PARENT WITH MAJOR DEPRESSIVE DISORDER AWARDED PRIMARY CARE

Parenting Plans: Impact of Major Depressive Disorder

Child Support: How to Modify CSED Final Temporary Order Within Pending Divorce

Equitable Division: Occupancy of Ranch Awarded Primary Custodian During Children’s Minority, Then Sell

Facts. Mom and dad were married 16 years and have 3 children. Mom has major depressive disorder and receives SSDI. One of the children has severe seizure syndrome requiring full time parenting. Mom applies to CSED shortly after petition is filed. CSED issues proposed order including findings about each parent's income. Dad does not ask for a hearing. Consequently, CSED enters a “final temporary” order. The trial court found income numbers substantially different from the CSED order. Trial court awarded mom primary care of children and adopted the CSED child support order. The trial court awarded mom exclusive use of their ranch property until the youngest child graduates from high school. Then the ranch property was to be sold and proceeds divided equally.

Parenting Plan Affirmed. There was ample evidence that mom was excellent parent, despite her disorder. Good quotation: "Moreover, the Social Security Administration's determination that an impairment prevents a person from working in a full-time job does not necessarily mean the person is incapable of parenting her children as the primary custodian.” Pesanti @ ¶12.

Child Support Reversed: The trial court did not address the income disparities between the testimony at trial and the CSED order. It should have. Because the trial court’s income numbers would produce a different child support award, the trial court either had to adopt the Guideline amount or explain by clear and convincing evidence the variance. In the course of its ruling, the Supreme Court articulated the path to modifying a CSED “final temporary” child support award at the final trial of a divorce proceeding: “… a party to a dissolution action who desires to modify a temporary support order entered by CSED under § 40-5-225(3) has a clear path. Once a temporary order is proposed, the party may seek administrative review within CSED before the order is entered as final. Admin. R. M. 37.62.949(2), 37.62.951(1). Once a final order is entered, the party may seek further modification by the court in its final decree of dissolution, provided that CSED has notice and the opportunity to participate in the proceeding. Sections 40-5-202(5)(a), -225(12), MCA.” Pesanti @ ¶25.

Equitable Division. Dad did not appeal the exclusive use award.

Pesanti v. Pesanti 2014 MT 324