Marriage of Meyer

NO. 94-337
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
IN RE THE MARRIAGE OF
MICHAEL T. MEYER,
Petitioner and Respondent,
and DEC 13 1994
DEBORAH M. (MEYER) LOPEZ,
Respondent and Appellant.
APPEAL FROM: District Court of the Tenth Judicial District,
In and for the County of Fergus,
The Honorable Peter L. Rapkoch, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Timothy J. O'Hare, Attorney at Law,
Lewistown, Montana
For Respondent:
Leonard H. McKinney, Attorney at Law,
Lewistown, Montana
Submitted on Briefs: November 10, 1994
Decided: December 13, 1994
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
Petitioner Michael T. Meyer filed a motion to modify a
dissolution decree in the District Court for the Tenth Judicial
District in Fergus County to require respondent Deborah Meyer Lopez
to pay monthly child support for the parties' two minor children.
The District Court entered an order modifying the support
obligation so that Deborah was required to pay $223 per month per
child for support. Deborah appeals. We affirm.
The issues raised on appeal are:
1. Did the District Court properly consider the statutory
grounds for child support modification pursuant to § 40-4-
208(2) (b) (i), MCA?
2. Did the District Court give Deborah proper credit for
variances provided for in the Uniform Child Support Guidelines?
FACTUAL BACKGROUND
Michael and Deborah Meyer were married in Helena on
September 30, 1972. At the time of the marriage, Deborah had one
child, Tracy, who was born in 1968. Tracy was later adopted by
Michael. During their marriage, the parties had two children,
Michael Shane and Jillean, born in 1978 and 1980, respectively. In
February 1982, Michael filed for dissolution, and a decree of
dissolution was entered in June 1982. In a supplemental decree,
Deborah was awarded custody and was required to support Tracy.
Michael was awarded custody and was responsible for the support of
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Michael Shane and Jillean. That decree was affirmed by this Court
in InreMarriageofMeyer (1983), 204 Mont. I??, 663 P.2d 328.
On February 23, 1994, Michael moved to amend the decree. His
motion requested that Deborah be required to make monthly child
support payments to support Michael Shane and Jillean. At the time
of his motion, Deborah was living and working in California and
Tracy had reached the age of majority.
Because neither party currently resides in Fergus County, the
parties stipulated to file financial affidavits, child support work
sheets, briefs, and other documents to support their respective
positions. Each party agreed to have the decision based only on
the documents filed and waived the right to a recorded hearing.
The District Court allowed the stipulation and deemed the matter
submitted. On May 18, 1994, the District Court entered an order
amending the decree of dissolution and ordered that Deborah pay
$446 per month for support.
Review of this case is made difficult by the fact that the
parties agreed to submit the issue to the District Court without a
hearing or any other form of testimony. Furthermore, we have no
record of the attorneys' meeting with the District Court during
which they discussed what kind of documentary evidence could be
considered. In short, of the few documents in the file submitted
for review, we have no way of knowing which documents the court was
free to consider by agreement of the parties, and which documents
should be excluded, based on our normal rules of evidence.
However, since it is apparent from the arguments of the parties
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that there was some form of agreement to submit this case to the
District Court in its unusual posture, and with deference to the
District Court's greater understanding of the parties' actual
agreement, we will attempt to review the issues raised on appeal.
The District Court record contains numerous documents.
Michael filed his financial affidavit, as required by the Montana
Child Support Guidelines. Included with his affidavit are copies
of his paycheck stubs. In addition, Michael filed an affidavit to
support his motion to amend the decree. The affidavit stated that
Deborah is employed, has remarried, and has sufficient income to
assist with the support of the two minor children. His main
contention was that it was not "equitable" to require him to
continue to provide the sole support and maintenance of the minor
children.
Deborah also filed a financial affidavit, as required by the
guidelines, which included her request for a variance. She claimed
she was entitled to a variance under Part L of the financial
affidavit because her cost of living is higher in California and
she will have to incur additional expense for long distance
visitation.
Based on the documents and proposed calculations submitted,
the District Court entered its order modifying the decree on
May 18, 1994. The court found that Michael was entitled to $223
per child per month for child support until the minor children are
emancipated, or their minority ends. In its findings, the court
stated that Deborah is entitled to an additional self support
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reserve because of the cost-of-living differential, and is entitled
to a variance in the amount of $450 for the long distance
visitation. Deborah appeals from this order.
ISSUE 1
Did the District Court properly consider the statutory grounds
for child support modification pursuant to § 40-4-208(2) (b)(i),
MCA?
Deborah claims that the District Court erred when it modified
the support obligation without indicating that it considered the
statutory criteria. Section 40-4-208(2) (b) (i), MCA, states that
child support may be modified only upon a showing of changed
circumstances that are so substantial and continuing that they
render the terms of the original decree unconscionable. Deborah
never raised this issue below, so this Court will not consider it
for the first time on appeal. See Beery v. Grace Drilling ( 19 9 3 ) , 260
Mont. 157, 161, 859 P.2d 429, 432. Deborah simply submitted her
work sheet, affidavit, and brief, and argued that support should be
awarded in the minimum amount allowed by the guidelines. We hold
that the District Court did not err by failing to address an issue
which was never raised by the parties.
ISSUE 2
Did the District Court give Deborah proper credit for
variances provided for in the Uniform Child Support Guidelines?
This Court will only reverse a district court's modification
of support if the court's findings are clearly erroneous in light
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of the evidence in the record. In re Marriage ofGies (1985) , 218 Mont.
433, 436, 709 P.2d 635, 637.
Deborah claims entitlement to a cost of living variance
pursuant to 46.30.1543(f), ARM, because her rent is higher than
Michael's. However, she provided no other information with which
to compare their homes, nor did she otherwise document the
respective costs of living.
Deborah also claims entitlement to a travel variance pursuant
to 46.30.1543[11, ARM, based on a letter from a travel agent
setting forth the amount of travel expenses. However, there is no
stipulation admitting the letter, nor is there any other foundation
of record for its admissibility.
Since Deborah asserted the right to a variance, she had the
burden of proving she was entitled to one. To decide in Deborah's
favor, we would have to adopt her assertions as true, despite the
fact that the record is insufficient to support her assertions. A
district court order is presumed to be correct and an appellant
must overcome that presumption. State ex rd. Elakovich v. Zbitnoff ( 19 6 3 ) ,
142 Mont. 576, 579, 386 P.2d 343, 345. Absent some evidentiary
basis, there is nothing for this Court to review to determine the
merits of Deborah's claim, and the presumption that the trial court
was correct must stand. Zbitnoff, 386 P.2d at 345.
Therefore, the District Court's order is affirmed.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
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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.
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We concur:
JustIces