DA 15-0292

IN THE SUPREME COURT OF THE STATE OF MONTANA

2015 MT 350

IN RE THE MARRIAGE OF:

HERBERT CHRISTIAN PASCHEN,

 Petitioner and Appellant,

 v.

ANNE KEMSLEY PASCHEN,

 Respondent and Appellee.

APPEAL FROM: District Court of the Eleventh Judicial District,

In and For the County of Flathead, Cause No. DR 12-825(A)

Honorable Ted O. Lympus, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Matthew D. Neill, Johnson-Gilchrist Law Firm, Whitefish, Montana

For Appellee:

Brian Muldoon, Law Office of Brian Muldoon, P.C., Whitefish, Montana

For Amicus Curiae:

P. Mars Scott, P. Mars Scott Law Offices, Missoula, Montana 

Submitted on Briefs: November 18, 2015

 Decided: December 29, 2015

Filed:

__________________________________________

Clerk

December 29 2015

Case Number: DA 15-0292
2

Justice Patricia Cotter delivered the Opinion of the Court. 

¶1 In March 2015, the Eleventh Judicial District Court, Flathead County, issued its 

Findings of Fact, Conclusions of Law, Orders on Contempt and Decree of Dissolution, 

dissolving the marriage of the parties, dividing property, and imposing orders of 

maintenance and child support. Herbert Paschen (hereinafter Herb) appeals the order 

claiming the District Court’s distribution of the marital estate and its award of 

maintenance and child support were inequitable and were not supported by substantial 

evidence. We affirm in part and reverse and remand in part. 

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Herb Paschen and Anne Kemsley (hereinafter Anne) were married in November 

1996. They had three children between 1997 and 2003 and Anne remained at home with 

the children rather than working outside of the home. Beginning in 1998, Herb worked 

in sales and finance with various financial employers in California where the couple 

resided. In 2005, he became an officer and mortgage consultant with a national bank in 

Jackson Hole, Wyoming, earning approximately $100,000 annually. In 2007, however, 

he lost his banking job and established Fox Creek Holding, L.L.C., a land development 

corporation, with one of his banking clients. Herb and his partner each initially invested 

between $150,000 and $200,000 into the company, and obtained a loan for $3.2 million, 

personally guaranteed by Herb and his partner. In July 2008, Herb’s partner died in a 

helicopter crash. Herb attempted to keep the corporation viable but the company 

subsequently failed in 2010. The lending bank foreclosed on the unpaid note and 
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obtained a judgment of $5.4 million against Herb and his business partner’s estate. Herb 

stipulated to a judgment against him in the amount of $5.4 million. 

¶3 Between 2007 and 2010, while establishing and operating Fox Creek, Herb 

claimed he generated no income to support his family. Herb’s mother, Leslie Douglass 

(hereinafter Bunny), gifted the family $75,000 for each of those years. Herb accrued 

approximately $250,000 in legal fees during these years, some of which were incurred in 

the corporate lawsuit, and Bunny paid these fees in their entirety. 

¶4 Anne did not actively participate in the family’s finances and testified that she 

believed the money from Bunny was the only money the family had at its disposal 

between 2007 and 2010. Undisputed evidence presented at trial, however, revealed that 

in 2007 Herb wrote checks for over $400,000, including a check to himself for $191,000, 

the purpose of which he could not recall at trial. Similarly, Herb spent considerable 

amounts beyond the gifted $75,000 during 2008 and 2009. The District Court calculated 

that between 2007 and 2010, Herb spent approximately $1,724,000.00, or an average of 

$431,000/year. Herb could not account at trial for the source of most of this money. 

¶5 In July 2011, Anne initiated two legal proceedings against Herb in Wyoming—

one for marital dissolution and the other for a restraining order following a physical 

altercation. During this time, Anne and two of the children remained in the Wyoming 

home and Herb and the couple’s oldest son moved to California. Herb testified to the 

Wyoming court that he was able to earn $100,000/year. The court adopted this figure, 

and in September 2011, ordered Herb to pay $2,713.81/month in child support and 

temporary support to Anne. Herb did not challenge this ruling. However, in August 
4

2012, the Wyoming court dismissed the dissolution proceedings by stipulation of the 

parties. Herb had not paid any of the court-ordered support as of the time of dismissal. 

