The opinion
January 31 2012
DA 10-0553
IN THE SUPREME COURT OF THE STATE OF MONTANA
2012 MT 18
IN RE THE MARRIAGE OF
PHILIP J. TUMMARELLO,
Petitioner and Appellant,
and
VALERIE TUMMARELLO,
Respondent and Appellee.
APPEAL FROM: District Court of the Twenty-First Judicial District,
In and For the County of Ravalli, Cause No. DR 5-184
Honorable Jeffrey H. Langton, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Quentin M. Rhoades, Robert Erickson; Sullivan, Tabaracci & Rhoades,
P.C.; Missoula, Montana
For Appellee:
P. Mars Scott; P. Mars Scott Law Offices; Missoula, Montana
Submitted on Briefs: November 2, 2011
Decided: January 31, 2012
Filed:
__________________________________________
Clerk
Justice Beth Baker delivered the Opinion of the Court.
¶1 Petitioner Phillip Tummarello (Phil) appeals three separate orders of the Twenty-
First Judicial District Court pertaining to the dissolution of his marriage to Valerie
Tummarello (Valerie). We affirm.
¶2 We address on appeal whether the District Court abused its discretion in:
¶3 1. Determining and distributing the marital estate;
¶4 2. Determining the children would reside primarily with Valerie under the
parenting plan; and
¶5 3. Calculating Phil’s child support payments.
PROCEDURAL AND FACTUAL BACKGROUND
¶6 Phil and Valerie began their relationship in 1993, married in 2003, and
commenced dissolution proceedings in 2005. After five years of litigation, the District
Court held bifurcated bench trials to address three separate aspects of the dissolution: the
parenting plan, child support obligations, and division of the marital estate. As Phil
challenges the trial court’s determinations in each respect, we provide a comprehensive
review of the facts.
A. Property Division
¶7 In 1989, Phil and his then-girlfriend Marisa Cassetta purchased a home in El
Granada, California (El Granada) for $289,000. They later married and subsequently
divorced, but Phil retained El Granada. In late 1993, Phil and Valerie began their
relationship. After approximately two years, Valerie moved into the El Granada property
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with Phil. In April 1996, the parties’ first child, M.T., was born. Valerie took several
months off work to care for M.T. before returning to part-time employment. In January
1997, the parties signed and submitted a Declaration of Domestic Partnership to Phil’s
employer. In that declaration, the parties agreed they were in a committed relationship,
they lived together, and they would be responsible for each other’s living expenses and
debts. While residing in El Granada, Valerie paid for household and child care expenses
and assisted Phil in maintenance projects, including wallpapering a bathroom.
¶8 In 1997, Phil and Valerie purchased a vacation home in Truckee, California
(Truckee) for $148,250. Trial testimony indicated he could not qualify for a loan to
finance Truckee without Valerie’s participation in the purchase. The deed listed the
parties as tenants in common with Phil having a 55% interest and Valerie having a 45%
interest in the property. Valerie stated this distribution was meant to reflect that Phil had
made the down payment. Phil financed the initial expenses for Truckee by taking equity
from the El Granada property. Phil also paid the mortgage payments and maintenance
association fees on Truckee. Valerie landscaped part of the driveway, built a small
irrigation system, and maintained the outside portions of the house. Truckee was sold in
2004 and the proceeds from that sale totaled a little over $290,000.
¶9 In 1999, Valerie and M.T. moved out of El Granada to East Bay, California.
Valerie then resumed working full-time and M.T. attended daycare. Valerie worked for
the California State Automobile Association for ten years prior to the parties’ move to
Montana. During 2000 and 2003, her income averaged approximately $100,000 per year.
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Although the parties resided separately from 1999 to 2003, they spent holidays together
at Truckee. In 2001, Valerie requested her name be removed from the mortgaged
Truckee title so she could qualify for a mortgage on her own home. Phil agreed and
Valerie granted her interest in Truckee to Phil. Valerie testified she made offers on three
different properties but was outbid on each. She stated she was unable to purchase real
property in her own name due to the competitive real estate market in California at that
time.
