NO. 94-046

IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

IN RE THE MARRIAGE OF

TERRY L. HILL,

Joint-Petitioner and Appellant,

and

RONALD S. HILL,

Joint-Petitioner and Respondent.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

The Honorable Russell K. Fillner, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Don M. Hayes, Herndon, Hartman, Sweeney

& Halverson, Billings, Montana

For Respondent:

James Robert Graves, Oliver, Graves

& Toennis, Billings, Montana

Submitted on Briefs: April 7, 1994

Decided: May 3, 1994
Justice Terry N. Trieweiler delivered the opinion of the Court.

Appellant Terry L. Hill petitioned the District Court for the

Thirteenth Judicial District in Yellowstone County for a

modification of the child custody and support provisions of the

parties' May 22, 1990, settlement agreement and decree of

dissolution. Prior to the hearing, the parties stipulated to

future child custody arrangements and support obligations. The

District Court approved the oral stipulation of the parties with

regard to future child support, but refused to award Terry child

support retroactive to the date of the petition for modification.

Terry appeals. We affirm in part, reverse in part, and remand for

further proceedings.

The following issues are raised on appeal:

1 . Did the District Court abuse its discretion when it

ordered child support in accordance with the oral stipulation

entered into by the parties on August 30, 1993?

2 . Did the District Court abuse its discretion when it

refused to award child support retroactive to the date the petition

for modification was filed?

3 . Should the District Court have awarded attorney fees to

Terry pursuant to the parties' settlement agreement and dissolution

decree?

The parties' marriage was dissolved on May 22, 1990. The

final decree incorporated a child custody and property settlement

agreement entered into by the parties on April 16, 1990. At the

2
time of dissolution, Terry and Ronald had two minor children,

Brendon, age 10, and Coulter, age 8.

The original decree provided for joint custody, made Terry

primary residential custodian, and required Ronald to pay child

support in the amount of $200 per child per month. After the

dissolution, the residential status of the children changed on

several occasions. Thereafter, the parties stipulated to a

modification of the custody and support provisions of the original

agreement. The stipulation provided that Ronald would be the

primary physical custodian of both children and would receive $33

per child per month for support from Terry. The stipulation also

provided that Ronald would pay to Terry the sum of $1800 as "full

and final payment of all child support owed to her through October

of 1992." That stipulation was adopted by order of the court dated

November 12, 1992.

Circumstances changed again, and both minor children returned

to live with Terry. On January 29, 1993, Terry filed a petition

for modification of custody in which she requested that Ronald be

ordered to pay child support in the amount set forth in the

original decree or in the amount necessary to comply with the child

support guidelines. Although the parties attempted to reach an

agreement subsequent to the date on which the petition was filed,

they were unable to resolve their differences regarding child

support obligations. Therefore, the matter was set for hearing on

August 30, 1993.

3
Brendon and Coulter continued to reside with Terry until

June 1993, and then began to split their time between the two

residences. They continued this arrangement throughout the summer

months. No child support payments were made by either party

subsequent to the date of the petition.

The parties eventually agreed on a custody arrangement for

their sons which left two issues to be resolved at the hearing:

(1) future support obligations, and (2) whether Terry was entitled

to support retroactive to the date the petition was filed. Prior

to the hearing, each party submitted child support calculation

worksheets utilizing real and imputed income figures for the

court's determination of the parties' appropriate child support

obligations.

On the date of the scheduled hearing, following a conference

with the District Court Judge, the parties agreed to base child

support calculations on their average incomes for the previous

three years. Utilizing calculations that Terry's attorney had

prepared based on three-year income averages, the parties, in open

court, accepted those calculations and stipulated to the amount of

child support which resulted from those calculations. Ronald's

counsel was instructed to reduce the stipulation to writing

following the hearing. The court then heard testimony on the issue

of retroactive support.

Subsequent to the hearing, Terry refused to sign the

stipulation prepared by Ronald's counsel, based on her contention

4
that the calculations originally prepared by her attorney were

incorrect. On September 23, 1993, Terry submitted amended

calculations which she requested the court to use in its

determination of child support obligations. She alleged that the

initial support calculations were neither in accordance with the

child support guidelines nor the stipulation of the parties because

an erroneous three-year income average for Ronald was used.

The District Court issued its findings of fact and conclusions

of law on November 10, 1993, and issued an amended order on

November 15, 1993. The court rejected the recalculations of child

support that had been requested by Terry, and adopted the figures

agreed upon prior to the hearing. In pertinent part, the court

stated the following in its amended order:

On August 30th, 1993, the above-named parties, with

counsel, appeared before this court, whereupon, the

parties entered into a stipulation for future child

support. Counsel for Ronald S. Hill was to reduce the

stipulation to writing, which he did, and forwarded the

proposed stipulation and order to counsel for Terry L.