¶6 Subsequently, Anne and two of the children moved to Montana and Herb and the 

eldest son joined them in an attempted reconciliation. The reconciliation failed within 

weeks and Herb moved to Oregon in the fall of 2012. The three children remained with 

Anne. After Herb and Anne separated, Bunny stopped gifting the family $75,000 but 

began giving Herb approximately $30,000/year for his living expenses. 

¶7 Herb filed for divorce in the Eleventh Judicial District Court, Flathead County, 

Montana, on December 27, 2012. In September 2013, Bunny paid Herb’s delinquent 

support obligation arising from the Wyoming order of support. In October 2013, the 

District Court conducted a two-day bench trial at which both Herb and Anne testified, as 

did the Director of Family Court Services for the District Court, a psychologist who 

performed a parenting evaluation in the matter, and a former friend and neighbor of the 

couple.

¶8 On March 31, 2015, the District Court issued its order dissolving the marriage. 

The order describes both marital assets valued at $95,966, and distributed marital assets 

valued at $104,466.1 The $95,966 value of the marital assets consisted of a checking 

account, 2 horses, a horse trailer, 2 vehicles, a piano and miscellaneous furniture, silver, 

china, and kitchenware. The most valuable item included in marital assets was $50,000 

for missing jewelry belonging to Anne. The court found that at the time of separation 

 

1 The list of distributed marital assets set forth in the order totals $86,466. On remand, the 

District Court should re-calculate the value of distributed marital assets.
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Herb removed the jewelry from a safe to which he alone had access; therefore, the court 

ordered Herb to return the jewelry or to pay Anne the $50,000 attributed value. The court 

also declared that the jewelry was Anne’s “sole and separate property,” which would not 

be considered a marital asset subject to distribution. The court did not include the value 

of this jewelry in the distribution of marital assets.

¶9 The court distributed all the marital assets with the exception of the $50,000 in 

jewelry. The court also attributed $25,000—not included in marital assets—to Herb 

representing the value of guns Herb had taken upon separation. It attributed $15,500—

also not included in marital assets—to Anne representing the value of a tractor and other 

items sold by Anne post-separation. The District Court noted that none of the property 

distributed to the parties constituted income-producing or income-generating property.

¶10 The court also allocated marital debt between the parties. Anne was assigned 

$16,058 of family debt. Herb was assigned $5,580,625 of debt, which included 

$5,420,608 for the judgment associated with the Fox Creek Holding corporate failure and 

$160,017 for other marital debts.2 The court expressly acknowledged the “grossly 

disproportionate allocation” but justified it based upon Herb’s claim that he intended to 

seek bankruptcy which would allow him to avoid most or all of the debt.

¶11 Lastly, the District Court addressed the proposed parenting plan, child support and 

maintenance. The court imputed an annual earning capacity to Herb of $175,000—

$100,000 based upon Herb’s self-represented earning ability and $75,000 based upon 

 

2 Herb testified at the dissolution hearing that he believed the entire Fox Creek Holding debt 

should be allocated to him. 
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past gifts from his mother. Using this imputed earning capacity, the court ordered Herb 

to pay $3,247.00/month in child support and $3,753.00/month as maintenance to Anne—

both to be paid until January 2022. Other facts and arguments are further addressed 

below. 

¶12 Herb appeals. Bunny, through counsel, has filed an amicus brief with respect to 

the propriety of including gifted property as income for purposes of calculating child 

support and maintenance.

ISSUES

¶13 A restatement of the issues on appeal is:

¶14 Did the District Court err in the amount of income it imputed to Herb for the 

purpose of setting monthly child support and maintenance payments?

¶15 Did the District Court err and/or abuse its discretion in apportioning the marital 

estate?

STANDARD OF REVIEW

¶16 The distribution of marital property in a dissolution proceeding is governed by 

§ 40-4-202, MCA, under which a trial court is vested with broad discretion to distribute 

the marital property in a manner that is equitable to both parties. When dividing marital 

property, the trial court must reach an equitable distribution, not necessarily an equal 

distribution. The district court’s apportionment of the marital estate will stand unless 

there has been a clear abuse of discretion as manifested by a substantially inequitable 

division of the marital assets resulting in substantial injustice. Richards v. Trusler, 2015 

MT 314, ¶ 11, 381 Mont. 357, 360 P.3d 1126 (internal citations omitted).
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¶17 We review a district court’s findings of fact regarding division of marital property, 

child support, and maintenance awards to ascertain whether they are clearly erroneous. 

We apply a three-part test to determine if a finding is clearly erroneous. First, the Court 

will review the record to see if the findings are supported by substantial evidence. 