¶10 Valerie and M.T. moved back into El Granada with Phil in 2003. By that time,
Phil had suffered a work-related injury resulting in temporary disability. The parties
married on August 16, 2003. Phil testified the fair market value of El Granada at the time
of the marriage was $630,000. In October 2003, Phil added Valerie’s name to the El
Granada deed and the parties owned the property as tenants in common. Phil paid the El
Granada mortgage payments and property taxes. He also testified he paid the utilities and
performed maintenance and made significant improvements on that property. Valerie
testified that when she lived at El Granada, she paid for groceries, household expenses,
and entertainment along with performing maintenance on the home and yard. Valerie
also paid for all expenses related to M.T., with the exception of a crib Phil bought. She
noted these expenditures included daycare and nanny services totaling $12,000 a year.
Valerie also paid off her student loans during this time.
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¶11 In 2004, Phil and Valerie bought a home on Iron Cap Drive in Stevensville,
Montana (Iron Cap) for $367,000. They purchased Iron Cap as joint tenants with rights
of survivorship and paid the $74,000 down payment with funds derived from refinancing
El Granada. In March 2004, Valerie gave birth to the parties’ second child, V.T. The
parties moved to Montana in August that year. Valerie left her job upon moving to
Montana and has earned no significant income since. In December 2004, unable to return
to work, Phil began receiving disability retirement benefits. By the time of trial, his
pension benefits amounted to approximately $7,400 per month, two-thirds of which Phil
claims is tax-free.
¶12 On November 30, 2005, Phil filed for dissolution of the marriage but the parties
continued to live together at Iron Cap. In 2006, El Granada was sold and the proceeds,
amounting to approximately $241,600, were deposited in the parties’ joint bank account
pursuant to order of the District Court. In 2007, Phil moved out of Iron Cap and Valerie
continued to reside on the property.
¶13 In October 2009, the court conducted a bench trial on the division of the marital
estate. Valerie argued she had a one-half interest in Iron Cap. Phil claimed Valerie had
no interest in Iron Cap or the proceeds from El Granada or Truckee because El Granada
was his premarital property, and Truckee and Iron Cap were purchased with funds from
El Granada. In its order, the District Court found both El Granada and Truckee were
marital assets. The court based its determination on the contributions the parties made
throughout their relationship, along with Phil’s act of transferring one-half interests in
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both properties to Valerie. Valerie provided an appraiser at the hearing who estimated
the fair market value of Iron Cap in 2008 to be $675,000. Phil hired a second appraiser
who placed that figure at $482,000. After reviewing the testimony of both appraisers, the
District Court adopted the lower value provided by Phil’s appraiser. The court then
issued a distribution scheme for Iron Cap which allowed both parties an opportunity to
buy out the other’s interest in Iron Cap by paying half of its appraised value. If neither
Phil nor Valerie executed that option, Iron Cap was to be sold with the proceeds split
equally between the parties. The court also ordered the remaining proceeds from the El
Granada property to be divided equally between the parties. Although that amount
initially was over $240,000, the parties have all but exhausted those funds to pay for their
extensive litigation costs, expert witness fees and the multiple evaluations conducted in
the course of this proceeding. The court found there should be no division of either
party’s retirement assets and each would keep his or her separate retirement funds.
B. Parenting Plan
¶14 In late 2006 and early 2007, the parties underwent parenting evaluations by
clinical psychologists Phil Bornstein and Hallie Bornstein Banziger (the Bornsteins). In
February 2007, the Bornsteins issued their joint report recommending equal parenting
time in alternating week-on, week-off schedules, with one day mid-week with the
non-residential parent. Phil first filed an objection to the report, in part, because it failed
to adequately evaluate Valerie’s mental health and fitness to parent. Valerie later
objected to the report because the recommended parenting time was premised on an
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erroneous determination of V.T.’s age. Valerie also objected insofar as the report stated
Phil had “an absence of major psychopathological symptomatalogy [sic].” In support of
his objection, Phil hired an expert to evaluate the Bornsteins’ Report and additional
experts to evaluate Valerie.
