No. 93-471 IN THE SUPREME COURT OF THE STATE OF MONTANA 1994

IN

### RE 

### THE MARRIAGE OF KENNETH G. CRAIB, Respondent and Appellant, and DEBRA L. RHODES, Petitioner and Respondent.

APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable JohnM. McCarvel, Judgepresiding.

COUNSEL OF RECORD: For Appellant: Susan J. Rebeck, Great Falls,Montana For Respondent: K. Dale Schwanke, Jardine, Stephenson, Blewett & Weaver, Great Falls, Montana

Submitted on Briefs: May 11, 1994 

## SEP221994 Decided: September 22, 1994Justice Fred J. Weber delivered the Opinion of the Court. Appellant Kenneth G. Craib (Kenneth) appeals an Order of the District Court of the Eighth Judicial District, Cascade County, which increased his child support obligation; awarded petitioner Debra L. Rhodes (Debra) a judgment for recovery of money she has paid for income taxes, interest and penalties; and awarded Debra attorney's fees and costs incurred in the action. The District Court's order covered motions by both parties to modify their originaldecree of dissolution of marriage entered onJune 8, 1988 in Cascade County. We affirm. The issues presented for review are: I. Did the District Court abrogate thebenefit thatKenneth received from his discharge in a federal bankruptcy proceeding? 11. Did theDistrict Court abuse itsdiscretionby increasing the amount of child support that Kenneth must pay? 111. Did the District Court abuse its discretion in granting judgment to Debra for 100 percent of the parties' income tax liabilitythat she was required topay followingthedissolution of theirmarriage? 

### IV. Did the District Court abuse its discretion in refusing to admit certain evidence offered by Kenneth? V. Did the District Court err in adopting Debra's findings of fact? VI. Did the District Court err in awarding attorney's fees and costs to Debra? The Property Settlement and Child Custody Agreement

2(Agreement) signed by Debra and Kenneth in connection with the dissolution of theirmarriage in 1988provided, among other things, that Kenneth would pay to Debra $200 per month for support of the parties' minor son; that Debra would receive the family home and would be responsible for the first mortgage on the home; that Kenneth would remain responsible for the second mortgage on the home, which had been taken out so that Kenneth could buy shop equipment for his business; and that the prevailing party in any subsequent action relatedtotheAgreement would recoverattorney's fees and costs incurred in that action. Unbeknownst to Debra, Kenneth had not filed the parties' previously prepared income tax returns for the years 1984, 1986 and 1987 at the time of the dissolution in 1988, and therefore, these liabilities were not included in the Agreement. The Agreement was prepared by Debra's attorney; Kenneth was not represented by counsel although he was encouraged to obtain separate counsel and represented in the Agreement that he had done so for purposes of reviewing the Agreement prior to signing it. InJuneof 1990,Debra filed an affidavit of contemptalleging Kennethwas in arrears $1802 in child supportand $900on a marital debt he had assumed. Subsequently, at a hearing held in July of 1990, Kenneth volunteered to pay an additional $50 per month in support and a lump sum of $1,000. Although Kenneth began making payments of $250 per month, he paid only $650 of the lump sum promised. In addition to being in arrears in his support payments,

### Kenneth also failed to make payments on a loan from Beneficial Mortgage Co. to cover the second mortgage on the home. Debra was required to pay $730 to prevent foreclosure and has made payments

on the Beneficial loan since Kenneth's default in early 1990. In December of 1990,Kenneth filed a Chapter 7

### bankruptcy petition and has since been discharged and relieved of his liability on the secondmortgage. Kenneth also failed topay a Sears accountand a loanhe had taken out at Village Bank which was collateralized by Debra's car. Because the bank failed to perfect its security interest in the car, Debra has not been required to make payments

on the loan fromVillage Bank. After filing his bankruptcy petition in December of 1990, Kenneth filed the late tax returns with the Internal Revenue Service (IRS)and theMontana Department of Revenue (MDOR) for tax years 1984, 1986 and 1987. In February of 1991, Debra received notices from the IRS assessingpenalty and interest in addition to the unpaid taxes from those years. Debra had signed the returns shortly after they were prepared and testified shewas unaware of anyunpaid tax liabilityat the time of thedissolution in 1988and until she received the IRS notices. She subsequently received similar notices from MDOR for taxes, penalty and interest. Debra had taxeswithheld fromher income during those years; the unpaid taxes represented tax liability for Kenneth's income from selfemployment in his auto body repair business. Debra was forced to borrow money to pay the IRS and to make payment arrangements with MDOR to prevent her property from beinglevied upon. Kenneth had scaled back his business, was not then employed and had petitioned for discharge inbankruptcy, making it impossible for the 