Second, if the findings are supported by substantial evidence we will determine if the trial 

court has misapprehended the effect of evidence. Third, if substantial evidence exists and 

the effect of the evidence has not been misapprehended the Court may still find that “A 

finding is ‘clearly erroneous’ when, although there is evidence to support it, a review of 

the record leaves the [C]ourt with the definite and firm conviction that a mistake has been 

committed.” Richards, ¶ 12. (Internal citations omitted.) 

DISCUSSION

¶18 Did the District Court err in the amount of income it imputed to Herb for the 

purpose of setting monthly child support and maintenance payments?

¶19 The District Court imputed an annual earning capacity to Herb of $100,000 based 

in part upon Herb’s 2011 testimony in the Wyoming court and that court’s imputation of 

potential income to him of $100,000. Additionally, noting that Herb’s mother had gifted 

the family $75,000/year in the past, the District Court included $75,000 in addition to the 

imputed $100,000 in its calculation of annual resources available to Herb. Based upon 

this annual figure of $175,000, the District Court ordered Herb to pay monthly child 

support of $3,247.00 and maintenance of $3,753.00. 

¶20 Herb argues that the District Court erred in both the $100,000 imputation of 

earning capacity and the inclusion of his mother’s past charitable gifts to the family as 
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“resources available” to pay child support and maintenance. Anne counters that 

sufficient evidence was presented to support the District Court’s ruling and it should not 

be disturbed. We address each of these imputed income resources below.

Imputation of $100,000 annual earning capacity 

¶21 Under the Montana dissolution of marriage statutes, a district court can order a 

party to a dissolution proceeding to pay maintenance to the other party and to pay child 

support. Section 40-4-203(2), MCA, requires the court to consider the financial 

resources of the party seeking maintenance as well as the “ability of the spouse from 

whom maintenance is sought” to meet his or her own needs and the maintenance request 

of the other party. With respect to child support, § 40-4-204, MCA, obligates the court to 

consider, among other things, the financial resources of the child and the parents, as well 

as the child’s standard of living had the parents not gotten divorced.

¶22 The Administrative Rules of Montana instruct what “income” can be considered 

for purposes of determining child support. Admin. R. M. 37.62.105(1) states: “Income 

for child support includes actual income, imputed income as set forth in ARM 37.62.106, 

or any combination thereof which fairly reflects a parent’s resources available for child 

support.” “Imputed income” means “income not actually earned by a parent, but which is 

attributed to the parent” based on: (a) the parent’s recent work history; (b) occupational 

and professional qualifications; and (c) existing job opportunities and associated earning 

levels in the community. Admin. R. M. 37.62.106(1) and (3)(a)-(c). Additionally, 

income should be imputed whenever a parent is unemployed or underemployed, fails to 
9

produce sufficient proof of income or has an unknown employment status. Admin. R. M. 

37.62.106(2)(a)-(d).

¶23 Herb asserts that his “recent work history” clearly establishes that he has not been 

able to earn $100,000/year since before 2007 and that his income prospects from his 

current employment are $50,000 to $60,000, which is substantially lower than $100,000. 

He claims this alone is sufficient to establish that the District Court abused its discretion 

in imputing a $100,000 earning capacity to him. 

¶24 Anne counters that Herb’s extensive professional work history establishes his 

ability to command a significant salary but that Herb chooses to be voluntarily and 

vindictively underemployed. She points to Herb’s resume claims that he created a $65 

million portfolio in commercial loans “from his basement” for the national bank which 

once employed him and his experience of rising from a mortgage broker to a bank vice 

president as examples of his ability to obtain high-paying professional employment. 

Anne further maintains that Herb enjoys generous access to his mother’s significant

wealth or has considerable hidden personal wealth as evidenced by produced financial 

records. Consequently, she urged the District Court to impute to Herb an income of 

$410,000/annually. 

¶25 The District Court was presented with concrete evidence of Herb’s ability to earn 

approximately $100,000 annually. Herb’s trial exhibits reflect adjusted gross income 

earnings between 2001 and 2006 ranging from $46,830 to $93,366. In 2009, Herb sued 

the widow of his deceased Fox Creek business partner in Idaho, and claimed in the 

complaint that his “time [with Fox Creek] was worth $100,000” annually. Additionally, 
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in the Wyoming court’s September 2011 Order Requiring Child Support and Temporary 

Support, the court stated “[Herb] anticipates earning an annual gross income of 

$100,000.” Based upon this evidence, the Wyoming court ordered Herb to pay 

$2,713.81/month in child support and Herb did not challenge this ruling.

