NO. 95-047 INTHESUPREME

COURTOFTHESTATEOFMONTANA 1995

IN RETHEMARRIAGEOF DAVIDL. SCHNELL,

Petitioner andAppellant, and TWYLAL. SCHNELL,

APPEALFROM: District Court of the Eighteenth Judicial District,

In andfor the County of Gallatin, TheHonorable Larry W.Moran, Judge presiding.

COUNSELOFRECORD:

For Appellant: Lynda S. Weaver, Morrow, Sedivy &Bennett, Bozeman, Montana For Respondent: Marcelle C. Quist andKendra K. Anderson, Quist, Bowen&Anderson, Bozeman, Montana

Filed: Submitted onBriefs: July 27, 1995 Decided: October 24, 1995Justice Terry N. Trieweiler delivered the opinion of the Court.

The appellant, David L. Schnell, filed a petition in the District Court for the Eighteenth Judicial District in Gallatin County for dissolution of his marriage to the respondent, Twyla L. Schnell. Following a hearing, the District Court entered its decree in which it provided for joint custody of the couple's only child, child support, and division of the marital estate. The District Court also ordered that David pay Twyla's attorney fees. David appeals from the District Court's decree. Weaffirm in part and reverse in part. The issues on appeal are: 1. Did the District Court err when it failed to award child support based onthe Child Support Guidelines, or to specify why it declined to do so? 2. Did the District Court err when it ordered that the tax deduction for the couple's daughter be shared without regard to her place of residence or the financial implications to the parties? 3. Did the District Court err when it based its division of the couple's property on an oral stipulation? 4. Did the District Court err when it awarded Twyla attorney fees? STATEMENT OF FACTS David and Twyla were married 'on June 25, 1978, in Columbia, Missouri. During the course of their marriage, they had one child, Deanna. Prior to the marriage, David had purchased land in

2Missouri uponwhich heandTwyla built ahomeduring the marriage.

Twyla andDavid also purchased avacant lot in Missouri during the marriage. David is employed as the maintenance director at the Mount Ellis Academyboarding school (MEA)in Bozemanwhere heearns $2503 per month. MEAallows asubstantial reduction in Deanna's tuition, and provides health insurance, so long as David is entitled to a tax exemption for Deanna. Twyla is employed as afull-time registered nurse and earns $2462.40 per month. Pursuant to astipulation madein open court at ahearing to consider temporary relief, the court awarded the Missouri hometo Tvla, but ordered that she pay one-half its appraised value ($25,000) to David. The court awarded David and Twyla joint custody of Deanna, but appears to have assumed she would attend school in Montana while either living with her father or in the dormitory, and that shewould spend summerswith her mother, who remained in Missouri. The tax deduction attributable to Deanna's dependency was awarded to Twyla in odd-numbered years, and to David in even-numbered years. The District Court ordered Twyla to pay as child support, all of Deanna's current school expenses, the expenses related to the care of Deanna's horse, andall of Deanna's personal expenses, including clothing, spending money,

3transportation, and piano lessons, until Deanna graduated from high

school or reached the age of 18, whichever occurred later. The District Court also awarded Twyla attorney fees. ISSUE 1 Did the District Court err when it failed to award child support based onthe Child Support Guidelines, or to specify why it declined to do so? Wereview adistrict court's child support award to determine if, in making the award, the court abused its discretion. Inre MarriageofNoel (1994), 265 Mont. 249, 252, 875 P.2d 358, 359 (citing InreMurriageofWeed (19921, 254 Mont. 162, 165, 836 P.2d 591, 593). The district court must employ its discretion realistically and must take into account the parties' actual situation. MarriageofNoel, 875 P.2d at 359 (citing InreMarriageofGebhardt (1989), 240 Mont. 165, 172, 783 P.2d 400, 404) David contends that the District Court erred because its award

was not based on the Uniform Child Support Guidelines. Section 40-4-204(3)(a), MCA (1993), directs district courts to determine the child support obligation by applying the standards in this section and the uniform child support guidelines

. . . unless the court finds by clear and convincing evidence that the application of the standards and guidelines is unjust to the child or to any of the parties or is inappropriate in that particular case. Section 40-4-204(3) (b), MCA (1993), provides that:

If the court finds that the guideline amount is unjust or inappropriate in a particular case, it shall state its reasons for finding that the application of the

