NO. 88-502 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

IN RE THE MARRIAGE OF 

KATHLEEN LOIS PENNING, 

Petitioner and Respondent, 

and 

DALE EVERETT PENNING, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Russell Fillner, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Andrew M. Small, ~illings, Montana 

For Respondent: 

,.Jack E. Sands; Sands Law Firm, Billings, Montana 

Submitted on Briefs: June 1, 1989 

-- - --I , 

L- . J Decided: June 30, 1989 

i' 

' Clerk 
Mr. 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 to Kathleen. 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 prior marriage. 

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 the past, 

and currently has no special skills which would enable her to 

take a job that would adequately cover her child care 

expenses. The primary caretaker of the parties children has 

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 custodian of the parties' children. 

Dale presents the following issues: 

(1) Whether the District Court erred in naming 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 to Kathleen? 

(4) Whether the District Court erred in awarding 

attorney fees to Kathleen? 

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 the children inflicted by Kathleen as by required by 

§ 40-4-212 (6) , MCA. Testimony indicated that Kathleen has, 

on occasion, slapped or spanked the children. Testimony also 

indicated that some of the children have suffered from diaper 

rash, and that one child, while left unattended by Kathleen, 

fell from the parties' van to the pavement. The only other 

incident of alleged abuse involves punishment meted out by 

Kathleen for two of the children's behavior in playing 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 the matter on their noses and made them stand in the 

corner for five minutes. 

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 

here based on the required findings under 5 40-4-212(6), MCA. 

Dale further contends that the lower court committed 

reversible error in finding: 

[Kathleen's] home and interaction with the children 

has been observed by a number of witnesses. All of 

whom testified that she is a aood mother. 
Dale points out that not - all of the witnesses 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 good mother, other witnesses held 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, 699 P.2d 79, 82. Nor will we 

reverse for incomplete or partially erroneous findings unless 

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 

report properly places 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 residential custodian. Several witnesses 
testified favorably concerning Kathleen's parenting skills. 

One stated: 

Q. Have you had occasion to be in her home? 

A. Yes. On several occasions I have visited 

her home. 

Q. And have you observed her and her children 

in her home? 

A. Yes, quite often. 

Q. Could you describe the home environment 

there? 

A. Well, yes. It always strikes me that it 

is a very difficult situation that she is in. She 

had the five children, and it always struck me how 

remarkably she controlled that. 

Another witnesses testified: 

Q Could you describe the relationship 

between Kathy and her children? 

A. They seem to be very close. I don't know. 

She was just a real good 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 affirm on this issue. 

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 

each month. 
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 arriving at Dale's net income for determining 

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 

in discounting Dale's assertions to 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 reviewable on 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 of his 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 obligations would exceed the amount arrived at by 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, the Guidelines: 

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 the Matter of Adoption of a Uniform District Court Rule on 

Child Support Guidelines, Order of the Supreme Court of 

Montana, No. 86-223, Filed January 13, 1987. Obviously, 

there exists no reversible error based on the improper use of 

the Guidelines here. Thus, we affirm on this issue. 

111. 

Dale contends under this issue that the lower court 

erred in setting the amount of maintenance 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 required by 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 

expenses with the close friend he employs for $12.50 an hour. 

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 that while on visitation 

with Dale, the children have gone from Dale's close friend's 

house to his house to play. This testimony is sufficient to 
sustain the District Court's conclusion that Dale and his 

close friend/employee share expenses. 

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 

discretion by awarding attorney fees to Kathleen. Again, the 

focus of the argument concerns Dale'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. 

<I ciief justice - -