¶26 We conclude the District Court did not err in imputing $100,000 income to Herb, 

in part premised upon his own assertions of his likely earning power. Anderson v. 

Anderson, 2014 MT 111, ¶ 15, 374 Mont. 526, 323 P.3d 895. Between 1998 and 2007, 

he was (1) a residential loan officer for a mortgage company, (2) an account executive for 

a finance group, and (3) a commercial lender for a national bank. His self-proclaimed 

successes at those jobs demonstrate a high earning capability. We acknowledge that his 

annual income dropped significantly following the unfortunate experience with Fox 

Creek Holding, during which he deferred income for several years. Additionally, we note 

that subsequent to the demise of Fox Creek, Herb held low-paying temporary jobs. We 

need not determine whether he chose to be underemployed as argued by Anne or was 

unable to find a position commensurate with his previous employment. Herb now enjoys 

a professional sales position in which he expects to earn between $50,000-$60,000 in 

commissions during his first year. He testified that he expects even greater commission 

income in his second and subsequent years. Thus, based upon Herb’s work history, 

professional qualifications, and existing job opportunities, it was not clearly erroneous for 

the court to conclude that Herb will reach his imputed income. Admin. R. M. 

37.62.106(1) and (3)(a)-(c). We therefore affirm the District Court’s imputation of 

$100,000 annual income to Herb.
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Imputation of $75,000

¶27 Whether gifts of cash should constitute income for purposes of calculating child 

support is a question of first impression for the Court. We therefore look to the language 

of our statutes and regulations and to other states for guidance. Herb and his mother in 

her amicus brief argue that the District Court erred in imputing $75,000/year to his 

income based upon Bunny’s past charitable gifts to the family. Anne asserts that Herb 

produced no evidence that the considerable financial resources he utilized over the past 

several years were actually gifts from his mother, but if they were she argues that the 

administrative rules require the court to consider “economic benefit from whatever 

sources derived,” including gifts. 

¶28 In her amicus brief, Bunny traces the previous administrative rule, Admin. R. M. 

46.30.1513, back to 1990 when the Department of Social and Rehabilitation Services 

(DSRS) governed the Montana child support guidelines. At that time, the rule required 

courts to consider a parent’s net resources available for child support, including both 

“gross income” and “imputed income.” “Gross income” expressly included “gifts and 

prizes.” Admin. R. M. 46.30.1513(1)(a) and (b)(1990). In 1992, after proposed 

amendments were adopted, Admin. R. M. 46.30.1513 continued to address “imputed 

income,” while newly-adopted Admin. R. M. 46.30.1508 (1992) addressed the 

determination of “gross income.” “Gifts and prizes” were no longer included as 

examples of “gross” or “imputed” income in the new rules. 

¶29 In 1995, the Department of Public Health and Human Services (DPHHS) assumed 

authority over the child support guidelines and the applicable rules were moved from 
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Title 46 to Title 37. In 1998, DPHHS adopted substantial revisions to the child support 

guidelines. The agency replaced reference to “gross income” with the term “actual 

income,” which included, among other things, “economic benefit from whatever source 

derived.” Admin. R. M. 37.62.106 (1998). Multiple forms of income such as wages, 

tips, commissions, bonuses, etc., were provided as examples but again the rule addressing 

“actual income” did not include gifts, prizes, or inheritances. In the comments issued 

during the rule changing process, the agency stated it was revising Admin. R. M. 

37.62.106 “to provide a single reference point to determine if a source of funds or ability 

to obtain funds should be counted as income, real or imputed, in order to appropriately 

determine each parent’s child support obligation.” 1998 Mont. Admin. Register 334.

¶30 The regulations remained unchanged until 2012. At that time, DPHHS adopted 

Admin. R. M. 37.62.105 to address the determination of “actual income” for child 

support purposes. Admin. R. M. 37.62.106 remained dedicated to the determination of 

imputed income for child support purposes. Again, the agency chose to exclude gifts, 

prizes, and inheritances as a source of income for purposes of calculating child support.

¶31 In addition to their reliance on the administrative rules, Herb and Bunny further 

argue that in determining child support obligations, the applicable statutes require courts 

to look to the resources of the parents and not to the resources of other relatives or 

persons who are part of the parent’s household. 

