No. 93-372 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

IN RE THE MARRIAGE OF 

DARCIA L. RAGER, 

Petitioner and Respondent, 

and 

CHRISTOPHER A. RAGER, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Thomas A. Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Michael V. Sinclair: Coil & Sinclair, Bozeman, 

Montana 

For Respondent: 

Jerrold L. Nye; Nye & Meyer, Billings, Montana 

Submitted on Briefs: October 21, 1993 

Decided: February 11, 1994 

Filed: 

CLERK OF SUPREME COURI 

... . 
Justice John Conway Harrison delivered the Opinion of the Court. 

Appellant Christopher A. Rager (Chris) appeals the Eighteenth 

Judicial District Court, Gallatin County, order compelling him to 

pay $252 per month in child support and $100 per month for medical, 

dental and optical expenses. We affirm. 

Chris presents the following issues: 

1. Did the District Court abuse its discretion in computing 

Chrisf child support obligation? 

2. Did the District Court err by declaring his daughter's 

surname flWorman?n 

3. Did the District Court abuse its discretion by ordering 

Chris to pay Darcia L. Ragerfs attorney's fees and costs? 

On April 18, 1991, Darcia Rager (Darcia) filed to dissolve her 

marriage to Chris, alleging that one child was born of the 

marriage, Karissa Lynn Jacque Worman (Karissa). Chris, in his 

response, did not dispute the child's last name, but he wanted the 

child's last name changed to Rager. Chris is Karissafs natural 

father. 

On October 30, 1992, the attorneys and District Court signed 

a pretrial order, which resolved all issues except: 1) the amount 

Chris would pay for child support; 2) who would pay for Karissafs 

medical, optical and dental expenses; and 3) the payment of 

attorney's fees by either party. The pretrial order stated that 

the child's name was Karissa L. J. Rager, instead of Karissa L. J. 

Woman. 
The District Court ordered that discovery be completed by 

January 15, 1993, and set the trial date for February 19, 1993. 

Chris moved for a continuance and the District Court denied his 

motion on February 8, 2993. 

Chris failed to appear at the trial on February 19, 1993. He 

also failed to provide Darcia with discovery before that date. 

Darcia appeared at the hearing and submitted evidence of her 

income. She testified that her child's name was Karissa L. J. 

Worman. Chris' attorney argued that the pretrial order established 

that the child's last name was Rager. The court acknowledged the 

pretrial order, but determined that the child's legal name was 

Woman--the name which appeared on the child's birth certificate. 

Because Chris failed to appear and did not comply with 

discovery, the court scheduled a second hearing for April 5, 1993. 

The court indicated that Chris would pay Darcia's attorney's fees 

and attorney travel expenses for the April 5th hearing. 

Chris finally appeared at the April 5, 1993, hearing and gave 

testimony concerning his income. Chris' girlfriend and bookkeeper, 

Judy Adams (Judy), also testified about his income. 

After hearing the evidence, the District Court determined that 

Chris had an earning capacity of $20,000 a year, while Darcia's 

earning capacity was $15,000 a year. The court completed a child 

support guideline worksheet and ordered Chris to pay $252 per month 

for child support and $100 per month for Karissals medical, dental 

and optical expenses. The court also ordered Chris to pay Darcia's 

attorney's fees and travel costs of $1,085 for the April 5th 
hearing. Chris appeals. 

Initially, we note that a presumption exists in favor of the 

district court's child support computation and we will uphold that 

computation unless the district court abuses its discretion. In re 

Marriage of Kukes (l993), 258 Mont. 324, 328, 852 P.2d 655, 657. 

Further, the court's factual findings will be affirmed if they are 

supported by substantial evidence. In re Marriage of Fesolowitz 

(1993), 258 Mont. 380, 387, 852 P.2d 658, 662. 

I 

Did the District Court abuse its discretion in computing 

Chris1 child support obligation? 

Chris maintains that the District Court inappropriately 

included money which Judy had loaned to him in his income 

calculation. He contends that Judy loaned his business more than 

$20,000 and that amount explains the $20,000 difference between his 

cash deposits of $78,000 and his business expenses of $58,000. He 

argues that 3 46.30.1508 (2), A.R.M., prohibited the court from 

considering the financial resources which Judy contributed to his 

business when it determined his earning capacity. Chris contends 

that he sustained an $8,000 loss in 1992. Thus, he concludes that 

he should not pay any child support to Darcia until his income 

stabilizes. The record, however, negates his argument. 

At trial, Chris refused to testify about his income during the 

first three months of 1993. Further, he would not testify about 

his business income and expenses for 1992. Even though Chris 

testified that he made $75 a day in his outfitting business, he 
never indicated how many days he spent working in the business and, 

thus, the court could not accurately determine his income from 

outfitting. 

Judy handled the bookkeeping for Chris' drywall business. 

Since Chris claimed to have no personal knowledge of the financial 

records, Judy was the only one who could testify as to his income 

and expenses. Judy testified about the finances and she also 

testified that she loaned money to Chris. 

The District Court found that Chris could not provide the 

court with a reasonable calculation of his income or earning 

potential. In short, the District Court could not accurately 

determine Chris' income from his or Judy's testimony. For that 

reason the court was forced to rely on the exhibits (Chris' 

financial records) to determine his income. The District Court 

found that Chris1 business deposits were greater than $78,000, 

while his business expenses were $58,000. The court then found 

that ll[f]rom his meager records it would seem that [Chris] has 

$20,000 to live on.'& 

After a careful review of the record, we conclude that the 

District Court's findings are supported by substantial evidence. 

The court did not abuse its discretion in computing Chris' child 

support obligation. We hold that the District Court properly 

computed his child support obligation. 

I I 

Did the District Court err by declaring his daughter's surname 

"Worman?" 
The pretrial order in this case states that "[tlhe child's 

surname will remain Rager.Ii This order was signed by the District 

Court Judge and both partiesv attorneys. However, it was later 

discovered t h a t t h e child's legal surname was never Rager, but was, 

in fact, Woman. Based on that fact, the District Court found, 

contrary to the pretrial order, that the minor child's surname was 

Woman. 

We recognize that the pretrial order is used to !'prevent 

surprise, [narrow the] issues and permit counsel to prepare for 

trial on the basis of the pretrial order." Bache v. Gilden (1992), 

252 Mont. 178, 182, 827 P.2d 817, 819. In this case, the child's 

name on the birth certificate is Karissa Lynn Jacque Woman. This 

name is the child's legal name, and remains so for all purposes 

unless it is changed by adoption, through a statutory petition for 

a name change, or by other legal means. See, 5 40-8-101 et seq., 

MCA; 3 27-31-101 et seq., MCA; In the Matter of the Change of Name 

of Iverson (l99O), 241 Mont. 140, 786 P.2d 1; In re ~arriage of 

Firman (l98O), 187 Mont. 465, 610 P.2d 178. Chris never petitioned 

for a name change nor requested such a change through other legal 

means. Therefore, because the pretrial order contained a legal and 

factual error, the District Court was well within its discretion to 

modify the pretrial order to that extent. 

This holding should not be read as allowing parties to renege 

on the stipulations and agreements made in a pretrial order. 

However, when there is a mistake of fact or law contained in the 

pretrial order, the ~istrict Court must be allowed the discretion 
to correct that error. 

I11 

Did the District Court abuse its discretion by ordering Chris 

to pay Darcia's attorney's fees and costs? 

Chris argues that the District Court erred by ordering him to 

pay Darcia's attorney's fees and costs. While the District Court's 

findings and conclusions do not indicate the basis for awarding 

attorney's fees, we conclude that two statutory provisions support 

awarding attorney's fees and costs in this case. 

First, 5 40-4-110, MCA, requires the district court to 

consider the "financial resources of both parties" before it orders 

a party to pay the reasonable costs and attorney's fees of the 

other party. In re Marriage of Syljuberget (1988), 234 Mont. 178, 

187, 763 P.2d 323, 328. In Syliuberset, we upheld an award of 

attorney's fees when the husband's failure to cooperate caused the 

wife to incur additional attorney's fees. 763 P.2d at 328. We 

concluded that the district court correctly considered the 

financial resources of both parties. Syliuberset, 763 P.2d at 328. 

Similarly, here, Chris failed to appear at the first hearing 

and caused Darcia to incur additional and unnecessary attorney's 

fees. Although the District Court did not specifically find that 

Chris could afford to pay Darcia's attorney's fees and costs, the 

court did consider the financial resources of both Darcia and 

Chris. In determining child support, the court found that Christ 

earning capacity was $20,000, while Darcia's was $15,000. Thus, 

the court considered the financial resources of the parties before 
it ordered Chris to pay Darcials attorney's fees and costs. 

Second, 5 37-61-421, MCA, permits the district court to award 

attorney's fees, costs and expenses against "[aln attorney or party 

. . . who . . . multiplies the proceedings in any case unreasonably 

and vexatiously . . . .I8 See Tigart v. Thompson (1990), 244 Mont. 

156, 159-60, 796 P.2d 582, 583-85. In the present case, on October 

30, 1992, the court scheduled the trial date for February 19, 1993. 

On February 4, 1993, Chris moved the court to continue the trial 

date. The court denied his motion on February 8, 1993, stating 

that "[tlhis matter has been set [for trial] since October 30, 

1992, allowing [Chris] adequate time to adjust his schedule 

ac~ordingly.~ 

Thus, Chris knew for four and one-half months that the hearing 

was scheduled for February 19, 1993, and that he was required to 

attend the hearing on that date. Despite the District Court's 

order denying his motion to continue, Chris failed to appear at the 

February 19th hearing. 

He also refused to provide the court and Darcia with his 

discovery responses (financial evidence). As a result of Chris' 

failure to appear and his failure to provide financial evidence, 

the court could not render a permanent child support computation. 

The District Court had to schedule a second hearing for April 5th. 

Chris1 conduct not only showed disregard for the court's 

proceedings, but his conduct was also unreasonable and vexatious. 

Further, his conduct multiplied the litigation by necessitating a 

second hearing. 
We hold that the District Court properly considered the 

parties' financial resources as required by 5 40-4-110, MCA. The 

court also could have relied on 5 37-61-421, MCA, to support its 

award of attorney's fees and costs. We uphold the District Court's 

determination that Chris pay Darcia's attorney's fees and costs. 

Af f irmed. 

We concur: 
February 11, 1994 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Michael V. Sinclair, Esq. 

Coil & Sinclair 

125 West Mendenhall 

Bozernan, MT 59715 

Jerrold L. Nye 

Nye & Meyer 

3317 Thud Ave. No. 

Billings, MT 59101 

ED SMITH 

CLERK OF THE SUPREME COURT 

STAQ OF MONTANA 

BY: 

Depu 

y