                                   NO.     95-151
               IN THE SUPREMECOURT OF THE STATE OF MONTANA
                                         1995


IN RE THE MARRIAGE OF
SHARONGAYLE WAITE,
f/k/a Sharon Gayle Greenlee,
               Petitioner   and Appellant,
                                                           SEP 08 19%
         and
ROGERWAYNEGREENLEE,
               Respondent   and Respondent.



APPEAL FROM:          District  Court of the Thirteenth Judicial District,
                      In and for the County of Yellowstone,
                      The Honorable Russell K. Fillner,   Judge presiding.


COUNSEL OF RECORD:
               For Appellant:
                      Kevin T. Sweeney, Sweeney & Healow,
                      Billings, Montana
               For Respondent:
                      Robert J. Wailer, Wailer       & Womack,
                      Billings, Montana


                                         Submitted   on Briefs:   July   13, 1995
                                                       Decided:   September   8, 1995
Filed:
Justice              Terry          N. Trieweiler                      delivered            the         opinion          of        the      Court.

           The appellant,                           Sharon       Gayle         Waite,            filed         a renewed                 motion             for
modification                      of decree              of dissolution,                    a motion             to determine                       dollar

value           of         judgment,                and        a motion              to     determine                judgment,                      in      the

District                  Court        for     the       Thirteenth                Judicial             District              in Yellowstone

County          in         which         she asked              the      District               Court       to     change           residential

custody               of         the         parties'            minor             son,         modify             the        child            support

language                  found        in     the      dissolution                 decree,          and determine                        the        amount

the        respondent,                         Roger           Greenlee,                  owed           her        pursuant                   to           the

dissolution                     decree.              The District                  Court         granted           Waite's               motion             for

change               of         residential                  custody,               established                  the          child            support

Greenlee                  owed         Waite,            and     denied             Waite's              motion            for        payment                    of

income            from           Greenlee's                partnership.                     Waite           appeals                the     District

Court's              child             support           and     partnership                     decisions.                   We affirm                     the

order        of           the     District              Court.

           Waite            raises            the       following              issues:

           1.              Did         the          District             Court            err       when,            for           purposes                      of

calculating                      child        support,            it     did        not     consider               Greenlee's                  passive

income?

           2.              Did      the       District           Court         err        when it           failed            to    award                Waite

a share              of     Greenlee's                  passive          partnership                    income?

                                                          FACTUAL BACKGROUND

           Sharon                 Gayle         Waite           and       Roger           Wayne            Greenlee                are         in         what

appears              to     be the             final         round       of        a twelve-round                    boxing              match.                  By

all        accounts,                   Waite           and      Greenlee              have         still           not        removed                    their


                                                                               2
gloves,         tattered                as      they        may be,            and        instead,              continue                   throwing
powerful         head            and body             shots         in    an obvious                 attempt                to        reduce          one

another         to         vegetable                matter.               What          follows            is         our             attempt              to

referee         the        final         round.              See In re Marriage             of Greenlee          ( 19 9 1) , 2 4 9 Mont .

521,      816 P.2d               1073.

          Greenlee               is     a dentist,                and during                 the     marriage                entered                into

the      Rose         Park            Professional                Center             Partnership                  with                four         other

dentists.                 As     a result,                 he became             a one-fifth                 owner               of        the      Rose

Park      Professional                   Center.              The sole               purpose         of     the         Partnership                        is

to     "own,     manage               and maintain                the     Center,             the     building                   in which             the

partners         maintain               their         offices."                The partnership                        generates                   income

by charging                the        partners          and two non-partner                           tenants               monthly                rent,

although             it        appears              from      the        record             that      the             two         non-partner

tenants         pay         an        insubstantial                   amount           of     rent         as         compared                to      the

partners.                  The         partnership                uses          the         monthly          rent                to        make       its

regular         mortgage                 payments             and        pay      necessary                expenses.                         At     some

point,         the        partners             agreed          that       they         would         use        all         but         $1,000             of

each      of    the        partner's                yearly        partnership                 distributions                           to     make an

additional                payment          on the          mortgage             in     an effort             to        retire              the      debt

owed for         the           Center          at    an early            date.

          On     October                 16,        1990,         the          District              Court             dissolved                    this

couple's         marriage,                   ordered          joint        custody,                and designated                          Greenlee

as     the     primary                residential               custodian               of     the        two         minor             children,

Jene ' and Ryan.
           Eventually,                    Waite          moved             the        District                 Court         to         designate                her
the     primary           residential                    custodian                    of Ryan,             and it            did        so.         However,
Waite       and          Greenlee               were       unable                 to        agree          on        the         amount             of      child

support            for         which              Greenlee                  was            responsible.                           Therefore,                     the

District            Court            held           a     hearing,                     following                 which             it         found             that

Greenlee           had a net                income          in         1993 of               $38,412,                that         he had interest

income        in        1993        of     $733,          and that                   he had a total                         distribution                        from

the     partnership                  in     1993 of             $7,692,                only         $1,000           of which              he actually

received.                The remaining                     $6,692                was classified                        by the             partnership
accountant               as     "passive                income,"                 on which                 Greenlee               was taxed.