### IRS 

### or MDOR to collect from him at that time

even though the taxes would not be discharged in his bankruptcy proceeding. Kenneth did not notify Debra that he was filing the returns after his bankruptcy petition. Debra testified that, had sheknown, she could have filed separately for those years and not owed any taxes. Soon thereafter, in February of 1991, Kenneth contractedwith the Great Falls Tribune to paint newspaper dispensing machines and to deliver newspapers. Kenneth received a Chapter 7 bankruptcy discharge on April 5, 1991. In July 1991, he also began full-time employment with Procraft, a Great Falls automobile body repair business. He earns in excess of $40,000 per year from these

sources. He also has purchased a building for use in automobile body work; although he claimed he was not doing any body work for profit, he acknowledged that he had done so in the past on a "trade-out"basis and to assist in thepayment of attorney fees in this and another proceeding. At the time of the trial in this proceeding, Kenneth had more than twenty vehicles located on this property. InOctober of 1991, Kenneth remarried and has since supported his new wife and her two children. In February of 1992, Kenneth filed a petition to adopt one of his stepchildren on grounds her father was not supporting her. In that proceeding, Kenneth testifiedhe was not current in the supportof his own sonbecauseof personal disagreements with Debra but that he was able to meet his support obligations for their son. His petition to adopt his second wife's daughter was later denied. Just prior to filing his bankruptcy petition, Kenneth filed motions on November 28, 1990,tomodify supportand tobe relieved of the liability for the Beneficial mortgage loan, the loan on Debra's automobile and theSearsaccount. Debra latermoved foran increase in child support, for maintenance, for child support arrearages, for judgment for the amounts shehad been forcedtopay due toKenneth's default of theAgreement, and forrecoveryofwhat she had paid to the IRS and MDOR. The Agreement contains a provision by which each party representedtothe other therewereno debts incurred forwhich the other was not aware and could be held liable. In addition, it contains a provision providing that a non-defaulting party is entitled to recoverpayment suchparty is required tomake because of default, together with interest, attorney's fees and costs, including those incurred because of default under the Agreement. TheDistrict Courtawarded increasedchild supportretroactive to thedate of thepetition tomodify support in the amount of $400 per month through the end of 1992 and increased support in the amount of $475 per month beginning in January of 1993. The Court denied Debra's request formaintenancebut did awardher a judgment for the amounts she had paid to the IRS and the MDOR and for delinquent child support. The court further awarded to Debra her attorney's fees and costs incurred in this action according to theprovision in the Agreement. The court also found Kenneth in contempt for his arrearages in child support. 

### ISSUE I. Did the District Court abrogate the benefit received by Kenneth from his discharge in a federal bankruptcy proceeding? Kennethhasprovided theCourtwith a lengthy argumenton this first issue which essentially contends that the District Court substitutedan increase in support from $200 per month to $400 and $475per month foranaward of maintenance, whichwasbarred by the two-year limitationperiod set forth in § 40-4-208(2) (a),MCA, and for amounts which Debra has been forced to pay on the second mortgage obligationtoBeneficialMortgageCo. whichwasdischarged in his bankruptcy proceeding. According to Kenneth, he is now being forced topay maintenance and topay fora debt thathasbeen discharged in his bankruptcy proceeding by way of an unfounded increase in support for his son. Debra moved for both increased support and an award of maintenance. The District Court denied hermotion formaintenance and granted her motion to increase support. The amount of the child supportaward isaddressed separately in Issue I1below. The record does not supportKenneth's argumentthat the District Court substituted child support for the Beneficial loan which was discharged in Kenneth's bankruptcy proceeding. Kenneth's argumentthatthe increaseinhissupportobligation is a substitute 

### for maintenance or debt is similar to that presented and rejectedby thisCourt in In re theMarriage ofJones

(1990), 242 Mont. 119, 122-23, 788 P.2d 1351, 1353-54. In that 7case, the husband argued that he was being penalized by the court for using proper bankruptcy procedures in discharging a $43,594 debt to the wife and that the court erred by increasing a maintenance award because the debt to the wifehad been discharged in the husband's bankruptcy action. In Marriaae of Jones, this Court concluded that substantial credible evidence supported the award of maintenance and that the maintenance was not a mere substitute for the husband's debt to the wife. Similarly, we conclude here that Kenneth is not being penalized for using procedures under the Bankruptcy Code to obtain a new start. His argument relating to thebankruptcy is simplynot applicabletothe circumstances of this appeal. The Bankruptcy Act at 11 U.S.C. 

### I 523 does not allow a debtor to discharge obligations for child supportor for income taxes, the obligationswe are concernedwith in this appeal. As discussed below, an increase in child support is justifiedat thediscretion of the DistrictCourt upon a showing of a substantial and continuing change of circumstances. Section 40-4-208(2)(b)(i), MCA; Marriaae of Jones, 788 P.2d at 1354. We hold the District Court did not abrogate the benefit received by Kenneth from his discharge in the federal bankruptcy proceeding. ISSUE 11. Did the District Court abuse its discretionby increasing the amount of child support that Kenneth must pay? The standard of review this Court uses for child support awards iswhether a district court has abused its discretion. In

re the Marriage of Anderson (1993), 260 Mont. 246, 255, 859 P.2d 8451, 457. Factors to consider in setting support orders are set forth in 

### 5 40-4-204(3)(a), MCA, which provides in pertinent part: Whenever a court issues ormodifies an order concerning child support, the court shall determine the child support obligation by applying the standards in this sectionand theuniform child support guidelines adopted by the department of social and rehabilitation services pursuant to 40-5-209. 

## . . . Thedistrict court must use the child support guidelines in effect at the time itmakes its decision. Marriaqe of Anderson, 859 P.2d at 256. The court must initiallydetermine, however,there hasbeen "a showing of changed circumstances so substantial and continuing as tomake thetermsunconscionable. Section40-4-208(2)(b)(i)

## ,MCA. The District Court stated as follows: Debra has proven that there are substantial and continuing changes in circumstances such that the original award of $200 a month child support to her is unconscionable. The Agreement of the parties was made when Jason was 12 years of age. By the time Debra's Motion was filedhe was nearly 14 and he is now 17. The funds that Debra would have envisioned would have been used from her earnings to provide for Jason have had to be redirected to pay and discharge the Beneficial loan Ken had agreed topay. Within months after he filed his Motion he had taken on work at the Great Falls Tribune and at Procraft and earns substantial sums from both employments. He is acquiring a shop for $22,500.00 and has at least $5,000.00 equity in it. Any inability he had to not pay support for a time was brought upon himself. Debra is entitled to an increase in child support of $200 a month, for a total of $400.00 per month, retroactivetoDecember, 1990, payable throughthe end of December, 1992. Commencing January, 1993, she is entitled to an increase of $275.00 a month for total support of $425.00 [sic]permonth. She isalso entitled to interest on the retroactive amounts. Although the court's conclusion of law incorrectly states $425 per month, the judgment clearly orders a payment of $475 per month.

### The court attached calculations to its decision which had been prepared by Debra that reflect Kenneth's ability to pay at least $288 a month child support in 1992 based on the parties' 1991 income, and at least $353 a month beginning in January of 1993 

### based on 1992 income figures. Kenneth's argument that the court used the guidelines in effect prior toJuly 30, 1992 for the award of $400 through the end of 1992 and the higher award of $475 per month after that date is inapplicablehere: the difference in the awardbeginning inJanuary of 1993 is supportedby Kenneth's change in income in 1992 and his purchase of a shop building making it possible for him to earn self-employment income in additiontohis wages and contract income. Because Debra's guideline calculations were attached to the court's order, Kenneth translates the amount of support awarded

over the calculated amounts as maintenance or dischargeabledebt. Debra's calculations, however, are the only calculations which include the income attributable to Kenneth as well as the appropriate tax liability. The District Court made no indication whatsoever that the increase in support was a substitute for maintenance or dischargeable debt. The child support guidelines are termed "guidelines" and as such are not set in stone. Moreover, the District Court had the discretion to consider other matters affecting theparties aswell as their income. Child support awards necessarily require a district court to consider numerous factors in addition to the amount of income of each parent.The courts can also impute income to a party based on the particular facts of a case. In this case, there was substantial evidence presented which indicated that Kenneth had not reported all income from self-employment during the years theparties were married. Debra did not include imputed income in calculating her proposed supportpayment under the guidelines. However, evidence

was introduced that Kenneth had more than twenty vehicles--many belonging to others--at his shop at the time of the trial in this matter. The District Court noted: THE COURT: There is another old aphorism that says 

## -- Patrick Henry said, "Iknowno better way of judging the future than by the past." But you have got to have proof.



# . . . She suspectshe did. And he probably did. Even now he has got 20 cars over there on the lots, and he probably is remodeling them, and refurbishing, and reselling them, and making a lot more profit than would appear. The DistrictCourt's findings justifyanaward of support inexcess of the amount calculated under the guidelines. There is evidence of an increased need in support as Jason, although still a minor,

was attending college at the time of the trial Kenneth also contends that the District Court erred by including income from Kenneth's contracts with the Great Falls Tribune in computing support. The 1992 guidelines state as follows: If a person with a subsequent family has income from overtime or a second job, that income is presumed to be for the use of the subsequent family,and is not included in gross income for the purposes of determining support for a prior family. Thepresumptionmay be rebuttedupona showing that the additional income is discretionary. 46.30.1508 (3)

### , ARM. Evidence introduced at trial indicated that Kenneth did not take on extra jobs after acquiring his second family and thathewasworking all these jobsprior tohismarriage to his secondwife. He provided no testimony that the income from the second and third jobs was necessary for the support of his second family although he testified that his stepson was handling the newspaper delivery job and garnering the income from that contract. Kenneth did not produce documentation to this effect and, in fact,his tax returns showthathe receivesthe income from this contract with the Tribune. Kenneth further testified that this incomewould be used for support of his stepson in any case. We note that Kenneth has no obligation to support his stepchildren; however, he has an obligation to support his son Jason from his marriage to Debra. See In re the Marriage of Carlson (1984), 214 Mont. 209, 218, 693 P.2d 496, 501. Although Kenneth attempted to adopt one of his stepchildren based on her father's nonpayment of support, his petition for adoption was denied. We conclude that any money Kenneth uses to support his stepchildren may be classed as discretionary income for purposes of this case. Contrary to Kenneth's contentions, the 1992 guidelines allow the court to include income from his second and third jobs when computing support. The inclusion of this income is supported by the findings of the DistrictCourt. The courtenumerated extensive findingswhich include the following:[FindingNo. IV.] AlthoughKentestifieddissolutionof the marriage had a negative effect on him emotionally, which affected his business, his self employment income in 1988 and 1989 was significantly greater than it had been in 1987 or before.

# . .

# .

[FindingNo. VI. 

### ] During much of the time Ken was reporting lowamounts of income fromhis self-employment in the early tomid-1980's theparties were refurbishing the family residence. Ken testified he did work for individuals who in turnworked on thehome on a trade-out basis. The value of the work performed on the home was not reflected in the parties' income. Ken also had trade-out arrangements with others. It is not possible to determine the value of this trade-out work because there are no records reflectingwhat the trade-outs may havebeen. However,he testifiedhedid $1,000 of tradeout work for feesAttorney Brett Asselstine charged him when Asselstine represented Ken in a 1992 adoption proceeding. He also testified he had done $3,000 to $4,000 of work forhisattorney in thisproceeding topay a portion of her fees. [FindingNo. XVIII.] 

# . Based on [Ken's] experience and expertise, and the availability of jobs, he should have been able to find employment in 1989 or 1990 as an autobody repairman within three months after starting to look for such work, and would have earned no less than $11.50 an hour. [FindingNo. XXIII.] 

# . . . The form 1099 issued by the Tribune was issued to Ken and the contract for the route is in Ken's name. Ken testified he was uncertain as to what he was going to do with respect to the route after Nathan graduated from school in 1994. Even if Nathan was receiving some of the income from this contractwork Ken testified it was going topay sumsthat otherwise would have had to have been provided for Nathan.

[FindingNo. XXV.] Ken remarried in October, 1991. At that time he was substantially delinquent in his child support obligation for Jason. He also knew his present wife, Elisa, could not work, that she had two children that would be living with them, that she owed various debts, and that her children weren't receiving child support. [FindingNo. XXXIII.] Jason has just turned age 17. He is 5years older thanwhen themarriage was dissolved and it costs more to care for him now than it did when the marriage was dissolved. This together with theadditional sums Debra has had to pay out to secure the home forthem increasedher need for child supportbeyond what the need was when the marriage was dissolved. In the Conclusions of Law, the District Court stated: [ConclusionNo. 

### I.] 

# . . .TheCourt believesKenhas not and does not report all the income he earns from selfemployment, but even so his 1988 and 1989 income tax returns reflect that he was earning more after the marriagewas dissolvedthanbefore. Even ifhisbusiness commenced to fail he could have secured work as an auto body repairman in Great Falls for no less than $11.50 an hour, in a short time, which is imputed to him, and in fact,he had obtained a job for $11.50 an hour at Bison Motors, which he apparently did not take. By July 1, 1991,he was working at Procraft for $13.50 anhour. He also testified in another proceeding that he was able to pay the support for Jason,but didn't do sobecause of a disputewith Debra. If anythinghis ability topay child support was only temporarily changed and a temporary change in circumstances is not sufficient to justify modificationof child support. Section40-4-208,M.C.A.; In Re Marriase of Forsman, 229 Mont. 411, 747 P.2d 861. The record supports Debra's increased need for support based

on her having to pay debts assigned to Kenneth from as far back as early 1990. In 1991, Debra paid the past due amounts to the IRS and MDOR and is obligated to repayher aunt formoney she borrowed to pay some of the taxes. Further, Debra testified she had borrowed $3,000 against her Tribune retirement plan to use for living expenses for herself and Jason. Clearly Debra has used and continues to use money for Kenneth'sdebts and for tax liabilities which otherwisewould have gone to the support of Jason. Moreover, had the taxes been filed on time as Debra thought they had been, the penalties and interest--substantial sums--would not have been assessed. According to the record, this was entirely Kenneth's fault. The support increase is retroactive to December of 1990. Although the District Court noted that the support obligation forthe year 1991should be based on the child support guidelines that

were in effect at that time, there is no evidence that the amount awarded is actually calculated on previous guidelines. In fact, the District Court proceeded on thepremise that the amount of the guidelineswas a discretionary recommendationwhichhedidnot have to follow. On this basis, we conclude the amount awarded for support can be justified under either set of guidelines. Kenneth also contends that the court erred by miscalculating his equity inhis shopproperty. The record indicatesthatKenneth paid a $2,500 down payment on this property and another $2,500 balloon payment and that he is paying in excess of $250 per month

on this property. The second $2,500 payment was made with money borrowed from his employer and some of that was not repaid at the timeof trial. The entire $5,000 in equitywas included as incomeproducing property in the calculations made by Debra which were attached to the court's order. The total annual income attributed to Kenneth from the $2,500 which was borrowed from his employer is approximately $175. According to the facts of this case, we conclude this amount is insignificant for a determination of support. Finally, Kenneth argues that Debra's retirement accounts should have been included as income-producing property in determining the amount of support under the guidelines. Debra has approximately $40,000 in two retirement accounts. One of these accounts is through her employer, the Great Falls Tribune; the other iswith Buttreys, a previous employer. She has taken out aloan for $3,000 against the Tribune account and ismaking payments

on that loan. We concludethese accountsarenotproperly included

as income-producingproperty. Kenneth's argument that these accounts should be included as income-producingpropertybased on our recentdecision in Inre the Marriage ofHunt (1994), 870P.2d 720,729-30, 51St.Rep. 209, 216, is misguided. In Marriaqe of Hunt, the husband argued that the wife's contributions to her unqualified retirement account could not be deducted from income; here Kenneth contends that all contributions to date should be included as income-producing property. He has not made the argument made in Marriase of Hunt that Debra has contributions which should be included in gross income. Moreover,Kenneth did not argue in the trial court that these were not qualified retirement accounts. Debra had no notice that he would argue this on appeal and thus did not submit evidence on this issue. An issuewill not be reviewed if it israised for the first time on appeal. Erlerv. Erler (l993), 261Mont. 65,73, 862 P.2d 12,18. Therefore,we conclude thatKenneth isprecluded from making this argument on appeal to this Court. Section 40-4-204(3)(a), MCA, provides that the amount of support awarded using the applicable standards and guidelines is presumed to be adequate and reasonable unless the court finds 

### by clear and convincing evidence that the application of them is unjust to the child or toany of theparties or is inappropriate in the case. We hold the District Court properly exercised itsdiscretion in increasing the amount of child support that Kenneth must pay for the support of Jason. ISSUE 111. Did the District Court abuse its discretion in granting judgment to Debra for 100 percent of the parties' income tax liability shewas required topay subsequent to the dissolutionof theirmarriage? The tax returns for tax years 1984, 1986 and 1987were never filed by Kenneth during the parties' marriage, apparently because there was money due for those periods. The return for 1985 was timely filed and a refund received by the parties during the marriage. Kenneth had control of the returns after he received them from theparties' accountantand after Debra signed them. The relevant evidence in the record supports the District Court's finding that Debra was unaware at the time of the dissolution in 1988 that the tax returnshad not been filed and taxeshad notbeen paid.Debra testified that shewould have filed separate returns for those years had she known they were not filed. This testimony is supportedby further evidencethat her employer withheld sufficient tax from her salary to cover her separate tax liability for the three years. Moreover, Debra did not include unpaid tax liabilities as part of the Agreement between the parties. Further, Kenneth did not notify Debra that he was going to file the returns late prior to filing them in January of 1991. Debra's first notice came when she received the first assessment notices from the IRS in late February of 1991. If Kenneth had notified Debra or if hehad filed separately,Debrawould have had 17the option of filing separate returns for those years, and since she had had enough withheld from her salary to cover her separate tax obligations, shewould not have owed any tax personally. TheAgreement contains the following clause: Wife represents and warrants toHusband she has not incurred any debts or made an (sic) contracts of which Husband may be unaware and for which Husband or his estate may be liable, and Wife will not incur any such debts ormake any such contracts. 

### If Wifeviolates this provision and as a result thereof Husband is obliged to make a payment or payments to others, he shall have the right to recover the same from Wife together with interest at the highest rate allowed by law, and, if reasonably necessary, he shall also be entitled to any costs of collection, including reasonable attorney's fees. Husband makes the same representations and warranties to Wife as Wife has hereinabove made to Husband and assumes the same obligations in the event Wifemust make a payment or payments to othersby reason of debts assumed by Husband hereunder. Italso includesthe following "HoldHarmlessAgreement": Wife and Husband agree each with the other to defend, indemnify and save each other harmless of, from and against any and all loss, damage, costsand expenses, including reasonable attorney's fees, which either of themmay hereafter suffer, incur, sustainor be subjected to as a result of any and all defaults in connection with this agreement and payment of any of the debts and obligations assumed by them. Although theunpaid tax liabilitiestothe IRS andMDOR should have been included in the Agreement, they were not included based on Kenneth's silence. Because Kenneth withheld this information, the debt became larger. When he finally filed the returns,he had temporarily insulatedhimself fromhaving topay thedebts. Debra,

on the otherhand,was in a positionwhereby the IRS and MDOR could collect the taxes, penalties and interest from her. In all likelihood,Kennethwas aware of this and hisactionsmay havebeenintentional, judging from the acrimony between the parties. When the tax debtshad been paid by Debra, Kennethbegan his employment with Procraft. Clearly, the Agreement covers a situation such as this where