¶15 In May 2007, the court held a hearing to determine an interim parenting plan and
ordered a temporary parenting schedule in accordance with the recommendation in the
Bornsteins’ Report. The court also appointed Nancy Smith as Guardian ad Litem (GAL)
for the parties’ children. The appointment vested Smith with authority to establish and
modify a parenting schedule during the pendency of the dissolution proceedings. Smith
spent several months working with both parties and interviewing numerous people in
preparation for making recommendations for a final parenting plan. However, the
communication between Valerie and Smith broke down when Smith refused to make a
recommendation regarding Valerie’s request to take the children to California to visit
relatives in December 2007. As a result, Valerie was forced to cancel her trip days before
she was to leave and after she had purchased airline tickets.
¶16 In April 2008, Smith issued her GAL Recommendations for Permanent Parenting
Plan and Change in Parenting Schedule. Under the new plan, instead of the alternating
week schedule, the children would spend every other weekend with Valerie but reside
primarily with Phil. Smith testified she developed this schedule by taking Valerie’s
suggested parenting plan and reversing it, putting Valerie in the position she had
proposed for Phil. On Valerie’s motion, the court set a hearing on Smith’s
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recommendations. At the conclusion of the hearing, the court found Smith’s report
contained conclusory and negative statements about Valerie which were in direct
contradiction to Smith’s earlier findings in an Interim Status Report and to the opinions
of experts who evaluated Valerie in this matter. The court went on to list several
deficiencies in Smith’s report and indicated the breakdown in trust and communication
between Valerie and Smith seriously compromised Smith’s ability to act as GAL. As a
result, the court subsequently ordered the interim parenting plan be restored with the
schedule proposed by the Bornsteins, appointed Julie Crane as Supplemental GAL, and
limited Smith’s GAL authority to communicating with Crane regarding Smith’s previous
investigative work.
¶17 Crane conducted her own investigation during which she met with Phil and
Valerie numerous times, spoke with the children several times, communicated with
Smith, interviewed witnesses, reviewed hearing transcripts, and reviewed all the expert
reports prepared in this case. On November 6, 2008, she issued her Supplemental GAL
Report. Crane found both parties to be loving, capable, and competent parents. Based on
the best interests of the children, and considering the wishes of M.T., Crane
recommended the children reside primarily with Valerie but have extended weekend and
alternating overnight mid-week visits with Phil.
¶18 In December 2008, the court held a bench trial on the parenting plan in which
Smith and Crane both testified regarding their reports. In its August 2009 order, the court
entered detailed findings of fact and concluded that Crane’s report was in the best
8
interests of the children and would be adopted as the Final Parenting Plan. Under that
Plan, the children reside with Valerie and have extended weekends with Phil every other
week. During the extended weekends, M.T. resides with Phil from Wednesday after
school (or beginning at 9:00 a.m. during the summer) until Sunday at 7:30 p.m. V.T.’s
extended weekend schedule is identical, except that it begins Thursday instead of
Wednesday. On alternating weeks, the children each have one overnight visit with Phil
mid-week, beginning after school and ending when they go to school the following
morning (or, during the summer, from 9:00 a.m. the first day until 9:00 a.m. the
following day).
C. Child Support
¶19 In September 2010, the court held a hearing regarding child support. Phil testified
that, while his tax returns for 2008 demonstrated none of his income was taxed, about a
third of his income usually is taxable. Phil did not offer his 2009 federal income tax
return into evidence. Based on Phil’s documentation from 2008, the court did not award
Phil any tax deductions in its calculation of child support. In determining its calculations,
the court concluded M.T. and V.T. spend five and four days with Phil, respectively, over
a two-week period. However, Phil claims the court’s final parenting plan actually
reflected M.T. spends six days with Phil and V.T. spends five days with Phil during each
two-week period.
