                                    No.    95-549
                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          1996



IN RE THE MATTER OF THE           P ATERNITY
AND CUSTODY OF T.J.H.,
a minor child




APPEAL FROM:           District Court of the Eleventh Judicial District,
                       In and for the County of Flathead,
                       The Honorable Ted 0. Lympus, Judge presiding.


COUNSEL OF RECORD:
                For Appellant:
                       Richard DeJana,    Kalispell, Montana
                For Respondent:
                       James C. Bartlett,        Hash,    O'Brien   &   Bartlett,
                       Kalispell, Montana
                                 I
      v.mp.ui

                                          Submitted on Briefs:      June 4, 1996
                   2   2   13%                           Decided:   August 22, 1996
Justice James C. Nelson delivered the Opinion of the Court.

       The mother of the minor child appeals the findings of fact,
conclusions of law,            and order entered by the Eleventh Judicial

District Court, Flathead County increasing child support from $200

a month to $261 a month.           We affirm in part, reverse in part, and
remand for further proceedings.

                                          ISSUES

       1. Did the District Court err in imputing wages of $12,000 to

the    mother    and     Was    this     imputation of      income   supported by

substantial      evidence?
       2. Did the District Court properly apply 40.30.1520 (3), ARM,
in considering that the husband was supporting two children from

his present marriage in addition to the child for which the child

support increase was sought?
       3.     Did the District Court properly implement 46.30.1508           (2),

ARM, in not adding the husband's bonus to his gross income?
                                        BACKGROUND

       Upon the father's petition for paternity and custody of the

minor child, on August 10, .1993,                the mother and father stipulated

to    joint    custody,    that the mother would be designated as the

primary       residential parent and that child support would be

determined      within    60    days.      In its initial findings of fact,

conclusions of law and order entered May 29, 1985, the District

Court had ordered the father to pay the mother $200 a month for

child support.



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        On June 22, 1995,       the mother moved the District Court to
redetermine support for the minor child, which motion the father of
the child opposed.           The mother is a part time waitress and she
agreed to impute $8,772 as her income.         The mother stated that she
may be able to increase her work hours from 15 to 30 hours a week
to a full 40 hours a week.          The father stated that $12,000 should
be imputed to the mother as income because she is able to work full
time.     The father is a supervisory employee at Plum Creek where he
earns an annual salary of $44,055.             He is also supporting two
children from his present marriage.
        The District Court heard the matter on August 30, 1995, and
requested that both parties submit proposed findings of fact and
conclusions of law.          After considering the evidence presented and
the     trial   memoranda,    the District Court modified the existing
support order, taking into consideration that the husband supports
two other children.          The court imputed an income of $12,000 to the
mother, and determined that father's bonus is income for his hard
work and therefore is income for the benefit of his second family.
The mother appeals these findings of fact, conclusions of law and
order entered by the District Court.
                                STANDARD OF REVIEW
        We review a district court's findings of fact in child support
modification cases to determine whether they are clearly erroneous.
In re Marriage of Kovash (1995), 270 Mont. 517, 521, 893 P.2d 860,
862-63.     However, we review-a district court's overall decision on
modification of child support awards to determine whether the

                                        3
court's interpretation of the law was correct.             Marriaqe of Kovash,
893 P.Zd at 863.
                                   DISCUSSION

      1.    Did the District Court err in imputing wages of $12,000 to

the mother      and   was   this    imputation of     income    supported by
substantial    evidence?

      The mother      contends     that the     District     Court based its
imputation of income of $12,000 to her on a finding for which there

was   not   substantial     evidence.       She therefore argues that the

court's decision was clearly erroneous.             On the other hand, the
father argues that the District Court heard evidence that the

mother was capable of doing the same type of work full time and

therefore she was underemployed.
      The guideline at issue, 46.30.1513, ARM, states:

      DETERMINATION OF IMPUTED INCOME
      (1)   "Imputed income" means income not actually earned by
      a parent, but which may be attributed to the parent
      because the parent is voluntarily unemployed, is not
      working full-time when full-time work is available, or
      the parent is intentionally working below his or her
      ability or capacity to earn income.
      (2)     Income may be imputed according to one of two
      methods as appropriate:
       (a)   Determine employment potential and probable net
      earnings level based on the parent's recent work history,
      occupational     qualifications,    and   prevailing   job
      opportunities and earnings level in the community. . .
       (c) Whenever income is imputed to an unemployed parent
      who is providing in-home care for the child for whom
      support is being calculated, and if that parent would be
      required~to incur child care expenses if employed at the
      imputed level, then the imputed income should be reduced
      by the reasonable value of the parent's child care
      service.
       (d)  Income should not be imputed if any of the following
      conditions exist:
             (i)  the reasonable costs of day care for the
            parties' dependant children will offset, in
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              whole or in substantial part, the amount of
              income the custodial parent can earn.
In the instant case,        in    her   child    support   guidelines   financial
affidavit, the mother stated that she worked 15 to 30 hours a week

at $5.20 an hour.       The mother also testified that there was nothing

to prevent her from working another shift or working a 40-hour

week.    Without tips, the mother could gross $10,816 working a 40-
hour week at $5.20 an hour.              Therefore,     the   husband   suggested

imputing income at $5.77 per hour,              $5.20 base wage plus    $.S? per

hour for tips,      for a 40-hour work week for a total gross of

$12,000.      Figuring income from tips and from the base hourly wage,

the mother could work less than a 40-hour week and still make

$12,000.

        We hold that the District Court correctly imputed income to

the mother according to the methods set forth in 46.30.1513, ARM.

The court properly determined the mother's employment potential and
probable net earnings level based on her work history, occupational

qualifications,      job   opportunities,        and   earnings level in the

community.     The mother testified that she anticipated being able to

work 40 hours a week and is not physically prevented from doing so.

The District Court's interpretation and application of 46.30.1513,

ARM,    was   correct    and     its findings were within the evidence

presented.      Accordingly, we affirm the District Court's imputation

of income to the mother.
        2. Did the District Court properly apply 40.30.1520 (3), ARM,

in considering that the husband was supporting two children from



                                          5
his present       marriage in   addition to the child for which the child

support increase was sought?

        The mother contends that a court may consider the noncustodial
parent's other natural born and adopted children only when the

custodial parent petitions to increase child support.                     The mother
further contends that she did not petition for an increase in child

support     but     rather       petitioned        for   the   court    to     make   a
redetermination of child support in which she sought to increase

that support.

        Section 46.30.1520, ARM, provides in part:
        ALIMONY,    MAINTENANCE,   PRE-EXISTING   CHILD   SUPPORT
        OBLIGATIONS AND RESPONSIBILITY FOR OTHER CHILDREN
         (1) The amount of alimony or spousal maintenance which a
        parent is required to pay under a court or administrative
        order should be deducted from gross income.
         (2) For the support of children who are not subject of
        the child support action:
         (a) the amount of the order should be deducted from the
        parent's gross income if there is a pre-existing support
        order        .
         (3)   Use of the deductions provided in this rule are
        appropriate at the time of the establishment of a child
        support order.     In a proceeding to modify an existing
        order, the following limitations apply: .
         lb)    If the custodial parent with a support order
        petitions to increase'child support, all other natural
        born and adopted children of the non-custodial parent may
        be considered in determining whether to increase the
        support order.

Here,    the District Court correctly applied the guideline.                   Although
not labeled a petition to increase child support, the mother sought

a   child    support       increase     from       an    existing    support     order.

Therefore,        in determining the              increase,    the   District     Court

correctly considered the father's other natural born and adopted

children.     The District Court had the discretion to consider the


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father's present family support obligations. Accordingly, we hold

that the District Court correctly interpreted the           law in its
determination to increase the child support.

        3.   Did the District Court properly implement   46.30.1508(2),

ARM, in not adding the husband's bonus to his gross income?

        The mother argues that.the husband's bonuses should have been

included in his gross income and thus figured in the child support

calculations.      On the other hand,   the husband contends that the

District Court correctly applied 46.30.1508(2),     ARM, in excluding

his bonuses from his gross income.        46.30.1508,    ARM,   states   in

part:

        DETERMINATION OF GROSS INCOME
        (1)   In determining for each parent the resources which
        can be made available for child support, the following
        considerations apply:
         (a) "gross income" means income from any source, except
        as excluded in subsection cd), and includes but is not
        limited to income from salaries, wages, commissions,
        bonuses, earnings, profits, dividends, severance pay,
        pensions, pre-retirement distributions . . .
         (2)   In determining a parent's gross income, do not
        consider income attributable to subsequent spouses . .
        . If a person with a subsequent family has income from
        overtime or a second job, that income is presumed to be
        for the use of the subsequent family, and is not included
        in gross income for the purpose of determining support
        for a prior family. The presumption may be rebutted upon
        showing that the additional income is discretionary.

The District Court found that the husband's base income was $44,055

a year, but that he could obtain an additional sum based on merit

and extra time spent on the job.        The court also found that the

husband was a salaried employee in a supervisory position.

        We conclude that because the husband is a salaried employee in

a supervisory position,      he works extra hours as any supervisory
employee would and does not earn the additional sum of money "from
overtime or a second job".             We are not persuaded that his bonus,
which is strictly performance related, should be deemed a "second
job income" or "overtime" used for the support of his second family
under the guideline.             Clearly his bonus is simply that, a bonus,
which should be added to his gross income and considered part of
his gross income.              We hold that the District Court erred in its
interpretation       of    the    guideline.   Accordingly,   we reverse and
remand   to   the   District   Court for a determination of child support
consistent with the guideline.
     Affirmed in part, reversed in part, and remanded for further
proceedings consistent with this




              Justices




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