NO. 95-047 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

IN RE THE MARRIAGE OF 

DAVID L. SCHNELL, 

Petitioner and Appellant, 

and 

TWYLA L. SCHNELL, 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Larry W. Moran, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Lynda S. Weaver, Morrow, Sedivy & Bennett, 

Bozeman, Montana 

For Respondent: 

Marcelle C. Quist and Kendra K. Anderson, 

Quist, Bowen & Anderson, Bozeman, Montana 

Filed: 

Submitted on Briefs: July 27, 1995 

Decided: October 24, 1995 
Justice 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. We affirm 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 on the 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 

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Missouri upon which he and Twyla built a home during the marriage. 

Twyla and David also purchased a vacant lot in Missouri during the 

marriage. 

David is employed as the maintenance director at the Mount 

Ellis Academy boarding school (MEA) in Bozeman where he earns $2503 

per month. MEA allows a substantial 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 a full-time registered nurse and earns 

$2462.40 per month. 

Pursuant to a stipulation made in open court at a hearing to 

consider temporary relief, the court awarded the Missouri home to 

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 she would spend summers with 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, and all of Deanna's 

personal expenses, including clothing, spending money, 

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transportation, 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 on the Child Support Guidelines, or to specify why it 

declined to do so? 

We review a district court's child support award to determine 

if, in making the award, the court abused its discretion. In re 

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 

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standards and guidelines is unjust to the child or a 

party or is inappropriate in that particular case. 

An award based on the Guidelines bears a presumption 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 may rebut the 

presumption that they should be followed by presenting evidence 

that an award based on the Guidelines would not meet the child's 

needs. Rule 46.30.1507(l), ARM. Additionally, before a district 

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: In reMarriageofBrandon (Mont. 1995), 894 

P.2d 951, 52 St. Rep. 381, and InreMarriageofGriffin (1993), 260 Mont. 

124, 860 P.2d 78. In both cases, we held that district courts must 

apply the Guidelines when they award child support. As we stated 

in those cases, district courts must provide clear and convincing 

reasons pursuant to § 40-4-204(3) (a), MCA, to justify a deviation 

from the Guidelines. MarriageofBrandon (1995), 894 P.2d at 953; 

Marriage of Grl@n , 860 P.2d at 88. 

David also contends that the District Court's order gives 

Twyla unfettered discretion to determine how much child support she 

will pay. David relies on InreAdoptionofK.L.J.K (1986), 224 Mont. 418, 

421, 730 P.2d 1135, 1137, a case in which we held that "in-kind" 

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

his child. SeealsoInreMarriageofBurns (1982)) 198 Mont. 365, 646 P.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 we have 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, we held that the child 

support formula set out in InreMarriageofCarlson (1984), 214 Mont. 209, 

693 P.2d 496, does not bind district courts, but instead, provides 

suggestions for the district courts to follow. The Guidelines were 

established in 1987 and made binding upon courts in 1989 when the 

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 no longer apply. 

We conclude 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 of Brandon require. Nowhere in its order did the 

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District 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 no way for 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. 

ISSUE 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? 

We review a district court's award of a tax exemption to 

determine whether the court abused its discretion. In re Marriage of 

Milesnick (1988), 235 Mont. 88, 91, 765 P.2d 751, 753. 

David contends that he was entitled to the tax exemption in 

this case because, as an employee of MEA, certain benefits, which 

include Deanna's health insurance and a reduction in tuition, 

depend on his right to claim the exemption. He claims that the 

reduction in tuition alone is worth $1509.25, but that Twyla would 

realize a tax savings of only $367.50 by having the tax exemption. 

In other words, David claims that the benefits Deanna would receive 

if he were awarded the tax exemption far outweigh the benefits 

Twyla would receive from the current alternating award. 

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Twyla claims that she has no objection 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), 264 Mont. 317, 326, 871 P.2d 899, 

904, we held that district courts should enforce parties' in-court 

stipulations and agreements 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, we conclude that the District Court abused 

its discretion when it 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 can be claimed by David, so long as he is 

employed by MEA and Deanna attends school at MEA. Should either 

condition not exist, the exemption should be shared by the couple 

on an alternating annual basis. 

ISSUE 3 

Did the District Court err when it based its division of the 

couple's property on an oral stipulation? 

We review a district court's division of a marital estate to 

determine whether the court abused its discretion. In re Marriage of 

Muedje (1994), 263 Mont. 262, 265-66, 868 P.2d 580, 583. 

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David purchased land in Missouri prior to the marriage. 

During their marriage, he and Twyla built a home on this land. The 

District Court did not, however, give David credit for the value of 

this premarital property when the court divided Twyla and David's 

marital estate. 

Twyla contends that the court's disposition of the couple's 

Missouri home was 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 home in Missouri, Mrs. Schnell 

will purchase that home for one-half--from Mr. Schnell 

for one-half the appraised value. The parties will 

immediately have the property appraised. They will both 

equally pay one-half of the cost of that appraisal. Then 

she will, within 30 days of the receipt of the appraisal, 

pay Mr. Schnell one-half of that value. 

David did not object to the stipulation at trial. 

We recently affirmed a district court's enforcement of an 

in-court stipulation. See In re Marriage ofJakkola (1994) , 267 Mont. 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 same time, holding the parties to their 

on-record stipulations and agreements, it should do so." Marriage of 

Jakkola, 884 P.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, we concluded that district courts may not enforce an in-court 

stipulation unless the parties reduce it to writing. 

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We need not reach this issue, however. The stipulation was 

made in open court on June 16, 1992. The District Court filed its 

original order concerning the stipulation on July 10, 1992. David 

did not challenge the stipulation at trial, and now challenges the 

stipulation for the first time on appeal. We have previously held 

that parties cannot raise issues for the first time on appeal. 

Morse v. Cremer (1982), 200 Mont. 71, 81, 647 P.2d 358, 363-64. 

Therefore, based on the stipulation, we affirm the District Court's 

division of Twyla and David's marital estate. 

ISSUE 4 

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. In re Marriage of 

Barnard (1994), 264 Mont. 103, 109, 870 P.2d 91, 95 (citing Inre 

MurriageofBurris (19931, 258 Mont. 265, 272, 852 P.Zd 616, 620). 

Pursuant to § 40-4-110, MCA, and based on our decision in Inre 

MarriageofRager (1994), 263 Mont. 361, 868 P.2d 625, David contends 

that district courts must consider both parties' financial 

resources prior to awarding attorney fees. 

David asserts that because he and Twyla earn approximately the 

same amount of money, and because Twyla received substantial assets 

from the property settlement, Twyla has failed to prove that she 

was unable to pay her attorney fees or that David was in a better 

position to pay her attorney fees. 

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Twyla responds that David has repeatedly frustrated a timely 

disposition of this matter and cites 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 on InreMarriageofSyljuberget (1988), 234 Mont. 178, 763 

P.2d 323, a case in which we affirmed the district court's award of 

attorney fees to a wife when a majority 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, we conclude that the District Court did 

not abuse its discretion when it awarded Twyla attorney fees. 

Based on the foregoing discussion, we reverse the District 

Court in part, and affirm the District Court in part, and remand to 

the District Court for further proceedings consistent with this 

opinion. 

/ 

Ju,$tice 

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We concur: 

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