V THE 

No. 97-001 

IN RE THE MARRIAGE OF 

KLAS WAYNE HIGHTOWER, 

L.1E COURT OF THE STzATE OF MONTANA 

1997 

Petitioner and Respondent, 

and 

BOBBI JO HIGHTOWER, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial Districl, 

In and for the County oi'Missoula, 

The Honorabie John W. Larson, Judge presiding 

COUNSEL OF RECORD: 

For Appellant: 

Keny N. Newcomer; Geiszler & Newcomer, Missoula. Montana 

For Respondent: 

Howard Toole; Homard Toole Law Offices, Missoula, ,Montana 

Submitted on Bnefs: August 7. 1997 

Filed: 
Justice Karla M. Gray delivered the Opinion of the Court. 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1995 Internal 

Operating Rules, the following decision shall not be cited as precedent and shall be published 

by its filing as a public document with the Clerk of the Supreme Court and by a report of its 

result to State Reporter Publishing Company and West Publishing Company. 

Bobbi Jo Hightower (Bobbi Jo) appeals from the findings of fact, conclusions of law 

and alternative orders entered by the Fourth Judicial District Court, Missoula County, on her 

motion to modify child support and associated tax exemptions. We affirm. 

We address the following issues on appeal: 

1. Did the District Court abuse its discretion by considering inadmissible evidence? 

2. Did the District Court abuse its discretion in reiating modification of child support 

to visitation or lack thereof? 

3. Did the District Court abuse its discretion in determining the dates on which 

modified child support payments would begin? 

4. Did the District Court abuse its discretion in denying Bobbi Jo's rcquest to grant 

her the child-related tax exemptions? 

5. Did the District Court err in denying Bobbi Jo attorney fees as the prevailing party? 

BACKGROUND 

The 5-year marriage of Bobbi Jo and Klas Wayne Hightower (Klas) was dissolved in 

1989. The parties' Marital and Property Settlement Agreement (Agreement) was 
incorporated into the final decree and expressly determined not to be unconscionable. Bobbi 

Jo and Klas were awarded joint custody of their two minor children, with Bobbi Jo keeping 

the children with her for the 9-month school year and Klas having the children during the 3- 

month summer vacation. Klas was to pay Bobbi Jo $300 per month child support during the 

months the children resided with her and, in recognition of the need for Bobbi Jo to maintain 

a residence suitable for herself and the children even when they were with Klas for the 

summer, Bobbi Jo was not required to pay Klas any child support during the summer when 

the children resided with him. The Agreement expressly provided that the allocation of child 

support was based on the 2 to 1 disparity between Klas and Bobbi Jo's income at the time and 

gave Klas the tax exemptions associated with the minor children. Finally, the Agreement %. 

provided that if either party instituted proceedings to enforce, modify or interpret the 

Agreement, the court would award reasonable attorney fees to the prevailing party. 

In 1992, Bobbi Jo and Klas stipulated to increase child support to $350 for the months 

of September through May, when the children were in Bobbi Jo's custody. With regard to 

the summer months, Klas agreed to pay Bobbi Jo $350 per month in child support for any 

month in which the children spent 15 or more days with her and, otherwise, to pay $200 per 

month for those months. 

In February of 1996, Bobbi Jo moved to modifl child support by increasing it to meet 

the amount which would result from application of Montana's Uniform Child Support 

Guidelines, which she estimated to be approximately $423 per month. She also sought to 
claim the el-uildren as dependents for income tax purposes. As grounds for the motion, Bobbi 

Jo asserted that 1) Klas had not visited or provided care for the children in accordance with 

the provisions of the 1992 stipulation; 2) the cost of the children's care had increased as the 

children aged; 3) the parties' increasing income required reassessment of child support to 

accurately reflect the parents' income; and 4) the existing level of child support was 

unconscionable "as Klas does not see the children as frequently as was expected at the time 

the child support was last set." Ultimately, Bobbi Jo and Klas both requested an award of 

attorney fees pursuant to the "prevailing party" provision in the Agreement. 

After a hearing on Bobbi Jo's motion to modify, the District Court found that the 

parties agreed that child support would increase from $350 per month to $396 per month if 

Bobbi Jo received the tax exemptions and to $418 per month if the exemptions remained 

with Klas. It also found that Klas had not visited the children in 1993, 1994 or to date in 

1996 and that, as a result of the lack of visitation, Bobbi Jo had incurred additional expenses 

for the children's care. The court also found that the children's clothing expenses had 

increased, as had Bobbi Jo's housing expenses, although the latter increase resulted in large 

part from her purchase of a new home. with her husband. The court further found that the 

paities agreed that visitation between Klas and the children was important and desired by all 

concerned. Finally, the District Court found that, if visitation did not occur between Klas and 

the children for three of the last four years (that is, for three years during the 1993 through 

1996 time frame), the absence of visitation would amount to a change in circumstances so 
substantial and continuing as to render the existing child support and allocation of tax 

exemptions unconscionable. 

The court then entered alternative orders, depending on whether or not visitation 

occurred before the end of 1996. If visitation occurred, child support would increase to $41 8 

per month retroactive to September 1, 1996, Klas would retain the tax exemptions relating 

to the minor children, and each party would be responsible for his or her attoincy fees. In 

the alternative, if no visitation occurred, child support would increase to $396 per month 

retroactive to April 1, 1996, Bobbi Jo would receive the tax exemptions and Bobbi Jo would 

be awarded reasonable attorney fees. Bobbi So appeals. 

1. Did the District Court abuse its discretion by considering inadmissible evidence? 

In August of 1996, Klas made an offer ofjudgment to Bobbi So pursuant to which 

child support would increase to $41 8 per month and he would retain the tax exemptions. She 

rejected the offer. Unbeknownst to Bobbi So, Klas then filed the offer of judgment. Bobbi 

Jo contends on appeal that the District Court considered the offer of judgment, to her 

prejudice, and that the court's order should be vacated as a result. We disagree. 

Rule 68, M.R.Civ.P., provides that an accepted offer ofjudgment may be filed, but 

a rejected offer is deemed withdrawn and evidence thereof is not admissible. It is clear, and 

Klas concedes, that the offer ofjudgment was improperly filed. 

It is not clear, however, that the District Court considered the offer ofjudgment. In 

contending that it did so, Bobbi Jo points to the court's statement at the outset of its findings, 
conclusions and order that it had made a "thorough review of the file." We observe, 

however, that the District Court's findings, conclusions and alternative ordcrs do not 

specifically reference the offer of judgment. Furthermore, the judge in a matter trted to the 

court is presumed to have disregarded inadmissible evidence in making a decision. See, e g., 

Matter of M.L.H. (1986), 220 Mont. 288,293,715 P.2d 32, 35 (eitat~ons omlttcd). Finally, 

while Bobbi Jo contends that the District Court's alternative orders I) making the child 

support increase to $418 retroactive to September 1, 1996, and requiring the parties to pay 

their own attorney fees in the event visitation occurred before December 3 1, 1996; or 2) 

increasing child support to $396 retroactive to April 1, 1996, with an award of attorney fees 

to Bobbi Jo, "tracked" Klas' offer of judgment and lacked any other rationale, the record 

belies her contention. The offer of judgment neither mentioned any starting date for the 

offered increase ln ch~ld support, much less a September 1, 1596. date, nor addressed 

attorney fees. Moreover, nhile 5 40-4-208(1), MCA, prevented the Distrtct Court from 

modifling the child support obligation retroactive to a date prior to late February of 1996, 

when Bobbi Jo filed her motion to modify, Bobbi Joe cites to no authority under which thc 

District Court was required to make its alternative orders regarding the amount of child 

support retroactive to the same date. District courts haw substantial discretion in these 

regards. 

We conclude that Bobbi Jo has not established an abuse of discretion by the District 

Court in this regard. 
2. Did the District Court abuse its discretion in relating modification of child support 

to Klas' visitation or lack thereof? 