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¶20 Finally, the court ordered the parties to pay their own attorney’s fees and costs,
except Phil was ordered to pay the attorney’s fees, expenses, and costs Valerie incurred in
defending against Phil’s claim that she was mentally unfit to parent the children.
STANDARD OF REVIEW
¶21 We review a district court’s factual findings pertaining to the division of marital
assets and a parenting plan to determine if they are clearly erroneous. In re Marriage of
Thorner, 2008 MT 270, ¶ 20, 345 Mont. 194, 190 P.3d 1063. “A finding is clearly
erroneous if it is not supported by substantial evidence, the district court misapprehended
the effect of the evidence or our review of the evidence convinces us that the district
court made a mistake.” In re Marriage of Crilly, 2005 MT 311, ¶ 10, 329 Mont. 479, 124
P.3d 1151. If the court’s findings are not clearly erroneous, we will reverse only if the
district court abused its discretion. Crilly, ¶ 10. Likewise, we will not overturn a district
court’s child support award absent an abuse of discretion. In re Marriage of Graham,
2008 MT 435, ¶ 8, 347 Mont. 483, 199 P.3d 211. “[T]he test for an abuse of discretion is
whether the district court acted arbitrarily without employment of conscientious judgment
or exceeded the bounds of reason resulting in a substantial injustice.” In re Marriage of
Jackson, 2008 MT 25, ¶ 9, 341 Mont. 227, 177 P.3d 474.
DISCUSSION
¶22 1. Whether the District Court abused its discretion in determining and
distributing the marital estate.
¶23 A district court is vested with broad discretion to apportion a marital estate in a
manner equitable to each party under the circumstances. In re Marriage of Bartsch, 2007
10
MT 136, ¶ 9, 337 Mont. 386, 162 P.3d 72; In re Marriage of Clark, 2003 MT 168, ¶ 20,
316 Mont. 327, 71 P.3d 1228. Specific factors the trial court must consider, set forth in
§ 40-4-202(1), MCA, are:
the duration of the marriage and prior marriage of either party; the age,
health, station, occupation, amount and sources of income, vocational
skills, employability, estate, liabilities, and needs of each of the parties;
custodial provisions; whether the apportionment is in lieu of or in addition
to maintenance; and the opportunity of each for future acquisition of capital
assets and income. The court shall also consider the contribution or
dissipation of value of the respective estates and the contribution of a
spouse as a homemaker or to the family unit. In dividing property acquired
prior to the marriage; property acquired by gift, bequest, devise, or descent;
property acquired in exchange for property acquired before the marriage or
in exchange for property acquired by gift, bequest, devise, or descent; the
increased value of property acquired prior to marriage; and property
acquired by a spouse after a decree of legal separation, the court shall
consider those contributions of the other spouse to the marriage, including:
(a) the nonmonetary contribution of a homemaker;
(b) the extent to which such contributions have facilitated the
maintenance of this property; and
(c) whether or not the property division serves as an alternative to
maintenance arrangements.
Based upon these factors, the statute directs the district court to “finally equitably
apportion between the parties the property and assets belonging to either or both,
however and whenever acquired and whether the title thereto is in the name of the
husband or wife or both.” Section 40-4-202(1), MCA.
¶24 The District Court found that for most years since 1995 the parties have used the
entirety of their collective incomes to support themselves and their children; that the
parties purchased Truckee together; that, although Phil had paid the mortgage and other
expenses related to the California properties, Valerie paid the remainder of the family’s
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household and living expenses; that, while the parties were separated, Valerie provided
care and the majority of financial support for M.T.; that the parties’ move to Montana
required Valerie to give up her job and career, partially in consideration for which Phil
transferred to Valerie an interest in the California properties; and that, following their
relocation, Phil supported the family financially and Valerie provided the non-monetary
contributions of homemaker and primary care provider for the children. Consequently,
the court determined both El Granada and Truckee were marital assets. Since the
proceeds from sale of the two properties were used to purchase and make improvements
to Iron Cap, the court also found it to be a marital asset.
