowstone, TheHonorableRussell Fillner,Judgepresiding.
COUNSELOF RECORD:
ForAppellant:
Andrew M. Small,~illings, Montana
For Respondent: ,.JackE. Sands; SandsLawFirm,Billings,Montana

Submitted on Briefs: June 1, 1989

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# . J Decided: June 30, 1989

i' ' ClerkMr. Justice 

### R. C. McDonough delivered the Opinion of the Court.

This appeal from the Thirteenth Judicial District, Yellowstone County, concerns issues arising from the divorce of Kathleen and Dale Penning. Dale appeals the District Court's decisions on custody, the proper amount of child support and maintenance, and the propriety of an award of attorney fees toKathleen. We affirm. The parties married on March 27, 1981. The District Court dissolved the marriage on April 21, 1988. Four children,aged from one year old to six years old, were born of the marriage. Kathleen also has an eight-year-old child from a priormarriage. Dale contracts work at the Exxon refinery in Billings, and receives approximately $47,000 annually. Dale employs a person he describes as a close friend for unskilled or semi-skilled labor at $12.50 an hour. The parties dispute the net income retained by Dale from the $47,000 in earnings. Kathleen has performed only unskilled labor in thepast, and currentlyhas no special skillswhichwould enableher to take a job that would adequately cover her child care expenses. The primary caretaker of the parties childrenhas been Kathleen. The lower court awarded Kathleen $260.00 per month, per child in child support, and $400.00 per month in maintenance. The lower court also named. Kathleen the residential custodianof the parties' children.

Dalepresents the following issues:

(1) Whether the District Court erred innaming Kathleen residential custodian? (2 ) Whether the District Court erred in awarding Kathleen $260.00 per month per child for child support?(3) Whether the District Court erred in awarding maintenance toKathleen? (4) Whether the District Court erred in awarding attorney feestoKathleen?

I. Dale makes several contentions on the issue of the proper residential parent for implementing the joint custody provisions of the decree. First, Dale contends that the District Court failed to consider the presence of physical abuse of thechildren inflictedby Kathleen asby required by § 40-4-212 (6)

## , MCA. Testimony indicated that Kathleen has,

on occasion, slapped orspanked thechildren. Testimony also indicated that some of thechildrenhave suffered from diaper rash, and that one child, while leftunattended by Kathleen, fell from the parties' van tothe pavement. The only other incident of alleged abuse involves punishment meted out by Kathleen for two of the children's behavior inplaying with dog feces. Kathleen testified that the parties' dog messed

on the floor of their basement. Her two young boys discovered the mess and, according to Kathleen, managed to become covered with it. Kathleen testified that she smeared

some of thematter on theirnoses and made them stand inthe

corner for fiveminutes. We hold that the District Court acted within its discretion by refusing to find that these incidents constituted child abuse. Thus, no error may be predicated herebased on therequired findingsunder 5 40-4-212(6), MCA. Dale further contends that the lower court committed reversibleerror infinding: [Kathleen's] home and interactionwith thechildren has been observed by a number of witnesses. Allof whom testified that she isa aood mother.Dale points out that not 

### - all of thewitnesses testified that Kathleen was a good mother. We disagree that the District Court erred in interpreting the testimony of the witnesses. Witnesses testifying for Dale criticized Kathleen's parenting skills. However, they also admitted that Kathleen had good abilities in some areas of parenting. Moreover, even if all of Dale's witnesses testified that Kathleen was not a goodmother,other witnessesheld the opposite opinion. Thus, the record would only reflect conflicting evidence on this issue, and it is the function of the District Court to resolve such conflicts. We will not reverse the decision of the District Court on what constitutes a custody arrangement in the best interest of the children based on the proper weight assigned to conflicting evidence. In re Marriage of Rolfe (19851,216 Mont. 39,45, 699P.2d 79, 82. Nor willwe
reverse for incompleteorpartially erroneous findingsunless appellant demonstrates the District Court failed to base its decision on substantial evidence. In re Marriage of Saylor

(Mont. 1988), 756 P.2d 1149, 1151, 45 St.Rep. 1062, 1065. Dale also contends that the lower court erred in relying
on a report from a Court Services Investigator in its findings because the report was never admitted into evidence. Kathleen responds that Dale stipulated to a Court Services investigation which was to "make appropriate recommendations to the Court." We agree that Dale's stipulation to the reportproperlyplaces it in the record as evidence. Dale asserts that his citations to the record show that substantial evidence does not support the District Court's decision to make Kathleen the residential parent. We disagree. By and large, witness testimony supports the conclusion that the best interests of the children will be served by making Kathleen the residentialcustodian. Severalwitnessestestified favorably concerning Kathleen's parenting skills. One stated:

Q. Have you had occasion tobe inher home?
A. Yes. On several occasions I have visited her home. Q. And have you observed her and her children inher home?
A. Yes, quiteoften. Q. Could you describe the home environment there?
A. Well, yes. It always strikesme that it is a very difficult situationthat she isin. She had the five children, and it always struckme how remarkably she controlled that.
Another witnesses testified:


### Q Could you describe the relationship between Kathy and her children?
A. They seem tobe very close. I don't know. She was just a realgood mother.
Some witnesses having knowledge of Dale's parenting skills indicated that Dale did not provide adequate care for the children. Therefore, the decision of the District Court on the residential parent is supported by substantial evidence and we affirmon thisissue.

11. Dale asserts that the District Court erred in determining the amount of child support. The lower court calculated Dale's support obligation as $260.00 per child eachmonth.

### In determining Dale's gross income, the District Court refused to deduct the $12.50 

### per hour, 20 

### hours per week, employment expenses Dale incurs for employing his close friend. The lower court allowed such expenses at $5.00 

### per hour. This is the main objection to the lower court's calculations in arrivingatDale's net income fordetermining child support. We hold that the lower wage figure properly reflects evidence in the record that the unskilled or semi-skilled labor performed by Dale's close friend is worth only $5.00 

### per hour. Thus, the lower court acted correctly indiscountingDale's assertionsto the contrary. Dale also objects to the addition of workers' compensation benefits as income for determining his ability to make support payments. He claims that he no longer receives the benefits. Kathleen asserts that the issue is not properly reviewable on this appeal. We agree that the existence of a reduction in Dale's income following the proceedings in the lower court cannot be considered as an issue reviewableon this appeal. Dale also objects generally to the lower court's award of support in light of the Guide for Determination of Child Support Obligations,adopted and approved for use by district courts by this Court on January 13, 1987. 

### Dale claims that the District Court misapplied the Guidelines by failing to subtract the proper amount ofhis business expenses from his gross income to arrive at his net income. Kathleen responds that under the proper application of the Guidelines, Dale's support obligationswould exceed the amountarrived atby the lower court. The Guidelines mandate that only "legitimate" business expenses be subtracted to arrive at net income. Guide for Determination of Child Support Obligations, Part 5. 

### As previously discussed, there exists some controversy over the

### proper amount of legitimate expenses incurred by Dale. Moreover, theGuidelines:

are not binding upon such judges and officials

[using the guidelines]. We so order to prevent appeals based upon claimed failure to observe or follow the guidelines.
In theMatter ofAdoption of aUniformDistrict CourtRule on Child Support Guidelines, Order of the Supreme Court of Montana, No. 86-223, Filed January 13, 1987. Obviously, there existsno reversible error based on the improperuse of the Guidelineshere. Thus,we affirm on this issue.

111. 

### Dale contends under this issue that the lower court erred in setting the amount ofmaintenance to be received by Kathleen at $400.00 per month. According to Dale, the lower court erroneously failed to consider Dale's ability to "meet his needs while meeting those of the spouse seeking maintenance," as requiredby S 

### 40-4-203(2)(f),MCA. The thrust of Dale's argument on this point is that the lower court erred in increasing the amount of available income for maintenance by finding that Dale was sharing expenseswith the close friendhe employs for $12.50 anhour. Dale contends that evidence in the record demonstrated that he and the friend do not share expenses. We disagree. At the trial, one of Dale's witnesses testified that he had stayed with Dale the weekend prior to the trial, and that Dale's close friend was present in the household during the weekend. Another witness testified thatwhile on visitation with Dale, the children have gone fromDale's close friend's house to his house to play. This testimony is sufficient tosustain the District Court's conclusion that Dale and his close friend/employee shareexpenses. Dale also objects to the lower court's decision on the ability of Kathleen to provide for the children's financial needs. The record does not contain evidence sufficient to support this assertion. On the contrary,evidence indicates Kathleen is patently unable to hold down a job which would bring in income sufficient to reduce Dale's obligation. Thus,we reject Dale's contentions on this issue.

IV. Dale argues that the District Court abused its discretionby awarding attorney fees to Kathleen. Again, the focus of the argument concernsDale's finances, this time in regard to his ability to pay the fees. We have already held that the District Court acted within its discretion in determining Dale's income. Thus,we affirm.



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