¶32 It is clear from the former and current statutes and regulations addressing the 

determination of income for purposes of calculating child support that the regulatory 

agency chose to remove express reference to “gifts” from the inclusion in actual or 
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imputed income. Furthermore, while the Legislature has amended the governing statute, 

§ 40-4-204, MCA, more than a dozen times since its enactment in 1975, it has chosen not 

to expressly define what constitutes a parent’s “financial resources.” Rather, it directs a 

court issuing a child support order to “determine the child support obligation by applying 

the standards in this section and the uniform child support guidelines” adopted by 

DPHHS. Section 40-4-204, MCA, instructs the courts that the “guidelines must be used 

in all cases.” Given the number of revisions to both the applicable statute and 

regulations, DPHHS and the Legislature had every opportunity to expressly include 

“gifts” as income had that been the intention. Neither did so. 

¶33 Section 1-2-101, MCA, states that “In the construction of a statute, the office of 

the judge is simply to ascertain and declare what is in terms or in substance contained 

therein, not to insert what has been omitted or to omit what has been inserted.” We 

therefore decline to re-insert “gifts” into the legislative or regulatory provisions setting 

forth the sources to be considered in calculating child support. 

¶34 We also find case law from other jurisdictions persuasive on this point. Statutes 

and regulations in some states do include gifts as resources available for child support 

computations. See O.C.G.A. § 19-6-15(f)(1)(A) (xviii) and Tenn. Comp. R. & Regs. R. 

1240-2-4-.04(3)(a)1(xviii). See also Ind. Child Support R. & Guidelines 3(A)(1)

(Weekly gross income includes gifts.) and Va. Code Ann. § 20-108.2.C (Gross income 

includes gifts.). In other states with statutes that do not expressly require gifts to be 

considered as income for child support purposes, courts have exercised their discretion 

and interpreted their statutes broadly to allow consideration of gifts. In In re Marriage of 
14

Alter, 171 Cal. App. 4th 718 (2009), the California Appeals Court acknowledged that 

Cal. Fam. Code § 4058 defining gross income of each parent did not “mention gifts at 

all,” but required courts to consider “income from whatever source derived.” There, the 

court concluded that monthly cash gifts of $6,000 from the father’s mother over more 

than a decade constituted “gifts that bear a reasonable relationship to the traditional 

concept of income as a recurrent, monetary benefit.” Alter, 171 Cal. App. 4th at 736-37. 

See also Petersen v. Petersen, 22 S.W.3d 760 (Mo. Ct. App. 2000), in which the court 

imputed gift income to Mother based upon her parent’s annual gift of $20,000 during the 

marriage. 

¶35 Conversely, other courts have declined to consider gifts as income. In Nass v. 

Seaton, 904 P.2d 412 (Alaska 1995), father appealed the Superior Court’s inclusion in his 

income of monetary gifts from his parents. Nass received $20,000 annually from his 

parents from 1990 through 1992, with the expectation he would receive another $20,000 

in 1993. The Superior Court calculated Nass’s child support obligation based, in part,

upon these gifts. Nass, 904 P.2d at 414. The Alaska Supreme Court reversed the ruling 

stating:

Review of authorities addressing the question of whether gifts to the 

obligor parent should be considered income for purposes of determining the 

level of the obligor’s support obligation leads us to the determination that 

the principal amount of gifts and inheritances should not be considered as 

income for purposes of [Alaska R. Civ. P. 90.3 (defining “adjusted gross 

income” for child support purposes)]. We are persuaded that any other 

approach blurs the easily administered and well-established historical 

distinction between gifts and earned income. In short, we conclude that the 

authorities which refuse to recognize the inclusion of gifts in determining 

the level of the obligor’s adjusted gross income for purposes of calculating 

a child support obligation represent the correct rule of law. We therefore 
15

hold that it was error for the superior court to include any gifts from Fred’s 

parents in calculating his child support obligation under Civil Rule 90.3. 

Nass, 904 P.2d at 416. 

¶36 In True v. True, 615 A.2d 252 (Maine 1992), the Maine Supreme Court rejected 

father’s argument that mother’s gross income should include her grandmother’s regular 

monetary gifts. He argued that while the applicable statute, 19 M.R.S.A. § 311(5)(A) 

(1991), did not reference “gifts,” it defined “gross income” as “any ongoing source,” and 

that mother’s gifts from her grandmother therefore qualified. The Court disagreed, 

reasoning that mother’s grandmother was under no legal obligation to pay the money. 