¶25 Phil attacks the District Court’s property division on several grounds. He first
asserts the court erred when it included both El Granada and Truckee in the marital
estate. Phil argues that because he acquired El Granada before his relationship with
Valerie, made all payments associated with that property, and purchased Truckee with the
equity from El Granada, the proceeds of both should be excluded from the marital estate.
We disagree. As noted above, the statute directs apportionment of all property belonging
to either or both spouses, “however and whenever acquired.” Section 40-4-202(1),
MCA. In determining the division of the property acquired prior to the marriage, the
statute sets forth specific factors to guide the court’s determination. When a trial court’s
findings reflect that it properly considered the various factors enumerated in the statute, it
will not be held in error. In re Petition of Fenzau, 2002 MT 197, ¶ 36, 311 Mont. 163, 54
12
P.3d 43. Here, the District Court carefully weighed and properly considered all the
statutory factors.
¶26 Although Phil stated “Valerie contributed nothing to the preservation or
maintenance of the properties[,]” the statute requires consideration of Valerie’s
contributions “to the marriage,” including but not limited to the extent to which those
contributions facilitated the maintenance of the pre-acquired property. Section 40-4-
202(1) and (1)(b), MCA (emphasis added); In re Marriage of Funk, 2012 MT 14, ¶ 25,
___ Mont. ___, ___ P.3d ___. There is substantial credible evidence in the record to
support the District Court’s finding that Valerie made significant contributions to the
marriage. First, the testimony demonstrated that Valerie helped maintain both properties
by performing interior and exterior projects. Second, Phil would not have qualified to
buy Truckee without Valerie. Third, when Valerie was working, she earned a substantial
salary and used those funds to pay for household expenses and support of the family. She
paid for the expenses related to M.T., including daycare and nanny costs of $12,000 a
year. These expenditures freed Phil’s income to make payments on the properties.
Finally, when Valerie was not working, she provided child care herself which again
allowed Phil to pay for the mortgages and improvements. The District Court considered
the assets and liabilities of each of the parties and found they combined their resources to
divide expenses for support of the family and maintenance of the properties. It did not
abuse its discretion when it considered the proceeds of El Granada and Truckee as marital
assets.
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¶27 Phil next asserts the District Court’s equal division between the parties of proceeds
from sale of the properties was clearly erroneous because Valerie’s expenditures
represented merely a fraction of the amount Phil paid in down payments, mortgage
payments, maintenance fees and taxes on the properties. After reviewing the extensive
record and the District Court’s findings and conclusions, we conclude the court properly
followed the directives of the statute. The particularity and comprehensiveness of the
court’s findings in this case demonstrate it gave conscientious consideration to both
parties’ monetary and nonmonetary contributions to the marriage. In particular, the court
specifically noted Phil paid the mortgages and other expenses related to El Granada and
Truckee. Phil argues the District Court erred in finding he restored Valerie’s name to the
Truckee property. This assertion is directly contradicted by Phil’s deposition testimony,
in which he stated he put Valerie’s name back on the title after they were married and
that the Truckee sales check was made payable to both of them. Phil agreed the proceeds
were paid to the parties jointly at the time the property was sold.
¶28 As specifically contemplated by the statute, the court denied Valerie’s request for
maintenance, in part, because she would receive liquid assets of one-half the remaining
proceeds from the properties to pay her reasonable living expenses. Clearly,
“pre-acquired property can be distributed to a non-acquiring spouse in lieu of
maintenance, regardless of whether she contributed to its increase in value, if the
‘property division serves as an alternative to maintenance arrangements.’” In re
Marriage of Rolf, 2003 MT 194, ¶ 22, 316 Mont. 517, 75 P.3d 770 (emphasis in original)
14
(quoting § 40-4-202(1)(c), MCA) (overruled on other grounds by Funk, ¶ 25). Funk did
not disturb Rolf’s recognition that distribution of property in lieu of maintenance is
appropriate under the statute if the District Court makes clear its intention to do so. Funk,
¶¶ 19, 24.