           The      District                    Court            found               that           the         funds             distributed                       to

Greenlee           by the                partnership                   represent                    a return                of     Greenlee's                    own

contribution                  to the            partnership                     made during                    the     course            of     the         year.

In other           words,            Greenlee,              through                   payment             of     rent,            insured                that       at

the     end        of     each            year,          he would                 receive                 a distribution                            from         the

partnership,                  all         but      $1,000             of        which         the         partnership                    would            retain

in    order        to      more           quickly          pay         off           the      mortgage                on the             Center.                 The

District           Court            found         that          "it        is     not        fair         or reasonable                        to        include

the     passive           income            portion             of this                distribution                    as income                for         child

support          purposes                 because          it         is        not        money          over        which             Roger            has     any

control."                Therefore,                 the     court                found            that     Greenlee's                    gross            income

for     child           support            purposes                   was        $55,687,                while         his         net        income             for

child       support             purposes                was $40,145.

           The          District                  Court               found                that          the         dissolution                          decree

distributed                 Greenlee's                    interest                    in      the         partnership                     by        awarding


                                                                                 4
50 percent            to    Greenlee                and 50 percent                        to     Waite.            However,         for     the
following            reasons,                the     District                  Court           found        that      Waite         was     not

currently            entitled              to      a share            of       the       partnership               distributions:

                   (1)    the dissolution      decree                                      provided           for Waite to
           receive      her interest      only  upon                                      sale    of        the Rose Park
           Professional      Center;

                   (2)     Waite benefits from the partnership     retaining
           all  but $1,000 of partnership      distributions    in order     to
           reduce      the    debt owed on the    Rose Park    Professional
           Center;

                  (3) the   distribution    represented    a return        of
           Greenlee's   own contribution   to the partnership,      rather
           than income from an independent      source, and;

                   (4)      the  dissolution     decree                                        made it     clear   that
           Waite's      interest    in the partnership                                         represents    50% of the
           expenses       Greenlee    paid to maintain                                          his interest     in the
           partnership.
           The District               Court         concluded                  that       Greenlee           should        pay $400 per

month       in     child        support              from       December                  1993      through          June       1994,       and

$473 per         month          until           Ryan       reached              the       age of          19 or       graduated            from

high       school,         whichever                occurred               first.                The    court         also      concluded

that       Waite         was         not        entitled              to        any        part        of     the       distributions

Greenlee         had received                   from       the partnership                        since       dissolution            of the

parties'         marriage               in      October           1990

                                                                  ISSUE              1

           Did     the     District                Court        err        when,          for      purposes           of     calculating

child       support,            it      did        not     consider                  Greenlee's             passive          income?

           We have         previously                    held     that           when           reviewing           modification              of

child       custody         we will              review         the        district               court's          findings         of     fact
to      determine          whether              they        are       clearly              erroneous.                We will         review


                                                                           5
the     district                court's                decision            based           on those                  findings              of        fact      to

determine            whether                the         district               court          abused               its      discretion.                      In re

Marriage     ofElser            (Mont.           1995) , 895 P.2d                      619,         622,           52 St.          Rep.         434,        436.

We conclude                    that        the         same standard                     of        review            is         appropriate                 when

considering                a district                     court's              award          of     child               support.

           Waite         contends                that      the         District            Court          incorrectly                     applied            the

Uniform              Child              Support                 Guidelines                     or,            in           the         alternative,

misapprehended                        the        effect            of     the         evidence                concerning                     Greenlee's
income            from         the      partnership,                     and         therefore,                    awarded             insufficient

child        support.                    She           claims           that         the       correct                   application                  of     the

guidelines                in     this        case         required                that        the       District                  Court         designate

any        rent      paid             by         Greenlee               over         the           amount            necessary                  to         cover

necessary                partnership                    expenses               as income.                     Instead,                 the       District

Court        designated                     only          $1,000           of        the       money           annually                   returned             to

Greenlee            as income                    for      purposes              of       determining                      child        support.

           Waite           points                to      the          definition                   of      "gross                income"              in     the

guidelines:

           "[Glross     income"   for those who are self-employed,         or who
           receive    profits   from a business     enterprise    such as . .
           a partnership        . . . includes         gross   receipts     minus
           ordinary      and necessary     expenses     for           . business
           operation.

Rule       46.30.1508(c),                        ARM.          Waite           asserts             that       this          definition,                    along

with         5 40-4-204(l)                        and          (2),       MCA,           requires                  that           we      reverse             the

District            Court's                child          support              order.
            Waite         contends                 that        because              Greenlee              elected,                 as a member                 of

the        partnership,                     to         apply       partnership                      profits                to      payment             of     the


                                                                                6
mortgage             on the              Center,             he cannot               now claim                       that         this       income              is
unavailable                   to him to pay child                          support.                   She analogizes                        Greenlee's

partnership                   decision           to      apply         part         of        his         income            toward          payment              of

the       partnership                  mortgage               to      a "choice"                      to      otherwise                   voluntarily

invest            his         money.               However,                 the          analogy                is          not         valid.              The
partnership's                      decision             to     apply         its         profits               toward             payment           of      the

mortgage             on the              Center          limited             the          extent              to      which             Greenlee            can

"choose"                to         "invest"            his         portion               of         the        partnership                       profits.

