No. 92-309 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

IN RE THE MARRIAGE OF 

REBECCA GRAY WACKLER, 

Petitioner and Appellant, 

and 

THOMAS PAUL WACKLER, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Ed McLean, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Paul Neal Cooley, Skelton & Cooley, 

Missoula, Montana 

For Respondent: 

Richard A. Reep, Reep, Spoon & Gordon, 

Missoula, Montana 

Filed: 

Submitted on Briefs: December 10, 1992 

Decided: April 13, 1993 
Justice William E. Hunt, Sr., delivered the opinion of the Court. 

Petitioner Rebecca Gray Wackler appeals the decision of the 

Fourth Judicial District Court, Missoula County, modifying 

visitation, capping child support at $39,500, and failing to award 

her attorney fees. 

We affirm. 

Petitioner raises three issue for this appeal. 

1. Did the District Court err in refusing to modify child 

support? 

2. Did the District Court err in modifying visitation 

without providing advance notice to petitioner? 

3. Did the District Court err in failing to award petitioner 

attorney fees and costs? 

Rebecca Gray Wackler and Thomas Paul Wackler were married on 

December 16, 1990, in Missoula. Rebecca filed a petition for 

dissolution on March 12, 1991. Rebecca was pregnant at the time of 

filing the petition. On April 4, 1991, the parties entered into a 

marital and property settlement agreement. On July 9, 1991, the 

court found that the agreement was not unconscionable and 

incorporated it into the decree of dissolution. The parties were 

given joint custody of the child, with Rebecca designated as 

principal residential custodian. Thomas was to have custody of the 

child 25 percent of the time, with visitation to be essentially 

arranged by the parties. Thomas was ordered to pay $400 per month 

in child support until January 1992 when the parties agreed to 

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exchange information regarding their income for the purpose of 

applying the Uniform Child Support Guidelines. 

Thomas works as a commissioned salesman and currently earns 

$77,000 a year. Rebecca is employed part-time as a hair stylist 

and has a yearly income of $7,000. 

The record demonstrates that the parties have had difficulty 

implementing the dissolution decree. Thomas filed a motion in 

September 1991 requesting a clarification of visitation and day 

care expenses. Following a hearing, the court issued an order on 

October 25, 1991, establishing a visitation schedule and day care 

payments. 

The parties failed to agree on a child support amount, based 

on 1991 incomes, by January 15, 1992, and on January 27, 1992, 

Rebecca filed a motion regarding child support. A hearing was held 

on February 19, 1992, and on April 20, 1992, the District Court 

issued its order finding that $400 a month in child support was 

sufficient and ordering Thomas to provide for post-high school 

education. In addition, the court clarified Thomas's visitation 

rights. Rebecca appeals the decision. 

I. 

Did the District Court err in refusing to modify child 

support? 

When this Court reviews child support awards, a presumption 

exists in favor of the district court's determination, and this 

Court will reverse the district court only if it has abused its 

3 
discretion. In re Marriage of Sacry (Mont. 1992), 833 P.2d 1035, 

1038, 49 St. Rep. 452, 453. Whenever the court issues or modifies 

an order relating to child support, the district court is required 

to determine the child support obligation on the basis of the 

factors set out in 5 40-4-204(l) and (2), MCA, and the Uniform 

Child Support Guidelines adopted by the Department of Social and 

Rehabilitation Services. Section 40-4-204(3), MCA. 

In its order, the District Court found that Thomas's yearly 

gross income was approximately $77,000. He is currently paying 

$400 a month in child support, $260 a month in day care, and $25 a 

month in insurance costs. Rebecca requested that the court 

increase the monthly child support to $557. The court found that 

$400 a month in child support was sufficient. In addition, the 

court ordered Thomas to provide for the child's post-high school 

education. The court based its decision on the belief that child 

support should not be calculated on income in excess of $39,500 and 

that the reasons for capping support at this level were the 

specific statements contained within the Uniform Child Support 

Guidelines. 

The District Court's order was issued prior to our decision in 

Sacry where we concluded that the mandatory provisions of the 

guidelines do not apply to incomes greater than $39,500. Sacry, 

833 P.2d at 1038. The $39,500 limitation does not place a cap on 

the amount of child support to be awarded based on incomes greater 

than $39,500. For incomes exceeding $39,500, the first $39,500 

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should be "first applied in the appropriate column and line which 

shows the number and age of the child to arrive at a minimum 

support amount.If Sacrv, 833 P.2d at 1038 (quoting 46.30.1543(2), 

ARM). Any parental income that exceeds the $39,500 may be used to 

supplement a minimum support amount. The amount of the supplement 

is to be determined on a case-by-case basis utilizing the factors 

set out in § 40-4-204 (1) and (2) , MCA. The district court is given 

broad discretion in awarding supplemental child support based on 

parental incomes that exceed $39,500. Sacrv, 833 P.2d at 1038. 

Thus, the guidelines do not establish a cap on child support on 

incomes exceeding $39,500, but instead provide the district court 

with greater flexibility in setting child support payments when 

parental income exceeds $39,500. 

Even though the District Court erred in ruling that there was 

a cap on the amount of child support payments because Thomas earned 

more than $39,500, the court's decision does not amount to 

reversible error. After applying the first $39,500 of Thomas's 

income, he is currently paying $400 a month in child support which 

is within the limits of the child support guidelines. Thomas is 

also responsible for $260 in monthly day care costs, as well as $25 

per month in health insurance. In addition, Thomas is required to 

make arrangements to pay for any post-high school education that 

the child may need. We hold that the District Court did not err in 

refusing to modify child support. 
11. 

