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No. 99-536 IN THE SUPREME COURT OF THE STATE OF MONTANA
2000 MT 250N
IN RE THE MARRIAGE OF:

LOIS LAKE, n/k/a McELRAVY, Petitioner and Appellant,
and F. ALAN LAKE, Respondent and Respondent. APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable Kenneth R. Neill, Judge presiding.
COUNSEL OF RECORD: For Appellant: K. Dale Schwanke, Jardine, Stephenson, Blewett & Weaver, P.C., Great Falls, Montana For Respondent: F. Alan Lake, Pro Se, Belt, Montana

Submitted on Briefs: May 4, 2000 Decided: September 14, 2000
Filed:

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__________________________________________ Clerk
Justice Jim Regnier delivered the opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating Rules, the following decision shall not be cited as precedent but shall be filed as a public document with the Clerk of the Supreme Court and shall be reported by case title, Supreme Court cause number, and result to the State Reporter Publishing Company and to West Group in the quarterly table of noncitable cases issued by this Court. ¶2 Lois McElravy appeals from a postdissolution order entered by the Eighth Judicial District Court, Cascade County. We affirm the order of the District Court. ¶3 Lois raises three issues on appeal: ¶4 1. Did the District Court err in concluding that certain default remedies under the parties' stipulation could not be invoked? ¶5 2. Did the District Court err in not awarding Lois increased child support retroactive to January 1996? ¶6 3. Did the District Court err in not awarding Lois attorney fees and costs?
BACKGROUND ¶7 The marriage of Petitioner, Lois Lake n/k/a McElravy (Lois) and Respondent, F. Alan Lake (Alan) was dissolved on April 12, 1989. The dissolution decree incorporated a child support and property settlement agreement which was entered into by both parties. Pursuant to the agreement, the court awarded Lois custody of their two children, and ordered Alan to pay $203 per month, per child in child support, granted Alan reasonable visitation rights, and allowed Alan to claim his daughter as a tax exemption if he kept his child support payments current. ¶8 Alan agreed to maintain health insurance for the children, and pay all reasonable

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STANDARD OF REVIEW

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¶17 In cases involving modification of child support, we generally review a district court's findings of fact to determine whether they are clearly erroneous. In re Marriage of Pearson , 1998 MT 236, ¶ 29, 291 Mont. 101, ¶ 29, 965 P.2d 268, ¶ 29; In re Marriage of Widhalm (1996), 279 Mont. 97, 100, 926 P.2d 748, 750. We review the district court's conclusions of law to determine whether the court's determination of law was correct. Pearson, ¶ 29. A district court's overall decision on modification of child support awards is reviewed for abuse of discretion, keeping in mind the best interests of the child or children. Pearson , ¶ 29. We review a district court's award of attorney fees for abuse of discretion. Pearson , ¶ 29; In re Marriage of Schnell (1995), 273 Mont. 466, 473, 905 P.2d 144, 148. In evaluating abuse of discretion, we look to whether the court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice. Pearson , ¶ 30; In re Marriage of Wessel (1986), 220 Mont. 326, 333, 715 P.2d 45, 50. ISSUE ONE ¶18 Did the District Court err in finding that certain default remedies under the parties' stipulation could not be invoked? ¶19 Lois argues that the District Court should not have relieved Alan of the obligation to pay pre and poststipulation healthcare expenses when he defaulted on paying his child support and healthcare stipend. Alan contends that the District Court ruling was fair to both parties and should be affirmed. ¶20 The District Court concluded that the default remedies requiring Alan to pay pre and poststipulation medical expenses, which Lois assumed under the stipulation, could not be invoked for several reasons. The District Court determined that the default on payment of $882 in child support and stipend payments over two years was not a material breach, the default was excusable, and this particular provision provided a harsh remedy tantamount to strict forfeiture. The court concluded that Alan's default was not sufficient to invoke such a remedy without an opportunity to cure. The District Court also found evidence that Alan was curing the default through regular payments to Lois. ¶21 Terms relating to child support in dissolution agreements are not binding on the district court. Section 40-4-201(2), MCA. See also, In re Marriage of Converse (1992), 252 Mont. 67, 70, 826 P.2d 937, 939; In re Marriage of Mager (1990), 241 Mont. 78, 82, 785 P.2d 198, 200. Although this is a modification of an agreement, and not a dissolution agreement, the same principles apply. The stipulation was filed with the District Court,

