No. 90-502 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

IN RE THE MARRIAGE OF 

JOAN WERSLAND , 

Petitioner/Respondent L,' h - +\ 3 

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and Cross-Appellant, 4*-1 6 - e i ).*a, 

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KENNY WERSLAND, A el I .ii 

Respondent and Appellant. 

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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 

Y 

Clerk 
Justice 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 err by imputing income to Kenny in the 

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 

retroactively reduced Kennyls child support obligation in the 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 attorneyls fees. On February 8, 1989, the court 
issued a temporary order designating joint custody of the children, 

with primary residence of the two youngest with the mother 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 $316 per month, retroactive to January 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 the purposes of determining child support. The court made 

this determination on the basis of the standard wage for carpenters 

in the area. Kenny maintains that because no evidence was presented 

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) , (hereafter Guidelines) states: 
In cases where the obligor parent is not working or is 

not working at full earning capacity, the reasons for 

such a limitation on earnings should be examined. If the 

reason is a matter of choice, the local job market should 

be reviewed to determine what a person with the obligor 

parent's trade skills and capabilities could earn. 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 I1obliged to 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 sum to impute. Having considered the factors required 

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 failing to deduct income taxes from 

Kennyls imputed income in the determination of his child support 

obligation? 

Kenny maintains that the court should have deducted income tax 

from the additional amount of earnings imputed to him, thus 
lowering 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 suggested procedure for predictable 

and equitable calculation which lfcalculates child support as a 

share of each parent's income estimated to have been spent on the 

child if the parents and child were 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, and not their income tax 

returns alone, which need be considered by the court. 

(Emphasis added). 

Kenny is attempting to lower his support payments simply by 

reducing his income for tax purposes. As we indicated in Mitchell, 

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 Court 
did not abuse its discretion in failing to deduct income taxes from 

Kennyls imputed income. 

Did the trial court abuse its discretion when it retroactively 

reduced Kenny's child support obligation in the final decree? 

Section 40-4-208(1), MCA, states: 

Except as otherwise provided in 40-4-201(6), a decree may 

be modified by a court as to maintenance or support only 

as to installments accruing subsequent to actual notice 

to the parties of the motion for modification. 

Joan claims that the District Court was in error when it 

ordered that child support payments be reduced retroactively from 

$400 per month to $316 per month. She relies on In re the Marriage 

of Rolfe, 216 Mont. 39, 699 P.2d 79 (1984), where we reversed a 

District Court decision that retroactively modified child support 

payments. In Rolfe we 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 temporary order, not modifying a decree as 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 issuing 
a 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: 

It was clearly within the District Court's authority to 

make the maintenance and child support awards 

retroactive. The temporary order 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 to be 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, 745 
P.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 equitably divided the property, even to the extent 

of amending the decree to satisfy the parties. We find no abuse 

of discretion. 

Is Joan entitled to attorney's fees and costs on appeal? 

The District Court originally awarded Joan $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 taken without 

merit. However, damages are not warranted when a reasonable ground 

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 contract 
exists 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. (Emphasis added.) 

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