Did the District Court err in modifying visitation without 

providing advance notice to petitioner? 

During the February 19, 1992, hearing, the District Court 

granted Thomas's oral motion to modify the visitation schedule over 

Rebecca's objection. The court modified visitation by giving 

Thomas visitation on Thursday evenings instead of Monday evenings, 

and clarified summer visitation, as well as allowing additional 

visits upon request when Thomas's relatives visit from out of town. 

Rebecca contends that 5 40-4-208, MCA, requires that she be given 

notice prior to modification of visitation rights. 

Section 40-4-208(1), MCA, requires notice be given for a 

motion to modify a decree relating to child support and 

maintenance. Section 40-4-217(3), MCA, grants the district court 

authority to modify an order granting or denying visitation 

"whenever modification would serve the best interest of the child 

. . . ." In this instance, Rebecca was not prejudiced by the lack 

of notice because the District Court only clarified visitation 

rights as a result of some apparent confusion relating to the 

previous visitation schedule. Rebecca's counsel was able to 

discuss these matters and properly raise Rebecca's concerns as to 

Thomas's request to extend visitation rights, which was denied. We 

hold that the District Court did not err in its clarification of 

Thomas's visitation rights. 
111. 

Did the District Court err in failing to award petitioner 

attorney fees and costs? 

The marital agreement entered into by the parties provided an 

award of attorney fees to the prevailing party should an action be 

initiated to enforce or modify the agreement. During the hearing, 

both parties requested attorney fees. The District Court concluded 

that neither side substantially prevailed in their requests and 

denied attorney fees pursuant to 5 40-4-110, MCA. 

The District Court has discretion to grant attorney fees after 

considering the financial resources of the parties. Section 

40-4-110, MCA. The award of attorney fees is permissive not 

mandatory. Section 40-4-110, MCA. We will not overturn the 

court's decision denying attorney fees absent an abuse of 

discretion. In re Marriage of Manus (1987), 225 Mont. 457, 733 

P.2d 1275. The District Court stated it had considered the 

financial resources of the parties and that neither side 

substantially prevailed in the case. We hold that the District 

Court did not err in failing to award attorney fees. 

We affirm. 
We concur: 

Chief Justic 

Justices 
Justice Fred J. Weber dissents as follows: 

I dissent from the conclusion on Issue I in which the District 

Court refused to modify the child support. I agree with the legal 

standard to be applied and with the standard that this Court will 

reverse the District Court only if it has abused its discretion. 

The majority referred to and pointed out that the $39,500 

limitation does not place a cap on the amount of child support, 

because the amount above that figure may be used to supplement a 

minimum support amount, and thereby provides greater flexibility. 

The majority further concluded that even though the District Court 

erred in ruling there was a cap on child support payments above 

$39,500, the court's decision did not constitute reversible error. 

I do not find any factual basis for that conclusion. 

In order that there may be no confusion, I quote from the 

District Court's order on this aspect: 

The Court noted that child support should not be 

calculated on income in excess of the $39,500.00 cap set 

forth in the Uniform Child Support Guidelines. The 

Court's reasons for capping support at this level are the 

specific statements contained within the Uniform Child 

Support Guidelines. The opinion of the Court that child 

support at $400.00 per month for this child is sufficient 

support and the Court has imposed a duty upon the 

Respondent to provide for post-high school education. 

As is apparent, the District Court incorrectly concluded as a 

matter of law that child support should not be calculated on income 

in excess of $39,500. As a result, the opinion in the paragraph 

that the child support of $400 per month is sufficient is certainly 

not conclusive on this Court. 
I also quote from the controlling Guideline which is set forth 

When incomes exceed this amount the first $39,500.00 

should first be applied in the appropriate column and 

line which shows the number and age of the child to 

arrive at a minimum support amount. The minimum su~~ort 

amount should be ~~~Rlemented out of the remaininq 

parental income. The amount of the suuulement must be 

determined on a case-bv-case basis. (Emphasis supplied.) 

In re the Marriage of Sacry (1992), 253 Mont. 378, 383, 833 P.2d 

1034, 1038, (quoting 46.30.1543 (2), ARM). (Note that 

46.30.1543(2), ARM, as quoted was in effect from July 13, 1990 to 

July 31, 1992, and has since been superceded). As pointed out in 

Sacrv, the court is given broad discretion. However, in the 

exercise of that discretion, the regulation requires that the court 

start with the underlying premise that "the minimum support amount 

should be supplemented out of the remaining parental income.18 

46.30.1543 (2), ARM (1990). As a result of the District Court's 

misconstruction, it incorrectly concluded that it did not have the 

power to so supplement. At that point, as a matter of law, I 

conclude that the District Court was incorrect in applying the 

foregoing limitation. 

I would reverse the District Court on this issue and remand in 

order that the court could properly redetermine the amount of child 

support, specifically taking into consideration the income above 

Justice Karla M. Gray joins in t 
April 13, 1993 

CERTIFICATE OF SERVICE 

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

following named: 

Paul Neal Cooley 

Skelton & Cuoley 

101 E. Main 

Missoula, MT 59802 

Richard Reep 

Reep, Spoon & Gordon 

P.O. Box 9019 

Missoula, MT 59807 

ED SMITH 

CLERK OF THE SUPREh4E COURT 

STATE OF MONTANA