a debt is not included as part of a property settlement agreement despitetheknowledgeand representation of one of theparties. We conclude the Agreement provides for indemnification by the defaulting party and speaks for itself. District courtsworking in equity are given great discretion in dividing the marital estate in order to achieve a fair distribution of marital property using reasonable judgment and relying on common sense. In re the Marriage of Kimm (1993), 260 Mont. 479, 483, 861 P.2d 165, 168. Allocating the entire tax debt toKenneth isreasonable under the facts of this case. We conclude the District Court's findings which support the allocation of the entire tax liability to Kenneth are not clearly erroneous and the court did not abuse its discretion in determining that Kenneth should be responsible for the entire tax liability for the years 1984, 1986 and 1987 and in granting a judgment in favor of Debra for the joint taxes,penalty and interest she has paid subsequent to the dissolution. We hold theDistrict Court did not err or abuse itsdiscretion ingranting judgment to Debra for all income tax liability shewas required to pay subsequent to the dissolution of the parties1 marriage.ISSUE IV. Did the District Court abuse its discretion in refusing to admit certain evidence offered by Kenneth? Kenneth contends that certain information should have been admitted by the District Court to demonstrate that the Agreement unfairly divided themarital property. That Agreement was signed by the parties in May of 1988 prior to the dissolution of their marriage inJuneof 1988. Kenneth's reason fortrying to introduce this information is as follows: MS. REBECK: If I might, there is an issue that is missing from the agreement, and that is the income tax responsibility. And it's ourpositionwhen something is missing from that agreement, this Court has to construe whose responsibility that is. And to do that, the Court needs to understand the relative positions of the parties at the time the agreementwas entered into, and who got what soyou can construe the responsibility for the income tax. The court denied admission of any evidence pertaining to the circumstances at the time of the dissolution, repeatedly stating that "the agreement speaks for itself." TheAgreement containsno reference to unfiled tax returns or tax liability. Debra's attorney prepared the Agreement which Kenneth signed. Kenneth represented that he had contacted an attorney prior to signing the Agreement and that it covered all assets and liabilities of the parties at that time. For reasons unknown,he knowinglywithheld information about liabilities which should have been included as part of that agreement. Rulings on the admissibility of evidence arewithin the sound discretion of the trial court and will not be overturned on appealabsent an abuse of discretion. Zimmermanv. Robertson (1993), 259 Mont. 105, 110, 854 P.2d 338, 341. Evidence which isnot relevant is inadmissible. Rule 402, M.R.Evid. We conclude the District Court properly refused to admit evidence in thisproceeding about the circumstances at the time of the dissolution. We further conclude that the court's statement that the agreement speaks for itself is a determination that the evidence sought to be admitted was not relevant to this proceeding. We hold the District Court properly exercised its discretion in refusing to accept evidence pertaining to circumstances at the time of the dissolution. ISSUEV. Did the District Court err in adopting Debra's proposed findings of fact verbatim? Kenneth contends that the findings of fact signed by the District court are a "verbatim replication1' of the findings proposed by Debra. The District Court, in fact, did adopt Debra's proposed findings with very little change. We note also that the court stated during the trial: But it appears tome there isn't much dispute about the facts of this case. Most of those facts can be stipulated to. That'swhy Idon'tknowwhywe arehaving all this testimony. ThisCourthasrepeatedly stated that a trial court's findings of fact, althoughverbatim from or similar to those proposed by a party, will be affirmed if they are supported by substantial credible evidence in the record. In re the Marriage of Bolt (1993), 259 Mont. 54, 57-58, 854 P.2d 322, 324. Kenneth does notpoint to findings which are inaccurate: rather,he claims there are numerous factual findings which canbemade fromthe evidencewhich were not listed in the District Court's order. We conclude the District Court's findings are supported by substantial credible evidence in the record. We hold the District Court did not err by adopting Debra's proposed findings of fact almost verbatim. ISSUE VI. Did the District Court err in awarding attorney's fees and costs to Debra? Kenneth also contends that the District Court erred by awarding attorney's fees and costs to Debra because there was no clear winner in the case and also because there is no evidence to show thatDebra is without resourcestopayher counsel. Kenneth's arguments on this issuehave no merit. The award in this case was not based on § 40-4-110, MCA, as Kenneth contends; rather, the Agreement clearly provides for an award of attorney's fees and costs under the circumstancespresent here. Itprovides: Wife 

### and Husband agree each with the other to defend, indemnify and save each other harmless of, from and againstany and all loss,damage, costsand expenses, including reasonable attorney's fees, which either of themmay hereafter suffer,incur, sustain or be subjected to as a result of any and all defaults in connectionwith this agreement and payment of any of the debts and obligations assumed by them. Clearly this provides for attorney's fees and costs to be awarded to Debra in connection with Kenneth's conduct and misconduct subsequent to the dissolution of marriage. The District Court based the award of attorney's fees and costs on the contractbetween the parties including the above-quoted provision and the provision by which Kenneth represented that there were no other debts 

### of themarriage. We hold the District Court correctly awarded attorney's fees and costs to Debra. Affinned.

We Concur:

JusticesJustice James C. Nelson specially concurs and dissents.

I concur with the Court's opinion 

### on all 

### issues except Issue 2. On that issue 

### Iwould remand and 

### require application of the 1992guidelines,and 

### if the~istrict Court awards support in excess of those guidelines, I would require proper justification in the courtisfindingsand conclusions. 

### Inthatregard 

### Iwould alsohold that the District Court 

### (a)was correct 

### in including Ken's earned income 

### fromhis second and third jobs. Section 46.30.1508(3), ARM; (b)was correct in excluding Debra's retirement fund,but in error innot includinghermonthly contribution

### to that fund 

### inher 

### gross income,unless there is evidence that Debra is contributing to an IRS-approved plan. Section 46.30.1516 (1)

### , ARM; and (c) erred in including Ken's equity in his 

### shop building since 

### it was a performing asset. Section 46.30.1514, ARM.