Hill on September 1, 1993. After some delay, counsel for

Terry advised that she did not agree with the

stipulation. . . . It appeared that there was a

disagreement with the stipulation and order as prepared

by counsel for Ronald S. Hill. Accordingly, the court

obtained a transcript of the stipulation by the parties

and notes that the stipulation as prepared by counsel for

Ronald S. Hill conforms to the stipulation made on the

record. The court also notes that each party was asked

by the court if the stipulation was agreeable with them;

each answered in the affirmative. The court then advised

the parties that, "it is a done deal as of now."

Accordingly, said stipulation is incorporated in this

order as follows:

. . . .

5
4 . When Ronald S. Hill (herein Ronald) has residential

custody of one child, and Terry L. [Hill] Whitten (herein

Terry) has residential custody of one child, Ronald shall

pay Terry the sum of $100 per month in child support.

5 . When Terry has residential custody of both children,

Ronald shall pay Terry the sum of $400 per month in child

support.

6 . When Ronald has residential custody of both

children, Terry shall pay Ronald the sum of $146 per

month is child support.

Further, the court denied Terry's request for child support

retroactive to the date notice was given of the motion to modify.

In its order, the court took into consideration the allegations

raised by Ronald that even though he had paid $1800 previously by

stipulation, he had not actually owed that amount of past child

support. However, during the trial when evidence was adduced

concerning that earlier stipulation, the court had stated that any

dispute about the previous amount of past due child support had

been resolved by stipulation, was resjudicata, and would not be

considered by the court.

Terry filed combined motions requesting the court to amend its

findings and to grant a new trial. The bases for these motions

were that the court's determination of child support was erroneous

and was not in accordance with the child support guidelines, and

the court's denial of retroactive child support was based upon

evidence which it had specifically rejected during the hearing. B y

order dated December 16, 1993, Terry's motions were denied. From

6
the court's findings, conclusions and order, and the denial of her

post-trial motions, Terry appeals.

ISSUE 1

Did the District Court abuse its discretion when it ordered

child support in accordance with the oral stipulation entered into

by the parties on August 30, 1993?

The standard of review for modification of a child support

award is whether the district court abused its discretion. In re

Mam’age0fD.F.D.andD.G.D. (1993), 261 Mont. 186, 203, 862 P.2d 368,

378; ZnreMam’ageofpUrkett (1986), 222 Mont. 225, 229, 721 P.2d 349,

351. Whenever a court modifies an order concerning child support,

the court must apply the uniform child support guidelines adopted

by the Department of Social and Rehabilitation Services. Section

40-4-204(3)(a), MCA (1991).

In this instance, during a prehearing conference with the

presiding judge, the parties stipulated to respective child support

obligations which were calculated in accordance with the child

support guidelines using an agreed upon three-year income average.

However, when this stipulation was reduced to writing, Terry

refused to sign the agreement, alleging that the amounts stipulated

to were derived from an erroneous income average. The District

Court rejected Terry's request to amend the calculations and

ordered child support in accordance with the oral stipulation.

7
Terry contends that the stipulation was based on an incorrect

three-year income average, and therefore, the court-ordered support

amounts do not comport with the guidelines. In addition to the

statutory mandate which requires a court to apply the guidelines,

she notes that Rule 46.30.1507(5), ARM, does not allow a court to

base a determination of child support on an oral stipulation which

varies from the guidelines.

However, we conclude that Terry I s reliance on Rule

46.30.1507(5), ARM, is misplaced. The rule requires that if the

parties stipulate or agree to vary from the guidelines, the

stipulation, among other requirements, must be in writing and

signed by both parties before a court can accept the stipulation.

Here, the parties' stipulation was not an agreement to vary from

the guidelines. Rather, the parties stipulated to use three-year

income averages which were computed by Terry to arrive at the

amount of child support due under the guidelines. Terry makes no

argument that if we assume those figures to be correct, the

guidelines have not been correctly applied. We conclude that the

stipulation involved in this case is not the type of stipulation

encompassed by the administrative rule upon which Terry relies.

Therefore, Rule 46.30.1507(5), ARM, is inapplicable in this

instance.

The issue on review is whether the court properly determined

child support obligations on the basis of the factors set out in

8
§ 40-4-204, MCA (1991), and in an amount consistent with the

uniform child support guidelines. In re Marriage of Wader (1993) , 258

Mont. 12, 850 P.2d 963. Here, the parties stipulated to facts

which were then relied on to establish the appropriate amounts of

child support according to the guidelines. Once the parties

entered into this stipulation, the court refused to allow Terry to

unilaterally change facts upon which the stipulation was based.

This Court has previously held that a court can rely on the

terms of a stipulation provided the stipulation is not contrary to

law, court rule, or public policy. In re Marriage of Sullivan ( 19 9 3 ) , 2 5 8

Mont. 531, 539, 853 P.2d 1194, 1199; School Dzlstrict No. 4 v. Colburg

(1976), 169 Mont. 368, 372, 547 P.2d 84, 86-87. Although we made

clear in Jensenv.Jensen (1981), 192 Mont. 547, 629 P.2d 765, that a

court is not bound by an agreement concerning child support where

the welfare of the children is concerned, there is no evidence in

this situation that the parties' stipulation regarding child

support is contrary to law, court rule, or public policy, or that

enforcement of the stipulation would endanger the children's

welfare. The stipulation merely served the purpose of eliminating

certain proof that would otherwise have been necessary in order to

calculate each parent's support obligations.