4standards and guidelines is unjust to the child or a

party or is inappropriate in that particular case. Anaward based onthe Guidelines bears apresumption that it is reasonable and adequate. However, the Guidelines require that courts consider the merits and circumstances of each case. Moreover, the Guidelines provide that either party mayrebut the presumption that they should be followed by presenting evidence that an award based onthe Guidelines would not meet the child's needs. Rule 46.30.1507(l), ARM. Additionally, before adistrict court may deviate from the Guidelines, it must make specific written findings which demonstrate its reason for deviation from the Guidelines. Rule 46.30.1507(3), ARM. David contends that the District Court's decree contravenes two of our recent decisions: InreMarriageofBrandon (Mont. 1995), 894 P.2d 951, 52 St. Rep. 381, andInreMarriageofGriffin (1993), 260Mont. 124, 860P.2d 78. In both cases, weheld that district courts must apply the Guidelines whenthey award child support. Aswestated in those cases, district courts must provide clear and convincing

reasons pursuant to §40-4-204(3) (a), MCA,to justify adeviation from the Guidelines. MarriageofBrandon (1995), 894 P.2d at 953; MarriageofGrl@n, 860 P.2d at 88. David also contends that the District Court's order gives Twyla unfettered discretion to determine howmuchchild support she will pay. David relies onInreAdoptionofK.L.J.K (1986), 224Mont. 418, 421, 730 P.2d 1135, 1137, acase in which weheld that "in-kind"

5child support payments did not satisfy that parent's obligation to

his child. SeealsoInreMarriageofBurns (1982)) 198Mont. 365, 646P.2d 530; InreAdoptionofS.L.R. (1982), 196 Mont. 411, 640 P.2d 886. David asserts that the District Court's child support order sanctions the type of "in-kind" payments wehave previously prohibited. Twyla contends that the Guidelines are merely advisory in nature and not binding on district courts. Twyla relies on Inre MarriageofEnsign (1987), 227 Mont. 357, 361, 739 P.2d 479, 482, in support of this argument. In that case, weheld that the child support formula set out in InreMarriageofCarlson (1984), 214Mont. 209, 693P.2d 496, does not bind district courts, but instead, provides suggestions for the district courts to follow. TheGuidelines were established in 1987 andmadebinding upon courts in 1989whenthe Legislature amended 5 40-4-204, MCA. Therefore, to the extent Marriage of Carlson established a procedure that differs from the current regulatory framework, and to the extent we may have suggested in MarriageofEnsign that the Guidelines are suggestive and not binding, those decisions nolonger apply. Weconclude that the District Court abused its discretion when it determined child support because it did not consider the Guidelines. Nowhere in its order did the court cite the Guidelines

or §40-4-204, MCA. Nowhere in its order did the District Court state its reasons for not applying the Guidelines, as §40-4-204, MCA, and Marriage ofBrandon require. Nowhere in its order did the

6District Court state why a deviation from the Guidelines served

Deanna's best interests. Twyla's assertion that the Guidelines are suggestive and not binding ignores the clear statutory and regulatory requirements of 5 40-4-204(3), MCA, and Rule 46.30.1507(3), ARM. Moreover, there is nowayfor us to actually evaluate the amount of the District Court's child support award and compare it to the dollar amount that the Guidelines require. We conclude, therefore, that the District Court abused its discretion when it awarded child support in this case. ISSUE2 Did the District Court err when it ordered that the tax deduction for the couple's daughter beshared without regard to her place of residence or the financial implications to the parties? Wereview a district court's award of a tax exemption to determine whether the court abused its discretion. In reMarriage 

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Milesnick (1988), 235Mont. 88, 91, 765P.2d 751, 753. David contends that hewas entitled to the tax exemption in this case because, asanemployee of MEA,certain benefits, which include Deanna's health insurance and a reduction in tuition, depend on his right to claim the exemption. Heclaims that the reduction in tuition alone is worth $1509.25, but that Twyla would realize atax savings of only $367.50 byhaving the tax exemption. In other words, David claims that the benefits Deannawould receive if he were awarded the tax exemption far outweigh the benefits Twyla would receive from the current alternating award.