Specifically,                       Greenlee             can         choose           to        invest               only          $1,000           of      the

partnership                    profits            or,         in      other              words,               that           portion              that           he

actually             receives.

           Greenlee                realizes            only        $1,000           of the            rental            income            returned               to

the       partners,                 which        the         court         correctly                      identified                as income               for

child        support               purposes.                 Moreover,              Greenlee                  pays          taxes         on the          full

$7,692,           even          though          he receives                  only          $1,000.

           Greenlee                 correctly                asserts           that            the          cases           upon          which          Waite

relies            do not             apply       here          because              they            all       relate              to      parents           who

have       chosen             to     earn       less         than      they          were            capable                of     earning,              while

there        is      no indication                     in     the      record             that             Greenlee               has     a choice               in

this       matter.

           Based             on our          review          of      the      record             we agree                   and conclude                  that

the       District              Court's           findings             are          not        clearly                erroneous,                 and when

it      applied              those       findings             to     its      calculation                       of      child            support,           the
District                Court          did       not          abuse           its          discretion.                            We affirm                 the

District             Court's             child          support             award.


                                                                              7
                                                                              ISSUE       2
            Did         the         District                 Court         err          when     it         failed            to        award       Waite         a

share         of        Greenlee's                    passive             partnership                  income?

           We review                      the     District               Court's           conclusions                      of      law     in     relation

to      the         division                    of        marital             property                to         determine                 whether            the

district                 court             correctly                interpreted                  the             law.            In re Marriage of Rock

(1993),            257 Mont.                    476,         480,        850 P.2d             296,         298         (citing           Schaubv. VitaRich

Dairy       (1989),                 236 Mont.                389,        391,           770 P.2d                522,        523).

           Waite              contends                that        the      District             Court's                 failure            to    award        her

a share            of Greenlee's                           partnership                  distribution                       "stood          on its         head"

the     language                    in     the       prior          decree          which        apportioned                        and distributed

the     partnership                        interest.

            In      the        decree                of     dissolution,                  the         District                Court         divided           the

interest                 in         the         Center            "50/50          between              the           parties."                   The      court

found            that          it         could            not       give           a    specific                    market             value       for       the

Center,             so        instead,                    "equitably"               divided                it        '150/50"            between          Waite

and        Greenlee.                        The           court          stated          that          Waite               and      Greenlee              "will

assume             the        risks             involved               with       this         investment,                       will       receive           the

benefit             of        any         tax        consequences,                      any     income               or     equity          upon sale ofthis

property in thefuture T’

            Waite              emphasizes                       that          the         decree                of         dissolution                  states

specifically                        that         both        she and Greenlee                         are         to       receive           the       benefit

of      "any        income"                 from          the      partnership.

            Waite             contends                that         the     District             Court's                   ruling          that     she will

not        receive             income                from         Greenlee's              share             of       the      partnership                 until

                                                                                    8
sale       of     the       partnership                    is         "utterly                not      true             and not                supported                 in
the     record."                 She initially                         asserts               that      the          decree                of    dissolution

specifically                     states             that              she       will           receive                  half          of         any          income

Greenlee              generates                 from            the         partnership,                       and            that             the         District

Court's           failure                to    award        her          50 percent                    of      this            income                alters             the

dissolution                 decree.                  Furthermore,                            Waite           asserts                 that             it      defies

"both         rules         of      grammar             and logic"                      to     hold           to        the     contrary.

           Greenlee               responds              that            the      dissolution                        decree                states            plainly
that       income            will             not      be            shared            until           the          time             of        sale          of         the

partnership                 interest.                      We agree                    with         this           interpretation                             of        the

District            Court's               decree.
           The District                       Court's                dissolution                    clearly              provided                    that         Waite

and Greenlee                     "will         receive                the       benefit               of       .             . any             income              .

upon       sale       of"         the         Center        "in          the      future."                    The partnership                                has not

sold       the        Center,                 and    Greenlee                   has          not       sold             his      interest                     in        the

partnership.                      We conclude                    that          the       District                  Court         was correct                           when

it     held       that      Waite             was not                entitled            to a share                     of     Greenlee's                     annual

partnership                 distribution                    until               sale          of     his       partnership                           interest.

           For      these           reasons,               we affirm                   the         order           of    the         District                 Court.

           Pursuant               to      Section               I,      Paragraph                   3 (cl,          Montana                Supreme                 Court

1995       Internal               Operating                Rules,              this          decision               shall             not        be cited                as

precedent             and shall                 be published                      by its             filing             as a public                        document

with       the      Clerk           of        the    Supreme                  Court            and by a report                             of        its       result

to     Montana           Law Week,                  State             Reporter                 and West                 Publishing                     Company.
We   concur:




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