Marriage of Stone ( 1995 )

No. 95-017
IN THE SUPREMECOURT OF THE STATE OF MONTANA
1995
IN RE THE MARRIAGE OF
LORRIE A. STONE, n/k/a
LORRIE A. BERNARDI,
Petitioner and Appellant,
and
KEVIN D. STONE,
Respondent and Respondent.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Joel G. Roth, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Daniel L. Falcon; Matteucci, Falcon, Squires &
Lester, Great Falls, Montana
For Respondent:
Joan E. Cook; Miller & Cook, Great Falls, Montana
Submitted on Briefs: August 24, 1995
Decided: October 12, 1995
Filed:
Justice W. William Leaphart delivered the Opinion of the Court.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1995 Internal Operating Rules, the following 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 State Reporter, and West Publishing Company.
Lorrie A. Stone-Bernardi (Lorrie) appeals from the district
court order of the Eighth Judicial District Court, Cascade County,
determining child support for her two minor children, and denying
an award of attorney's fees. We affirm the District Court as
modified in this decision and remand for recalculation of child
support. The following issues are raised on appeal:
1. Did the District Court err in refusing to award Lorrie
her attorney's fees.
2. Did the District Court abuse its discretion in setting
the child support obligation.
Lorrie and Kevin Stone (Kevin) were married on August 14,
1984. Two sons, Colt and Cale, were born of the marriage. The
marriage was dissolved by decree on July 2, 1992. The Property
Settlement Agreement incorporated into the Dissolution Decree set
forth Lorrie and Kevin's rights and obligations regarding child
support, custody and visitation. The agreement established that
Lorrie would have the primary physical custody of the two minor
children. However, in 1993, Lorrie voluntarily transferred
physical custody of the boys to Kevin for more than six months. In
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late 1993, Kevin moved the court to recognize this de facto
physical custody situation and to modify the Decree of Dissolution
to grant him primary physical custody of the children. The court
denied his motion.
Lorrie subsequently remarried and, in anticipation of
relocating to Billings, she moved the court to modify the custody
and visitation portions of the Property Settlement Agreement.
Additionally, Lorrie requested that she be awarded attorney's fees
for her legal actions to date, specifically in response to Kevin's
motion to gain primary physical custody of the children.
Prior to the hearing set to consider Lorrie's motions, the
parties presented the court with a stipulation resolving the
outstanding issues. Lorrie's counsel drafted the stipulation,
entitled "Settlement Agreement," which, inter alia, states: "This
agreement contains the full and complete agreement of the parties
and the parties hereto warrant that they have entered into no other
side agreements . . .'I The Settlement Agreement did not mention
nor reserve the issue of attorney's fees. Additionally, Lorrie's
counsel, after first requesting the hearing on the issue of
attorney's fees, later vacated the hearing date with no reservation
of the attorney's fees issue. Two and one-half months after the
Settlement Agreement was entered Lorrie filed a Motion to modify
Kevin's Child Support Obligation and renewed her Motion for Payment
of Attorney's Fees.
1. Did the District Court err in refusing to award Lorrie
attorney's fees?
Lorrie's request for attorney's fees stems from her response
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to Kevin's motion to modify the primary physical custody of the
children based on his de facto physical custody. The court denied
his motion and did not grant Lorrie attorney's fees. Lorrie did
not appeal from the denial of attorney's fees.
Lorrie argues that Section XIII of the Custody and Property
Settlement Agreement requires that the successful party receive
full costs and reasonable attorney's fees incurred in order to
enforce or defend any of the provisions of the Agreement. However,
prior to the hearing set to hear Lorrie's motion to modify the
Property Settlement Agreement, Lorrie and Kevin presented the court
with a stipulation resolving the outstanding issues. The
stipulation, entitled "Settlement Agreement," drafted by Lorrie's
counsel, states: "This agreement contains the full and complete
agreement of the parties and the parties hereto warrant that they
have entered into no other side agreements. . .I' No mention of
the issue of attorney's fees was made in the agreement. Nor was
the issue reserved when Lorrie's counsel vacated the hearing date
on the attorney's fees. The District Court concluded, in its
conclusions of law, that Lorrie waived her claim for attorney's
fees by entering into the Settlement Agreement and failing to
reserve the issue of attorney's fees.
We recently held that, "[WI e review a district court's
conclusions of law to determine whether the court's interpretation
of the law was correct." In re Marriage of Kovash (Mont. 1995),
893 P.2d 860, 863, 52 St.Rep. 280, 281 (citing In re Marriage of
Barnard (1994), 264 Mont. 103, 106, 870 P.2.d 91, 93. Additionally,
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our standard of review of an order denying or granting a motion for
attorney's fees and costs is whether the district court abused its
discretion. Marriaqe of Barnard, 870 P.2d at 95. Here, we find
that the District Court correctly interpreted the law and did not
abuse its discretion in concluding that Lorrie waived her claim for
attorney's fees
2. Did the District Court abuse its discretion in setting
the child support obligations?
In arguing that the District Court abused its discretion in
setting Lorrie and Kevin's child support obligations, Lorrie
disputes five of the District Court's findings. She argues:
1. The District Court erred in concluding that Kevin's
household size equaled three instead of two, as stipulated by the
parties.
2. The District Court incorrectly calculated Kevin's income.
3. The District Court incorrectly imputed a reasonable amount
of daycare costs.
4. The District Court incorrectly calculated the number of
days Kevin would have visitation with the children.
5. The District Court failed to include all of Kevin's assets
in the child support calculations.
Absent a clear showing of abuse of discretion a district
court's award of child support will be upheld. In re Marriage of
Hill (1994), 265 Mont. 52, 57, 874 P.2d 705, 707 (citing In re
Marriage of D.F.D. and D.G.D. (1993), 261 Mont. 186, 203, 862 P.2d
368, 378). This Court will review a district court's findings of
fact in child support modification cases to determine whether they
are clearly erroneous. Marriaqe of Kovash, 893 P.2d at 862-63.
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There is a presumption in favor of the district court's judgment
unless an appellant demonstrates there was a clear abuse of
discretion or an error in the district court's findings. In re
Marriage of Johnson (1987), 225 Mont. 404, 405, 732 P.2d 1345,
1346.
In the instant case, certain of the court's findings and
conclusions are clearly erroneous. Regarding the size of Kevin's
household, the record shows that the parties stipulated to the
household size consisting of two not three persons. This
stipulation came after Kevin admitted he incorrectly filled out his
financial affidavit that was then used in the Child Support
Guidelines Worksheet. The incorrect household size results in an
error in the amount of "self-support reserve" allotted to Kevin
which then results in a lower child support obligation.
The record also reveals that Kevin's income was incorrectly
calculated by the court. Kevin's financial affidavit reports his
income based on both an hourly ($13 per hour) and a weekly ($700
per week) wage. Calculating his income based on his reported $700
per week wage results in an annual income of $36,400 per year. The
District Court calculated Kevin's income based on an hourly wage of
$12.90 resulting in an annual income of $26,844.48. However,
Kevin's hourly wage was disputed. The record shows that in
reporting $13 per hour, Kevin was understating his actual wage
which included significant amounts of "premium time." On the other
hand, there is no dispute about the $700 per week figure and no
evidence that it was an over or under statement of his income.
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Thus in light of the evidence in the record, the court erred in
basing Kevin's annual salary on an hourly wage of $12.90 rather
than on the undisputed figure of $700 per week.
As for the three other issues presented by Lorrie, there is
substantial credible evidence in the record to support the District
Court's findings. See Marriase of Johnson, 732 P.2d at 1347.
Consequently, we conclude that the court's findings of fact for the
three remaining issues are not clearly erroneous and, finding no
abuse of discretion, we will not disturb the court's judgment for
these issues. Marriaqe of Kovash, 893 P.2d at 862-63.
We affirm the decision of the District Court as modified
herein and remand this case to the District court for a
recalculation of the amount of child support Kevin must pay based
on a household size of two persons and an annual income based on
his weekly wage of $700.
Chief Justice