No. 90-502 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

IN RE THE MARRIAGE OF JOAN WERSLAND

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# -3t P,, * and Cross-Appellant, 

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-.:' + KENNY WERSLAND, A el I .ii Respondent and Appellant.

'4~4;~.4; APPEAL FROM: District Court of the Seventh Judicial District, In and for the County of Richland, The Honorable Dale Cox, Judge presiding.

COUNSEL OF RECORD: For Appellant: Diane E. Savage; Habedank, Cumming, Best & Savage, Sidney, Montana For Respondent: Richard A. Simonton; Simonton, Howe & Schneider, Glendive,Montana

Filed: Submitted on briefs: March 28, 1991 Decided: July 2, 1991

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ClerkJustice William E. Hunt, Sr., delivered the opinion of the Court. Kenny Wersland appeals from a decree of dissolution entered in the Seventh Judicial District Court, Richland County, and the subsequent order amending that decree. Joan Wersland crossappeals. We affirm. The following questions are presented on appeal: 1. Did the trial court errby imputing income toKenny inthe determination of his child support obligation? 2. Did the trial court err in failing to deduct income taxes from Kennyls imputed income in the determination of his child support obligation? 3. Did the trial court abuse its discretion when it retroactivelyreducedKennylschild support obligation inthe final decree? 4. Was the property division equitable? 5. Is Joan entitled to attorney's fees and costs on appeal? The parties to this dissolution, Kenny and Joan Wersland, separated in September 1987. At the time of separation, Joan was employed as a secretary with the local school system, and Kenny worked as a contractor. They have three children, currently ages 16, 12, and 7. During the pendency of the dissolution, Joan petitioned the court for a temporary order regarding custody, child support, maintenance,and attorneylsfees. On February 8, 1989, the courtissueda temporaryorderdesignating jointcustody of thechildren, with primary residence of the two youngest with themother and the oldest with the father. Kenny was ordered to pay Joan $400 per month child support, retroactive to January 1, 1989, and $400 attorney's fees. The matter was tried, and on January 11, 1990, the court issued findings, conclusions and a decree which, among other things, reduced Kenny's child support obligation from $400 per month to $316permonth, retroactivetoJanuary 1, 1989. Both Joan and Kenny moved to alter or amend the decree. On August 1, 1990, the court issued an amended decree. Both parties appeal.

Did the trial court err by imputing income to Kenny in the determination of his child support obligation? The court found, in its final decree, that because Kenny's earning capacity exceeded the demonstrated net income of his construction business by $6085, that amount should be imputed to him for thepurposes of determining child support. The courtmade thisdeterminationon thebasis of the standardwage for carpenters inthearea. Kennymaintains that becauseno evidencewaspresented that indicated that carpentry work could be found in the Sidney

area at the time, it was error to impute income to him. The Uniform District Court Rule on Child Support Guidelines, 227 Mont. 1 (1987)

## , (hereafterGuidelines) states:In cases where the obligor parent is not working or is not working at full earning capacity, the reasons for sucha limitationon earnings should be examined. Ifthe reason is amatter of choice,the local jobmarket should be reviewed to determine what a person with the obligor parent's trade skillsand capabilitiescouldearn. Those typical earnings can then be imputed to the obligor parent for use in this guide. We have stated that,using actual earnings as a guideline, it is incumbent on the district courts to realistically assess parents1 earning power and determine child support accordingly. In re the Marriage of Gebhardt, 240 Mont. 165, 172, 783 P.2d 400, 404 (1989). However, courts are also I1obligedto consider the employment opportunities available in the local job market for unemployed and under-employed parents.I1 Gebhardt, 240 Mont. at 172, 783 P.2d at 404. Here, the court assessed Kenny's actual earnings, which have been substantial at times, heard testimony regarding the local job market, which currently is poor, and arrived at a sumto impute. Having consideredthe factorsrequired by the Guidelines for imputed income, and finding adequate testimony in the record to support its decision,we determine that the trial court did not err.

Did the trial court err in failingtodeduct income taxes from Kennylsimputed income in the determination of his child support obligation? Kennymaintains that thecourt shouldhavededucted incometax from the additional amount of earnings imputed to him, thuslowering his child support payments by $16.28 per month. This interpretation of the way to properly calculate child support misconstrues the child support statutes and the Guidelines. Sections 40-4-204 and 40-6-116, MCA, contain broad standards for the determination of child support. Without reproducing them in their entirety here, the statutes do little more than offer guidance to those involved in the support determination. The ~uidelines, however, contain a suggestedprocedure forpredictable and equitable calculation which lfcalculates child support as a share of each parent's income estimated to have been spent on the child if theparents and childwere living in an intact household." Guidelines, 227 Mont. at 4. Pursuant to the ~uidelines, we stated in In re the Marriage of Mitchell, 229 Mont. 242, 247, 746 P.2d 598, 601 (1987): When analyzing income under the Guidelines, it is the disposable income of the parent,andnot their incometax returns alone, which need be considered by the court.

(Emphasisadded). Kenny is attempting to lower his support payments simply by reducinghis income fortaxpurposes. As we indicated inMitchell, and subsequently in In re the Marriage of Gray, 242 Mont. 69, 788 P.2d 909 (1990)

## , and in In re the Marriage of Stewart, 243 Mont. 180,793 P.2d 813 (1990)

## , losses allowable for income tax deduction

are not necessarily to be used to calculate child support. Mitchell, 229 Mont. at 247, 746 P.2d at 602. The District Courtdid not abuse itsdiscretion in failingtodeduct incometaxes from Kennylsimputed income.

Did thetrial court abuse itsdiscretion when it retroactively reduced Kenny's child support obligation in the final decree? Section 40-4-208(1), MCA, states: Except asotherwiseprovided in 40-4-201(6), adecreemay be modified by a court as tomaintenance or support only as to installments accruing subsequent to actual notice to the parties of themotion formodification. Joan claims that the District Court was in error when it ordered that child support payments be reduced retroactively from $400permonth to $316per month. Sherelies on In re theMarriage of Rolfe, 216 Mont. 39, 699 P.2d 79 (1984), where we reversed a District Court decision that retroactivelymodified child support payments. InRolfewe stated that, pursuant to fr 40-4-208(1), MCA: The District Court did not have the power on March 2, 1984 to modify payments resulting from a July 9, 1983 order. Rolfe, 216 Mont. at 49, 699 P.2d at 85. The distinction in the facts before us is that here the court

was revising a temporaryorder,notmodifying adecreeas specified in 5 40-4-208(1), MCA. We have recently recognized the authority of the district courts to revise temporary orders. In re the Marriage of Revious, 226 Mont. 304, 735 P.2d 301 (1987). In Revious, the District Court dissolved the marriage by decree but reserved judgment on the issue of child support, instead issuinga temporary order of child support until a hearing could be held. The final judgment, issued almost two years later, revised the child support and made it retroactive to the time of the date of dissolution. On appeal, this Court stated that: Itwas clearly within the District Court's authority to make the maintenance and child support awards retroactive. Thetemporaryorder of child support issued in July of 1984 did not prejudice the rights of the parties or the children adjudicated at the later hearings. Section 40-4-121(7) (a), MCA. It was well within the District Court's power, after hearing on the matter of child support and maintenance, to make the order retroactive. Revious, 226 Mont. at 312, 735 P.2d at 306. Section 40-4-121(7)(a), MCA, referred to in the above citation, states: (7) A temporary order or temporary injunction: (a) does not prejudice the rights of the parties or the child which are tobe adjudicated at subsequent hearings in the proceeding 

# . . . . The facts of Revious are more analogous to the facts before

us than are those of Rolfe. We therefore conclude that the District Court acted within its discretion when it ordered retroactive revision of the temporary support order. IV. Was the property division equitable? We have repeatedly held that the property division must be equitable. In re the Marriage of Snell, 205 Mont. 359, 668 P.2d 238 (1983); In re the Marriage of Fitzmorris, 229 Mont. 96, 745 P.2d 353 (1987); In re the Marriage of Jones, 229 Mont. 128, 745P.2d 350 (1987). We will not disturb a district court's judgment that is based on substantial credible evidence, unless a clear abuse of discretion is shown. In re the ~arriage of Stewart, 232 Mont. 40, 42, 757 P.2d 765, 767 (1988). Here, the ~istrict Court has heard testimony on the temporary order, the permanent order, and the motion to amend. Our review of the record indicates the trial court has equitablydivided theproperty, even to the extent of amending the decree to satisfy the parties. We find no abuse of discretion.

IsJoan entitled to attorney's fees and costs on appeal? TheDistrict Court originally awardedJoan $400 in fees. Joan now requests an additional award of attorney fees and costs on appeal under Rule 32, M.R.App.P., Rule 33, M.R.App.P., and 

### 5 40-4-110,MCA. Rule 32,M.R.App.P., allows damages for appeals takenwithout merit. However, damagesarenot warrantedwhen 

### areasonableground for appeal exists. Tope v. Taylor, 235 Mont. 124, 132, 768 P.2d 845, 850 (1988). Here, Kenny raised meritorious questions regarding imputed income and tax liability, and is therefore not liable for damages under Rule 32, M.R.App.P. Similarly, he is not liable under Rule 33,M.R.App.P., which provides for attorney fees if the fees are based on a contract or
on a specific statute. Schneider v. Minnesota Mutual Life, 806 P.2d 1032, 1037, 48 St.Rep. 224, 227 (1991). Here, no contractexists and the only possible applicable statute, 5 40-4-110,MCA, states: The court from time to time, after considering the financial resources of both parties,

## mav order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under chapters 1 and 4 of this title and for attorney's fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment. (Emphasisadded.) Section 40-4-110,MCA. The discretionary nature of 5 40-4-110,MCA, does not mandate the court to award costs and fees. We decline to do so here. Affirmed.

Justice We Concur: R