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, 1990 
Justice John C. Sheehy delivered the Opinion of the Court. 

On August 16, 1988, Suzanne Glarum Sullivan (Suzanne) filed 

an action in the Eleventh Judicial District Court, 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's moving 

expenses. 

Clifford and Suzanne were married 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 concerns Molly. 

As the District Court noted in its findings, Suzanne now works 

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 involves 
the purchasing and resale of chemicals and chemically related 

products. Clifford continued his chemical sales business up to and 

through the time of trial. 

In determining child support, the District Court looked to the 

child support guidelines 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 TOTAL NET 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's moving 

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 

1988 and 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 returns alone, which must be considered by 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; In Re the Marriage 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 are deductions 

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 the District Court's finding that dues and 

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 

expenses under the Guidelines. The wife presented no evidence that 

these expenses were not deductible under the Guidelines, and the 

District Court, relying on the expert testimony, considered them 

as legitimate business 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. In marriage 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 trial 
judge 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. 

In contrast, Respondent's proposal was so undervalued and 

simplistic as to border on the ridiculous. 

This trier-of-fact had no crystal ball to illuminate the 

true story of the parties1 financial course in the months 

preceding and following their separation in 1987. It 

was clear that Respondent had control of in excess of 

$15,000.00 from the money market account and a bank loan. 

It was 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, 

Petitioner did not, and could not from her position rebut 

Respondent's testimony by a preponderance of the 

evidence. 

In weighing the credibility of the parties1 testimony and 

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 his business revolving credit line was not 

brought to light. No credible explanation was offered 

for Respondent's ability to generate the sum of $1,000.00 

per month to support his wife and children following the 

separation and prior to receiving Petitioner's motion for 

temporary orders on support in October of 1988. At that 

time Petitioner engaged her attorney, preparatory to the 

November hearing date, he failed to pay any support that 

month and she obtained a court order allowing him to pay 

$300.00 per month. Respondent now proposes to pay 

$119.00 per month support for the minor child. 
In view of the equities involved and the failure by both 

parties to carry their burdens of proof to support their 

own contentions, the best that can be stated is that the 

truth lies somewhere between the parties1 positions 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 

limited maintenance and attorney fees and 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 

and projections for 1989. Furthermore, the court properly 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. 

The appropriate standard of review for an award of maintenance 

is established by 5 40-4-203, MCA. In Re the Marriage of Ernst 

(Mont. 1990), 47 St.Rep. 1034, 1035; In Re the Marriage 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 I1lacks sufficient 

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 in determining an appropriate award of maintenance. 

Section 40-4-203 (2), MCA. Section 40-4-203 (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 to which a provision 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 the marriage; 

(e) the age and the physical and emotional condition of 

the spouse seeking maintenance; and 

(f) the ability of the spouse from whom maintenance is 

sought to meet his needs while meeting those of the 

spouse seeking maintenance. 

Section 40-4-203 (2) (a) -(f) , MCA. 

A specific finding by the District Court as to each of these 

relevant facts is not required as long as the court considered 

proper information in addressing these facts and based its decision 

upon substantial credible evidence. In Re the Marriage of Cole 

(1988), 234 Mont. 352, 359, 763 P.2d 39, 43. These relevant facts 
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 is substantial credible evidence to support the District 

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 a pizza business, proved 

unsuccessful. The District Court found that the maintenance 

provided Suzanne with the opportunity to obtain job training and 

employment sufficient enough to support her household. 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 evidence presented at trial clearly reveals Clifford 

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 

to pay reasonable amount for the cost to the other party 

of maintaining or defending and 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 . . . 

This Court has stated that the awarding of attorney fees is 

clearly permissive under this statute. In Re the Marriage of Smith 

(Mont. 1990), 47 St.Rep. 935, 931; In Re the Marriage 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, is whether the court 

abused its discretion in awarding such fees. In Re the Marriage 

of Manus (1987), 225 Mont. 457, 465, 733 P.2d 1275, 1279; In Re the 

Marriage of Johnston (1986), 223 Mont. 383, 388, 726 P.2d 322, 326. 

Clifford, relying on Barnard, 785 P.2d at 1391, argues the District 

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 is attorneys' fees in this matter. Respondent has 

indicated owing two debts, both of which are covered and 

secured by collateral sufficient to satisfy the 
indebtedness. Petitioner's financial resources are 

insufficient to allow her to pay her attorneys and she 

should be allowed to recover a reasonable amount for 

payment of this indebtedness from the Respondent 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 find no abuse 

of discretion by the ~istrict Court's award of attorney fees. 

Finally, Clifford argues the District Court erred is granting 

Suzanne's moving expenses. The District 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. 

(Emphasis added.) 

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 Justice 


t 

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 is substantial credible evidence to support the District 

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 a pizza business, proved 

unsuccessful. The District Court found that the maintenance 

provided Suzanne with the opportunity to obtain job training and 

employment sufficient enough to support her household. 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 evidence presented at trial clearly reveals Clifford 

is capable of paying the $250 per 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.