7Twyla claims that she has noobjection to David's receipt of

the tax exemption as long as David is employed by, and Deanna remains in school at MEA. In InreMarriageofSimms (1994), 264Mont. 317, 326, 871P.2d 899, 904, weheld that district courts should enforce parties' in-court stipulations andagreements to the extent possible and consistent with the court's primary duty to apply the appropriate statutory criteria. Based on the reasoning set forth in that decision, and the parties' apparent agreement regarding the best use of the tax exemption for Deanna, weconclude that the District Court abused its discretion whenit alternated the exemption between the parties without regard to how it could best benefit them and their daughter. That District Court tax exemption award is reversed. We order that the exemption canbeclaimed byDavid, solong as heis employed by MEAand Deanna attends school at MEA. Should either condition not exist, the exemption should beshared by the couple

onanalternating annual basis. ISSUE3 Did the District Court err whenit based its division of the couple's property onanoral stipulation? Wereview adistrict court's division of amarital estate to determine whether the court abused its discretion. InreMarriageof Muedje(1994), 263Mont. 262, 265-66, 868P.2d 580, 583.

8David purchased land in Missouri prior to the marriage.

During their marriage, heandTwyla built ahomeonthis land. The District Court did not, however, give David credit for the value of this premarital property whenthe court divided Twyla andDavid's
marital estate. Twyla contends that the court's disposition of the couple's Missouri homewas justified based on an oral stipulation entered into in open court while both parties were represented by counsel. In that stipulation, Twyla's counsel stated: Specifically, as to the homein Missouri, Mrs. Schnell will purchase that homefor one-half--from Mr. Schnell for one-half the appraised value. The parties will immediately havethe property appraised. Theywill both equally payone-half of the cost of that appraisal. Then shewill, within 30days of the receipt of the appraisal, pay Mr. Schnell one-half of that value. David did not object to the stipulation at trial. Werecently affirmed a district court's enforcement of an in-court stipulation. SeeInreMarriageofJakkola (1994),267Mont. 450, 453, 884 P.2d 783, 785. In that case, we held that: "To the extent that the court is able to apply the statutory [§ 40-4-202, MCA]criteria while, at the sametime, holding the parties to their on-record stipulations andagreements, it should doso." Marriageof Jakkola, 884P.2d at 785. David contends that pursuant to InreMarriage ofHayes (1994), 264 Mont. 350, 871 P.2d 913, the District Court abused its discretion when it enforced the stipulation. In that case, weconcluded that district courts maynot enforce anin-court stipulation unless the parties reduce it to writing. 9Weneed not reach this issue, however. Thestipulation was

madein open court onJune 16, 1992. TheDistrict Court filed its original order concerning the stipulation onJuly 10, 1992. David did not challenge the stipulation at trial, andnowchallenges the stipulation for the first time onappeal. Wehave previously held that parties cannot raise issues for the first time on appeal. Morsev.Cremer (1982), 200 Mont. 71, 81, 647 P.2d 358, 363-64. Therefore, based onthe stipulation, weaffirm the District Court's division of Twyla andDavid's marital estate. ISSUE4 Did the District Court err when it awarded Twyla attorney fees?We review a district court's award of attorney fees to determine whether the court abused its discretion. InreMarriageof Barnard (1994), 264 Mont. 103, 109, 870 P.2d 91, 95 (citing Inre MurriageofBurris (19931, 258Mont. 265, 272, 852P.Zd 616, 620). Pursuant to §40-4-110, MCA,andbased onour decision in Inre MarriageofRager (1994), 263Mont. 361, 868P.2d 625, David contends that district courts must consider both parties' financial
resources prior to awarding attorney fees. David asserts that because heandTwyla earn approximately the

sameamount of money, andbecause Twyla received substantial assets from the property settlement, Twyla has failed to prove that she

wasunable to pay her attorney fees or that David was in abetter position to pay her attorney fees. 10Twyla responds that David has repeatedly frustrated atimely

disposition of this matter andcites the District Court's findings and conclusions, in which the court referred to the several times it held David in contempt during the dissolution proceedings. Twyla also relies onInreMarriageofSyljuberget (1988), 234 Mont. 178, 763 P.2d 323, acase in which weaffirmed the district court's award of attorney fees to awife whenamajority of her attorney fees were due solely to the husband's lack of cooperation. The evidence clearly establishes that David has been uncooperative during the dissolution proceedings and willfully frustrated an expeditious resolution of the parties' differences. The financial burden of his behavior should not be borne by his former spouse. Therefore, weconclude that the District Court did not abuse its discretion whenit awarded Twyla attorney fees. Based on the foregoing discussion, we reverse the District Court in part, andaffirm the District Court in part, andremand to the District Court for further proceedings consistent with this opinion.

/ Ju,$tice

11We concur:

12