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. Lois's deprivation is relatively small. Alan had a total delinquency of $882 in two years, and had paid over $5700 in child support. Further, Alan is curing the default through the monthly garnishment of his wages, which cover both child support and payment of the arrearages. ¶24 Because the District Court found that the default was immaterial, the District Court did not err in concluding that certain default remedies under the stipulation could not be invoked. The District Court correctly determined that Alan's default was not material, and thus we do not need to reach any further question about Alan's default. Furthermore, if a party incurs forfeiture or loss in the nature of forfeiture, the party may be relieved from making full compensation, except in cases of grossly negligent, willful, or fraudulent breach of duty. Section 28-1-104, MCA. See also, Blakely v. Kelstrup (1994), 267 Mont. 274, 883 P.2d 814. Alan is making monthly payments through garnishment of his wages that cover his full child support payments, as well as payments to cover the arrears owed to Lois. Thus, we find the District Court was correct in its interpretation of the default provisions. ¶25 Lois also argues that Alan was required to plead any defenses to the breach of contract as affirmative defenses in his original pleadings under Rule 8(c), M.R.Civ.P. The District Court had the authority to modify the agreement as necessary in the best interests of the

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ISSUE TWO ¶26 Did the District Court err in not awarding Lois child support retroactive to January 1996? ¶27 Lois argues that the District Court erred by not awarding Lois child support retroactive to January 1996 because the terms of the stipulation require payment of child support retroactive to the date provided for in the stipulation. Alan argues that the District Court ruled correctly in awarding a modification of child support retroactive to September 1, 1998. ¶28 The District Court modified child support to require Alan to make a payment of $280 per month for the support of the parties' minor children retroactive to September 1, 1998. In addition, the Court ordered Alan to pay $75 per month pursuant to the stipulation for the healthcare expenses. Lois argues the trial court did not have discretion to modify the agreement as to child support, and asks that child support be required retroactive to January 1996 as per the parties' written agreement. ¶29 As we have repeatedly stated, written agreements in which parties to dissolution stipulate to terms of dissolution, while encouraged by the State, are not binding on the district court as to child support. Section 40-4-201(2), MCA. See Converse , 252 Mont. at 70, 826 P.2d at 939; see also Mager , 241 Mont. at 82, 785 P.2d at 200. Thus, the District Court had the discretion to determine the appropriate level of child support to be granted to Lois. The District Court's modification of child support was based on the calculations submitted by Lois in August 1998. This information was adopted by the court when it ordered an increase in Alan's child support obligations to $280 per month retroactive to September 1, 1998. Thus, we hold that the District Court did not abuse its discretion when it determined the retroactivity date for child support modification.
ISSUE THREE ¶30 Did the District Court err in not awarding Lois attorney fees and costs? ¶31 Lois contends that she should have been awarded her attorney fees and costs as a prevailing party. Alan argues that the District Court's ruling was fair to both parties.

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¶32 After considering the financial resources of both parties, the district court may order a party to pay reasonable attorney fees for maintaining and defending specified dissolution, custody, and child support proceedings. Section 40-4-110, MCA. A trial court may be bound by the terms of a dissolution contract granting attorney fees for a prevailing party. In re Marriage of Caras (1994), 263 Mont. 377, 385, 868 P.2d 615, 620. But, in this particular case, however, neither party clearly prevailed. The District Court modified the award of child support, granting more than Alan proposed to pay, yet less than Lois requested. The District Court made a specific ruling that neither party shall be considered the prevailing party for purposes of awarding attorney fees. We conclude that the District Court exercised its discretion in that determination, when neither party was totally successful. See, e.g., In re Marriage of Hahn (1994), 263 Mont. 315, 323, 868 P.2d 599, 604; In re Marriage of Hebert (1992), 255 Mont 69, 840 P.2d 584. ¶33 Lois also requests an award of attorney fees and costs incurred on appeal. Lois is not a prevailing party in this matter, thus her request for attorney fees is denied. ¶34 We affirm the Findings of Fact, Conclusions of Law and Order of the District Court.
/S/ JIM REGNIER
We Concur: /S/ WILLIAM E. HUNT, SR.
/S/ JAMES C. NELSON
/S/ TERRY N. TRIEWEILER
/S/ W. WILLIAM LEAPHART

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