¶29 Finally, Phil asserts the District Court erred when it failed to account for the
increased value of El Granada and Truckee due to market factors pursuant to In re
Marriage of Dahm, 2006 MT 230, ¶ 27, 333 Mont. 453, 143 P.3d 432. The District
Court, however, specifically noted Valerie’s contributions to the properties and Phil’s
failure to demonstrate whether improvements had been made before or during the parties’
relationship. Moreover, we have now rejected the notion “that the non-acquiring spouse
is ‘entitled only to an equitable share of the appreciated or preserved value of [husband’s]
pre-acquired and gifted contributions which is attributable to her efforts.’” Funk, ¶ 26
(citation omitted). Instead, a trial court has discretion to examine the circumstances
surrounding each case where pre-acquired property is at issue:
The court’s decision with respect to this category of property must
affirmatively reflect that each of these factors was considered and analyzed,
and must be based on substantial evidence. However, we stress that while
the factors set forth in § 40-4-202(1)(a)-(c) must be considered by the court,
they are not limitations on the court’s obligation and authority to equitably
apportion all assets and property of either or both spouses based upon the
unique factors of each case.
Funk, ¶ 19. The reason for any appreciation in value of El Granada and Truckee, while a
factor for consideration, is not determinative of Valerie’s equitable share of the marital
estate.
15
¶30 Here, the District Court followed the directive of § 40-4-202(1), MCA, and
properly considered Valerie’s contributions to the marriage as a homemaker, how those
contributions facilitated the maintenance of the properties, and whether a maintenance
award was appropriate given the court’s property division. The court also considered
factors unique to this case, including Phil’s act of adding Valerie’s name to the El
Granada deed to serve as a financial safety net for Valerie in exchange for foregoing her
career in California and moving to Montana. Phil has not carried his burden of
demonstrating the District Court’s findings were clearly erroneous or otherwise
constituted an abuse of discretion.
¶31 2. Whether the District Court abused its discretion in determining the children
would reside primarily with Valerie under the parenting plan.
¶32 Phil asserts the District Court erred in its determination of a final parenting plan by
failing to consider adequately the recommendations of GAL Smith and the Bornsteins. In
essence, Phil argues Crane was not qualified to offer opinions as to the children’s best
interests because her credentials were not as expansive as Smith’s or the Bornsteins’.
Phil also contends the District Court’s reasons for rejecting Smith’s report did not relate
to the best interests of the children. We find no merit in any of these arguments.
¶33 The District Court considered at length the testimony and recommendations of
both GALs, the Bornsteins, and the myriad professionals involved during the course of
the proceeding. The court specifically noted Smith’s extensive investigation and
suggested she and Crane collaborate during Crane’s formation of her supplemental
report. The court’s findings include a detailed summary of each GAL’s testimony, the
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expert testimony the court heard at the previous hearing on Smith’s recommendations,
and a thorough analysis of the best interests of the children, as set forth in § 40-4-212,
MCA. The record demonstrates the court carefully evaluated the information provided
by Smith, the Bornsteins, and Crane, as well as the parties’ retained experts.
¶34 Phil’s argument that Crane’s recommendations are entitled to less weight because
her educational and professional degrees do not stack up to those of Smith and the
Bornsteins is unavailing. Crane testified regarding her training and extensive experience
as a GAL, and Phil cites no authority for the proposition that the District Court should
have disregarded her testimony solely on the basis of her educational background.
Rather, we have held that judgments regarding the credibility of witnesses and the weight
to be given their testimony are within the province of the District Court and we will not
substitute our judgment for its determinations. In re Marriage of Meeks, 276 Mont. 237,
247, 915 P.2d 831, 837-38 (1996). We have also specifically recognized the District
Court’s broad discretion when considering the parenting of a child. “Child custody cases
often present the court with difficult decisions. We must presume that the court carefully
considered the evidence and made the correct decision.” In re Parenting of N.S., 2011
MT 98, ¶ 18, 360 Mont. 288, 253 P.3d 863. Here, Phil’s emphasis on Smith’s and the
Bornsteins’ superior educational background, in itself, is insufficient to show the court’s
conclusions were clearly erroneous.
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¶35 Despite their differing recommendations, the three expert reports were unanimous
in their views that both Phil and Valerie are capable, loving parents committed to their
children. The District Court was entitled to evaluate the reports and testimony and adopt
those recommendations it determined to be in the children’s best interest. We find no
merit in Phil’s contention that the District Court dispensed with Smith’s recommendation
in favor of Crane’s without considering the best interests of the children. The court
specifically found “Smith’s proposed final parenting plan is not in the best interests of the
children.” This District Court reached this determination based on the following:
The GAL’s Recommendations are deficient in several respects, including:
(1) the primary basis for the GAL’s Recommendations appears to be
Ms. Smith’s perception that Valerie has disregarded her authority;
(2) another important basis for the GAL’s Recommendations appears to be
Ms. Smith’s unsubstantiated and irrelevant perceptions that Valerie is
intentionally draining the parties’ marital assets through litigation and
deliberately choosing not to work; (3) there is a lack of reference to any
supporting factual data for Ms. Smith’s opinions and conclusions;
(4) Ms. Smith failed to solicit or consider the wishes of the parties’
children; and (5) Ms. Smith failed to visit with 12-year-old M.T. even once
during the ten months preceding the filing of her report.
¶36 The court also was concerned with “Smith’s technique of reversing one parent’s
suggested parenting plan in favor of the other parent” because it appeared “to be a
punitive technique with no nexus to the best interests of the children.” In contrast to
Smith’s plan, the court noted the following about Crane’s recommendation:
Ms. Crane met with both parties five times, spoke with the parties
numerous times via phone, spoke with the parties’ children several times,
spoke with Ms. Smith, interviewed witnesses, reviewed transcripts of
various hearings in this case, and reviewed all expert reports prepared in
this case. . . . Ms. Crane found that both parties are loving, capable, and
competent parents. Based on the best interests of the children, and
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considering the wishes of M.T., Ms. Crane recommended the children
reside primarily with Valerie, the children spend extended weekends with
Phil every other weekend, and that during the weeks that Phil does not have
an extended weekend, the children have separate mid-week overnight visits
with him in order to give each child time alone with each parent. . . . In
addition to recommending a final parenting plan, the Supplemental GAL’s
Report provides the data and expert opinions on which Ms. Crane relied in
making her recommendation. In making her recommendation, Ms. Crane
considered the wishes of the children.
Phil states “the district court offers no indication whatsoever why it flatly rejected the
Bornsteins’ professional opinion that the children should spend alternating weeks with
their parents.” Again, Phil has mischaracterized the record. The court found the
following in regard to an equal-time parenting plan:
V.T. (age 5) is too young to express his wishes for a parenting schedule.
Ms. Crane found that V.T. has a difficult time separating himself from his
mother at the end of her parenting weeks and spends considerable time on
the phone with his mother while in his father’s care. Ms. Crane observed
V.T. to be more confident and outgoing in the presence of his mother than
in his father’s presence. On the basis of these observations, Ms. Crane
concluded that V.T. needs to spend more time with his mother than the
current alternating week schedule permits.
Interaction and interrelationship of the child with the child’s parents and
siblings.
M.T. and V.T. are very close and have remained together under the current
alternating week schedule. It is important for them to continue to remain
together. However, they are eight years apart in age, and M.T. has
expressed a wish to have occasional time alone with each parent.
There was substantial evidence to support the conclusions reached by the District Court
regarding the parenting plan. Both the record and the court’s findings demonstrate the
trial judge exhaustively considered each witness’s testimony, qualifications, and reports
to determine the best interests of the children in rendering its final parenting plan. We
find no clear error in its findings and no abuse of discretion in its determination.
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¶37 3. Whether the District Court abused its discretion in calculating Phil’s child
support payments.
¶38 Phil contends the District Court’s child support calculation failed to deduct taxes
from Phil’s disability income and pension even though the court found one-third of Phil’s
income is taxed. In calculating a parent’s income for purposes of a child support
calculation, a district court is required to make deductions from that parent’s income.
Admin. R. M. 37.62.116. One of the allowable deductions is “the actual income tax
liability based on tax returns. If no other information is available, use the tax tables
which show the amount of withholding for a single person with one exemption[.]”
Admin. R. M. 37.62.110(1)(d). Here, Phil’s tax returns for both 2007 and 2008 showed
he had no actual tax liability; however, he asserted one-third of his income usually is
taxed. Phil did not enter his 2009 tax return into evidence even though the court
conducted a hearing regarding child support in September 2010. While Valerie entered
her 2009 tax return into evidence, Phil failed to do so and he never asserted it was
unavailable. In compliance with the rule, the District Court calculated the deductions
“based on tax returns” submitted by the parties. Based on Phil’s 2008 tax return, the
court awarded Phil no tax deduction in its child support calculation. The court did not
abuse its discretion in declining to award Phil a deduction for which he provided no
evidence.
¶39 Finally, Phil contends the District Court erred when it calculated Phil’s child
support based on M.T. spending five days with Phil and V.T. spending four days with
Phil when the court’s parenting plan actually allocated six and five days with the
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children. Phil argues the error was compounded when the court calculated the number of
days per year the children spend with him.
¶40 A “day” for the purpose of child support is “when a child spends the majority of a
24 hour calendar day under the control of the parent.” Admin. R. M. 37.62.138(3).
Valerie argues that under the strict application of this language, Phil actually received
more credit than he was due because he should not be entitled to any “day” when the
children are in school and not under Phil’s control. We previously affirmed a District
Court’s determination on this issue in In re Marriage of Kummer, 2002 MT 168, 310
Mont. 470, 51 P.3d 513. We noted the lack of guidance provided in the rule for
determining what constitutes a “majority of the day” when children spend part of the day
not under the explicit control of either parent. Kummer, ¶ 28. Absent articulation of a
more precise standard, we stated, “we will review a district court’s determination of
which parent ‘gets credit’ for certain hours of a day[] for an abuse of discretion.”
Kummer, ¶ 29.
¶41 Here, while the District Court did not address the specific hours M.T. and V.T.
spend with Phil on the days they are in school, it appears to have counted the days in each
two-week period by combining consecutive twenty-four hour periods as stated in the
parenting plan. Although the specific calculation may vary by when the twenty-four hour
period begins and ends, and whether it occurs during the school year or summer schedule,
we cannot conclude the District Court abused its discretion in applying the language of
the administrative rule and we will not reverse the court on this ground.
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¶42 Finally, Valerie requests we order Phil to pay her attorney fees and costs incurred
on this appeal. We may award sanctions, including costs and attorney’s fees, in an appeal
where the claim for relief is “frivolous, vexatious, filed for purposes of harassment or
delay, or taken without substantial or reasonable grounds.” M. R. App. P. 19(5). In
support of her position, Valerie underscores that the District Court awarded Valerie her
attorney’s fees and costs incurred in rebutting Phil’s allegations regarding her mental and
psychological condition. This is not an argument he has renewed on appeal. Valerie also
asserts the issues Phil raised were groundless because they were fully analyzed and
addressed in the detailed, complete and accurate findings of the District Court. Although
we find Phil’s arguments lack merit, we cannot conclude they were entirely frivolous or
lacking in good faith. In re Chamberlin, 2011 MT 253, ¶ 26, 362 Mont. 226, 262 P.3d
1097. Accordingly, we decline to award Valerie her attorney’s fees in this appeal.
CONCLUSION
¶43 Phil has failed to show the District Court’s equitable distribution of the marital
estate, its determination of an appropriate parenting plan for the children, or its
calculations of child support lacked credible support in the evidence or otherwise
constituted an abuse of discretion. The judgment of the District Court is affirmed in all
respects.
/S/ BETH BAKER
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We concur:
/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
/S/ JIM RICE
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