Consequently, the court concluded the monetary gifts were not income. True, 615 A.2d 

at 253.

¶37 We are persuaded by the rationales of Nass and True. Bunny has no legal 

obligation to continue these gifts; in fact, she ceased gifting the family $75,000 per year 

in 2011. It would be fundamentally unfair to base a parent’s future monthly child support 

obligation on gifts not yet received and which may never be given. The unpredictable 

largesse or generosity of a third person should not be a basis for determining a parent’s 

ability to provide child support. We therefore reverse the District Court’s order imputing 

to Herb $75,000 in annual earnings for purposes of child support calculation. 

¶38 We also conclude that it was inappropriate for the District Court to take into 

account Bunny’s past monetary gifts when calculating Herb’s maintenance obligation. 

Unlike the statutes and supporting regulations governing child support, the maintenance 

statute does not contemplate the imputation of income to a spouse tasked with paying 
16

maintenance. Rather, the District Court is tasked with considering the paying spouse’s 

ability to meet his own needs while meeting the needs of the spouse seeking 

maintenance. Section 40-4-203(2)(f), MCA. Because there is no guarantee that Herb 

will continue to receive substantial gifts from Bunny into the foreseeable future, it would 

be inappropriate to factor such unknowable additional resources into Herb’s income for 

purposes of calculating maintenance. We therefore conclude that to the extent the court’s 

findings of fact concerning maintenance took into account future income deriving from 

Bunny’s gifts, these findings were clearly erroneous. 

¶39 As we have determined Herb’s mother’s gifts to Herb are not to be considered as 

income, we need not address Herb’s complaint that the District Court erred in failing to 

consider Anne’s parents’ gifts to her as income. We further decline to address Anne’s 

claim that Herb and Bunny are intentionally hiding resources from Anne, the district 

court, and the Internal Revenue Service. While Anne alluded in the District Court to 

Herb and Bunny engaging in a “game of hiding money,” she presented no evidence or 

legal argument in support of such a claim to the District Court. It is well-established that 

we will not address a new legal theory or argument presented for the first time on appeal. 

Guill v. Guill, 2014 MT 316, ¶ 17, 377 Mont. 216, 339 P.3d 81. 
17

¶40 Did the District Court err and/or abuse its discretion in apportioning the marital 

estate?

¶41 Herb asserts that the District Court “vastly underestimated” the seriousness of the 

$5,580,625 debt to the F.D.I.C. and this underestimation contributed to the District 

Court’s “flawed analysis of the ‘resources available’” for determining child support and 

maintenance. He also claims the District Court abused its discretion in valuing the 

missing jewelry at $50,000 and requiring Herb to either return the jewelry or pay Anne its 

value. As we are remanding this matter for a redetermination of income and resources 

available for purposes of calculating maintenance and child support, and because 

property distribution may serve in some instances as an alternative to maintenance (See

§ 40-4-202(1)(c), MCA), it may be necessary for the District Court upon remand to 

review the distribution of the marital assets and debt as well. We leave this determination 

to the District Court. 

¶42 Lastly, we reject Herb’s argument that the District Court abused its discretion by 

issuing a “punitive decree.” The District Court was presented with conflicting evidence 

during the proceeding, and the court’s decree repeatedly referenced Herb’s lack of 

credibility. As we have frequently stated, “It is not this Court’s function, on appeal, to 

reweigh conflicting evidence or substitute our evaluation of the evidence for that of the 

district court. We defer to the district court in cases involving conflicting testimony 

because we recognize that the court had the benefit of observing the demeanor of 

witnesses and rendering a determination of the credibility of those witnesses.” State v. 

Bieber, 2007 MT 262, ¶ 23, 339 Mont. 309, 170 P.3d 444 (citation omitted). We 
18

conclude that though remand is necessary for the reasons stated, the decree issued by the 

District Court was not punitive.

CONCLUSION

¶43 For the foregoing reasons, we affirm the District Court’s imputation of Herb’s 

earning capacity at $100,000 but reverse and remand the court’s inclusion of Bunny’s 

monetary gifts into his annual resources for purposes of child support and spousal 

maintenance calculation. 

¶44 Reversed and remanded for further proceedings consistent with this Opinion. 

/S/ PATRICIA COTTER

We Concur: 

/S/ MIKE McGRATH

/S/ JAMES JEREMIAH SHEA

/S/ MICHAEL E WHEAT

/S/ JIM RICE