Therefore, we conclude that the District Court did not err by

accepting the parties' factual stipulation. Nor did it err when it

held Terry to the stipulation by rejecting her request to

9
unilaterally alter this figure once an agreement in good faith had

been reached and the hearing had proceeded in reliance on that

agreement.

On this basis, we hold that the court did not abuse its

discretion when it ordered child support in amounts consistent with

the stipulation made by the parties on August 30, 1993.

ISSUE 2

Did the District Court abuse its discretion when it refused

to award child support retroactive to the date the petition for

modification was filed?

Terry contends that she had custody of one or both children

from January 1993 until the time her petition for modification was

granted. Although 5 40-4-208, #CA (1991), allows for modification

of support for installments accruing subsequent to notice of a

motion for modification of support, the court did not order

Ronald's support obligation to commence until October 1, 1993, even

though Terry was the primary physical custodian during this time.

She contends that the basis for this decision was the court's

consideration of Ronald's allegations that even though he had

previously paid $1800 of "past due child support" by stipulation,

he had not actually owed that amount. Terry asserts that the court

abused its discretion when it took into consideration these

allegations which had already been settled by stipulation.

Whether child support is awarded retroactively to the date of

notice of a motion for modification is clearly within the

10
discretion of the district court. In re Maniage of FronklWZson (1991) ,

250 Mont. 291, 297, 819 P.2d 1275, 1279. However, in this case,

the court based its decision to deny retroactive support at least

in part on Ronald's contention that he did not really owe the

amount he had paid pursuant to the prior stipulation.

During the hearing on this matter, Ronald reasoned that since

he had already paid support he did not owe, he should not have to

pay retroactive support now. In support of this claim, Ronald

introduced evidence regarding this 1992 stipulation. However,

Terry objected to the introduction of matters resolved by the 1992

stipulation, and the court agreed that the compromised settlement

of 1992 was a settled matter and was irrelevant. The presiding

judge stated that it was not appropriate to interfere with the

earlier settlement, "nor am I going to consider the compromised

settlement that was entered into, because these are done, as you

said yourself, a done deal."

We agree that issues involved in the earlier settlement which

were resolved by stipulation are not relevant to the question of

whether Terry was entitled to child support retroactive to the date

notice was given of the petition for modification. Prior

circumstances resolved by the 1992 stipulation should not have

formed the basis for the court's denial of Terry's request for

retroactive support. We conclude that to deny support on the basis

of the prior stipulation was an abuse of discretion.

11
If Terry is entitled to support during the times that one or

both of the children reside with her, then there is no reason to

distinguish between the support necessary after the court's order

and the children's needs from the time of Terry's petition until

the order was entered. Child support is for the benefit of the

children and the obligation exists regardless of disagreements

occurring between the parents. InreMam’ageofRyan (1989), 239 Mont.

100, 778 P.2d 1389.

This matter is remanded for a determination of the periods

during which Terry is entitled to support, based on the custodial

arrangements that existed at the various times subsequent to her

petition.

ISSUE 3

Should the District Court have awarded attorney fees to

Terry pursuant to the parties' settlement agreement and dissolution

decree?

The parties' separation agreement, which was incorporated into

the original dissolution decree, provided that "[slhould any future

action be commenced to enforce, modify or interpret any provision

of this Agreement, the Court shall award reasonable attorneys fees

for the successful party as a cost of suit." On the basis of this

provision, Terry contends she is entitled to reasonable attorney

fees in this action. She contends that the court erred when it did

not address this issue in any of its orders.

12
A review of the record reveals that Terry did not request

attorney fees as a form of relief in her original petition for

modification. The issue of attorney fees was not mentioned until

a brief in support of the petition was filed seven months later.

We conclude that an argument raised for the first time in a

supporting brief does not equate with raising an issue in the

pleadings and serving notice to the court and opposing parties of

the relief requested. When the issue of attorney fees is omitted

from the pleadings, and no evidence is presented on that issue at

trial, the issue is outside the purview of the District Court.

Naftco Leasing v. Finalco (1992) I 254 Mont. 89, 835 P.2d 728.

Accordingly, the court did not err when it did not address this

issue, and this Court will not consider a claim raised for the

first time after the trial, against which the opposing party had no

opportunity to defend.

The court's adoption of the parties' stipulation regarding

respective child support obligations is affirmed. The District

Court's denial of support retroactive to the date notice was given

of the motion for modification of the decree is reversed and

remanded for further proceedings consistent with this opinion.

Ju tice

13
We concur:

14
May 3, 1994

CERTIFICATE OF SERVICE

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

to the following named:

Don M. Hayes

HERNDON, HARTMAN, SWEENEY & HALVERSON, P.C.

P. 0. Box 80270

Billings, MT 59108-0270

James Robert Graves

OLIVER, GRAVES & TOENNIS, P.C.

P. 0. Box 7227

Billings, MT 59103-7227

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA