No. 90-064 IN THE SUPREME COURT OF THE STATE OF MONTANA 1990

IN RE THE MARRIAGE OF SUZANNE GLARUM SULLIVAN, Petitioner and Respondent, and CLIFFORD LEROY SULLIVAN, Respondent and Appellant.

APPEAL FROM: District Court of the Eleventh Judicial District, In and for the County of Flathead, The Honorable Mary Ann Sutton, Judge Pro Tempore presiding.

COUNSEL OF RECORD: For Appellant: Marshall Murray, Murray, Kaufman, Vidal, Gordon & Ogle, Kalispell,Montana For Respondent: Wendell B. Dunn, Whitefish, Montana

Filed: Submitted: April 26, 1990 Decided: June 26, 1990Justice John C. Sheehy delivered the Opinion of the Court.

On August 16, 1988, Suzanne Glarum Sullivan (Suzanne) filed an action in theEleventhJudicial DistrictCourt, Flathead County, to dissolve her marriage. On December 6, 1988, the District Court ordered Clifford Leroy Sullivan (Clifford) to pay $600 per month for the parties1 two minor children. Furthermore, the Court ordered Clifford to provide health insurance for the two minor children. In order to secure an early trial date, the parties voluntarily elected to go to trial before a judge pro tempore, without a jury, on July 13, 1989. On October 23, 1989, the court entered its findings of fact, conclusions of law and orders, dissolving the parties1 marriage. Now Clifford appeals the District Court order. We affirm. Clifford's issue on appeal can be summarized as follows: Whether the District Court erred in determining Clifford's annualized income for application of Child Support Guidelines, maintenance, attorney fees and reimbursement of Suzanne'smoving expenses. Clifford and Suzanne weremarried in Sioux City, Iowa,on July 11, 1964. The parties separated in the summer of 1986. On August 16, 1988, Suzanne filed a petition for dissolution with the District Court. The couple has four children, Clifford, born January 11, 1966, Melissa, born October 5, 1967, Patrick, born March 3, 1971 and Molly,born October 24, 1975. At the time of the trial, the three younger children were residing with Suzanne, however, only Molly was under the age of 18 and thus the issue of child support only concernsMolly. As the District Courtnoted in its findings, Suzanne nowworks as a bookkeeper. Before the dissolution, Suzanne's primary role was that of a homemaker. In 1987, Suzanne did start a take-and bake pizza business in Choteau, Montana. The pizza business, however, proved unsuccessful and closed, producing a net loss. Clifford has his own business, Sullivan Wholesale, which involvesthe purchasing and resale of chemicals and chemically related products. Clifford continuedhis chemical salesbusiness up to and through the time of trial. Indetermining child support,theDistrict Court looked to the child supportguidelines for guidance,and set forth the following child support obligation: WORK SHEET #1 FOR DETERMINATION OF CHILD SUPPORT MOTHER COMBINED FATHER GROSS INCOME (annualized) $12,240.00 $42,000.00

a. earnings b. imputed income c. percent of asset value d. other DEDUCTIONS (annualized)

a. taxes b. FICA c. union dues d. mandatory retirement e. mandatory health ins. f. child support (pre-existing) g. medical insurance 780.00 (paid on behalf of children) h. other i. TOTAL 1,200.00 2,780.00 NET AVAILABLE RESOURCES (line le minus line 2i) 11,040.00 $39,220.00 COMBINED TOTALNET INCOME $50,260.00 PERCENTAGE FROM TABLE 16.8% EACH PARENT'S OBLIGATION (line 3 

### x line 5) 1,854.72 $6,588.96 MONTHLY SUPPORT OBLIGATION (line 6 divided by 12 months) 154.56 $549.08

In addition to the child support, the District Court awarded Suzanne $250 per month in maintenance for a period of two years, moving expenses, and attorney fees.Whether the District Court erred in determining Clifford's annualized income for application of Child Support Guidelines, maintenance, attorney fees and reimbursement of Suzanne'smoving expenses. The District Court determined Clifford's annualized gross income for application to the Guidelines to be $42,000. Clifford contends the District Court grossly overestimated his annual income. According to Clifford, his annual income for the years 1988and 1989,was approximately $12,000. Clifford arrived at this figure by deducting his business expenses from his gross income, specifically, expenses for freight, utilities, supplies and auto and travel expenses. These business expenses were gleaned from a combination of the parties 1988 tax returns and his 1988 and 1989 income summaries introduced at trial. The District Court disagreed with Clifford, choosing to disregard the tax returns and income summaries,and not to include the above-mentioned expenses as deductions. It is here that Clifford takes issue. Under the Montana Child Support Guidelines (1987) 227 Mont. 1, the primary focus for determining available income for paying child support is based on a parent's disposable income rather than taxable income. "It is the disposable income of the parent, and not their income tax returnsalone, which must be consideredby the court. In Re the Marriage of Stewart (Mont. 1990)

### , 47 St.Rep. 1116, 1118; In Re the Marriage of Gray (Mont. 1990), 47 St.Rep. 552, 555, 788 P.2d 909,912;InRe theMarriage of Mitchell (1987),229 Mont. 242, 246-47, 746 P.2d 598, 602. As a result, the Guidelines dictate allowing only a minimum of exclusions from the parent's gross income. Guidelines, 227 Mont. at 7. Included within this list of exclusions under the Guidelines aredeductions for legitimate business expenses. Guidelines, 227 Mont. at 7. Clifford urges this Court to find his expenses are legitimate business expenses under the Guidelines. Recently, in In Re the Marriage of Smith (Mont. 1990), 47 St.Rep. 925,we affirmed theDistrictCourt's findingthat duesand publications, auto expenses, attorney fees, accounting fees, and deductions for business investments, were legitimate business expenses, and thus deductible from income to calculate a husband's child support obligation under the Guidelines. In Smith, the wife's own expert witness, an experienced family law attorney, testified that the husband's expenses were legitimate business expensesunder theGuidelines. Thewifepresented no evidence that these expenses were not deductible under the Guidelines, and the District Court, relying on the expert testimony, considered them

as legitimatebusiness expenses. A spouse who gains a livelihood from the operation of a business is entitled to utilize the deductions allowed by law to determine his income for purposes of fixing his state and federal income tax liability. Inmarriage dissolution cases, the court is not bound by those deductions in determining cash flow of such a spouse to fix a proper amount of child support and, if necessary, maintenance. Stewart, 47 St.Rep at 118. In this case the trialjudge got little help from either party, especially Clifford, in reaching a prior estimate of Clifford's disposable income. The court noted this difficulty in its findings:

38. This suit involved the usual difficulties encountered where one or both of the parties are selfemployed. This was compounded by the wildly divergent approaches to the financial issues taken by counsel in their post-trial proposals for judgment. Petitioner's proposal overinflated the value of the marital estate through a method so complex as to be nearly unintelligible. Her child support calculations were quite simply unprecedented in this counsel's experience. Incontrast, Respondent'sproposalwas soundervalued and simplistic as to border on the ridiculous. This trier-of-facthad no crystal ball to illuminate the true storyof theparties1financialcourse in themonths preceding and following their separation in 1987. It was clear that Respondent had control of in excess of $15,000.00from themoneymarket account and abank loan. Itwas clear that the marriage was in financial trouble at that time with past due mortgage and other obligations. It is clear funds were used to start both parties1 businesses, to pay Melissa's college tuition, and for necessaries of life. Respondent did not substantiate where every dime of money that passed through his hands during this time went. However, Petitionerdid not,and couldnot fromherposition rebut Respondent's testimony by a preponderance of the evidence. Inweighing the credibility of theparties1testimonyand the relative weight of the evidence presented, it is surmised that Respondent had access to and did expend substantially more funds for his personal and business use than was allotted to petitioner during this period. The source of the $5,000.00 C.D. Respondent holds as collateral for hisbusiness revolving credit linewasnot brought to light. No credible explanation was offered forRespondent'sabilitytogeneratethe sumof $1,000.00 per month to support his wife and children following the separationandpriortoreceivingPetitioner's motion for temporary orders on support in October of 1988. At that time Petitionerengaged her attorney,preparatory to the November hearing date,he failed topay any support that month and she obtained a court order allowing him topay $300.00 per month. Respondent now proposes to pay $119.00 per month support for the minor child.Inview of the equities involved and the failureby both parties to carry theirburdens of proof to support their own contentions,the best that can be stated is that the truth lies somewherebetween the parties1positions and has yet to see light of day. The valuation of the marital estate, the distribution thereof, the reimbursements and credits to Petitioner, the award of limitedmaintenance and attorney feesand amount of child support are fair and equitable under the circumstances presented.

The District Court properly weighed the evidence by both parties, and chose not to adopt the deductions set forth in Clifford's tax returns and income summaries. We find the District Court did not abuse its discretion in denying Clifford's deductions. Next, Clifford contends the District Court failed to specify how it established child support, maintenance, attorney fees and moving expenses. Regarding child support, the District Court's findings specifically state that the Guidelines were applied to Clifford's income based on averages of past years1 tax returns andprojections for 1989. Furthermore,the courtproperly attached

a worksheet to the findings to demonstrate exactly how it arrived at the child support figures. We find no abuse of discretion by the District Court in determining the child support award. Theappropriatestandard of review foranaward ofmaintenance is established by 

### 5 40-4-203, MCA. In Re the Marriage of Ernst (Mont. 1990), 47 St.Rep. 1034, 1035; In Re theMarriage of Barnard (Mont. 1990), 785 P.2d 1387, 1341, 47 St.Rep. 152, 156; In Re the Marriage of Lundvall (Mont. 1990), 786 P.2d 10, 12, 47 St.Rep. 173,175. An award of maintenance is premised upon a finding by the court that the individual seeking maintenance I1lackssufficient property to provide for his reasonable needs; and is unable to support himself through appropriate empl~yrnent.'~Section 40-4- 203(1)(a) (b)

## , MCA. The District Court in the present case made such a finding. Next, the District Court must then consider all relevant facts indetermining an appropriateaward ofmaintenance. Section 40-4-203(2),MCA. Section40-4-203(2),MCA, sets forth the following factors for the court to consider: (a) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent towhich aprovision for support of a child living with the party includes a sum for that party as custodian;

(b) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment; (c) the standard of living established during the marriage; the duration of themarriage; (e) the age and thephysical and emotional condition of the spouse seekingmaintenance; and

(f) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seekingmaintenance. Section 40-4-203(2)(a) -(f)

### , MCA. A specific findingby the District Court as to each of these relevant facts is not required as long as the court considered proper information in addressingthese factsand based itsdecision upon substantial credible evidence. In Re the Marriage of Cole

(1988),234 Mont. 352, 359, 763 P.2d 39, 43. These relevant factsare to be considered by the court as a whole in the determination of the final maintenance award. Ernst, 47 St.Rep. at 1037. There is substantial credible evidence to supporttheDistrict Court's monthly maintenance award of $250 to Suzanne. The parties resided together for 23 years, during which time Suzanne was a part-time bookkeeper for her husband, occasionally held part-time outside employment, but was predominantly a full-time housewife. Her only steady employment,as an owner of apizza business,proved unsuccessful. The District Court found that the maintenance provided Suzanne with the opportunity to obtain job training and employment sufficient enough to supportherhousehold. Her current job is insufficient to meet her monthly expenses. The District Court, in its findings, also specifically recognized the fact that Clifford had demonstrated in the past an ability to provide Suzanne $1,000 per month which he did from August, 1987, through May, 1988. The current child support award and maintenance obligation are less than the $1,000 provided by Clifford. The evidencepresented at trial clearly revealsClifford is capable of paying the $250 per month child support. The District Court, in awarding maintenance to Suzanne,made

numerous findings relating to the parties' work history, skills, both past and present standards of living and the parties present employment. In light of the facts of this case, the District Court's award of maintenance to Suzanne is supported by substantial, credible evidence.Clifford claims the District Court erred in granting Suzanne her attorney fees. The awarding of attorney fees is governed by 5 40-4-110,MCA, which states:

The court from time to time, after considering the financial resources of both parties, may order a party topay reasonable amount for the cost to the otherparty ofmaintainingordefendingandproceedingunder chapters 1and 4 of this title and for attorney's fees, including sumsforlegal servicesrenderedand costs incurredprior to the commencement of theproceeding or after entry of judgment 

# . . . This Court has stated that the awarding of attorney fees is clearly permissive under this statute. InRe theMarriage of Smith

(Mont. 1990), 47 St.Rep. 935, 931; InRe theMarriage of Gallinger (1986), 221 Mont. 463, 471, 719 P.2d 777, 782; In Re the Marriage of Obergfell (1985), 218 Mont. 83, 88, 708 P.2d 461, 564. The appropriate standard for reviewing a district court decision awarding attorney fees under 3 40-4-110,MCA, iswhether the court abused its discretion in awarding such fees. In Re the Marriage ofManus (1987), 225Mont. 457,465, 733 P.2d 1275, 1279; InRe the Marriage ofJohnston (1986),223 Mont. 383, 388, 726 P.2d 322, 326. Clifford, relyingon Barnard,785P.2d at 1391, arguestheDistrict Court's award of attorney fees to Suzanne were not based on necessity, unreasonable, and not supported by competent evidence at trial. We disagree with Clifford, and find that the court's Finding No. 34 supports an award of attorney fees:

Petitioner has incurred substantial debt as a direct result of the dissolution proceedings and one of those debts isattorneys' fees in thismatter. Respondenthas indicated owing twodebts,both of which are covered and secured by collateral sufficient to satisfy theindebtedness. Petitioner's financial resources are insufficient to allow her to pay her attorneys and she should be allowed to recover a reasonable amount for paymentofthis indebtednessfromtheRespondent pursuant to Section 40-4-110, MCA. The record indicates the District Court was aware of the financial resources and financial burdens of both parties as required by § 40-4-110, MCA, and from this record the court properly awarded Suzanne her attorney fees. Thus,we findno abuse of discretion by the ~istrict Court's award of attorney fees. Finally, Clifford argues the District Court erred is granting Suzanne'smoving expenses. TheDistrict Court stated the following in Finding No. 32: During the separation the parties had initially aqreed that one of them would have to leave Choteau, Montana. Petitioner felt compelled to move and incurred expenses of $1,038.56 to do so. She is entitled to recover onehalf of these expenses from Respondent, or $519.28.

(Emphasisadded.) We agree with the District Court, and find it reasonable to allow Suzanne to recover a portion of her agreed upon expenses. The District Court's decision is sound and substantial credible evidence exists to support it. Accordingly,we affirm the District Court.

We Concur: A

Chief Justicet are to be considered by the court as a whole in the determination of the final maintenance award. Ernst, 47 St.Rep. at 1037. There issubstantialcredibleevidenceto supporttheDistrict Court's monthly maintenance award of $250 to Suzanne. Theparties resided together for 23 years, during which time Suzanne was a part-time bookkeeper for her husband, occasionally held part-time outside employment, but was predominantly a full-time housewife. Her only steady employment, asan owner of apizza business,proved unsuccessful. The District Court found that the maintenance provided Suzanne with the opportunity to obtain job training and employment sufficient enoughto supportherhousehold. Her current job is insufficient tomeet her monthly expenses. The District Court, in its findings, also specifically recognized the fact that Clifford had demonstrated in the past an ability to provide Suzanne $1,000 per month which he did from August, 1987, through May, 1988. The current child support award and maintenance obligation are.lessthan the $1,000provided by Clifford. The evidencepresented attrial clearly revealsClifford is capable of paying the $250per mont

# %----' The District Court, in awarding maintenance to Suzanne,made numerous findings relating to the parties1 work history, skills, both past and present standards of living and the parties present employment. In light of the facts of this case, the District Court's award of maintenance to Suzanne is supported by substantial, credible evidence.