To obtain a modification of child support where the original decree contained supportrelated provisions, the n~oving party nmst make a "showing of changed circumstances so 

substantial and continuing as to make the [earlier] terms unconscionable." Section 40-4- 

208(2)(b)(i), MCA. We review the overall decision on modification of child support to 

determine whether the court abused its discretion. In re Marriage of Kovash (1995), 270 

Mont. 517, 521, 893 P.2d 860, 863 (citation omitted). 

Bobhi Jo advances a number of unrelated assertions of error with regard to the District 

Court's disposition of her motion to modify under this issue. First, she correctly cites to 3 

40-4-204(3)(a), MCA, and our cases thereunder, for the proposition that, when a district 

court modifies child support, it generally nwt apply the Uniform Child Support Guidelincs. 

We note in this regard the District Court's express finding that the parties agreed that, in the 

event modification was warranted, the proper amount would be $396 per month if Bobbi Jo 

were allocated the tax exemptions and $418 per month if Klas retained the exemptions. 

Bobbi Jo does not challenge this finding and we conclude that it is supportcd by substantial 

evidence and not otherwise clearly erroneous. 

Next, Bobbi Jo correctly contends that, in determining whether substantial and 

continuing changed circumstances have made the original child support unconscionable, 

district courts typically examine the relative positions of the parties. The District Court 
clearly did so here, finding that Bobbi Jo's annual income had increased significantly from 

$10,500 at the time of the dissolution to approximately S25,000 in 1995, while Klas' annual 

income had increased to approximately S28,000 In 1995, thus virtually eliminating the 

roughly 2 to 1 income disparity between Klas and Bobbi Jo at the time of the dissolution. 

Certainly, these parties' relative financial positions do not require a finding that the existing 

child support was unconscionable. In any event, and notwithstanding its finding that 

unconscionability did not yet exist, the District Court increased child support to the amount 

the parties agreed would be warranted under the Uniform Child Support Guidelines if 

unconscionability were determined to exist. (Klas did not cross-appeal from this increase in 

child support.) 

Finally, Bobbi Jo contends that the District Court abused its discretion by conditioning 

the amount of child support on Klas' exercise of, or failure to exercise, visitation. It is true 

that, as a general rule, visitation and support are independent of each other and the child 

support obligation cannot be conditioned on exercise of the right of visitation. See. e.g., In 

rc Marriage of Cox (1?94), 266 Mont. 67, 72, 878 P.2d 903, 906; Fitzgerald v. Fitzgerald 

(1?80), 190 Mont. 66, 68, 618 P.2d 867. 868. 

Here, however, the child support to which the parties stipulated in 1992--and which 

Bobbi Jo sought to have increased v1a her motion to modify--was directly related to tlic 

amount of visitation being exercised by Klas. Similarly, Bobbi Jo's 1996 motion to modlfy 

explicitly was premised on Klas' failure to visit or care for the children as frequently as had 
been contemplated at the time of the 1992 stipulation. Thus, in this case, the parties had 

structured Klas' child support obligation to relate directly to Has' visitation of thc children 

and Bobbi Jo's motion to modify was based on that relationship. 

Under these unique circumstances, we conclude that the District Court did not abuse 

its discretion in conditioning the amount of child support on Klas' exercise of, or failure to 

exercise, visitation. 

3. Did the District Court abuse its discretion in determining the dates on which the 

modified child support payments would begin? 

As set forth above, the District Court's alternative orders provided for increased child 

support in the amount of $418, retroactive to September 1, 1996, if visitation occurred before 

the end of the year, and increased child support to $396, retroactive to April 1, 1996, if 

visitation did not occur. Bobbi Jo contends that the court abused its discretion in these 

regards and that the effective date of either modified child support amount necessarily was 

February 28, 1996, the date of her motion to modify. We disagree. 

As discussed above, the District Court did not determine that the existing child 

support arrangements were unconscionable. Since modification requires such a 

determination (see 5 40-4-208, MCA), the court properly could have refused to increase 

child support. 

Furthermore, while 5 40-4-208(1), MCA, prevents a diskiet court from modifying a 

decree as to child support as to installments accruing prior to actual notice of a motion for 
modification, it does not require a court, as a matter of la\\, to make a modification effecthe 

on the date a motion to modify is filed. Nor do the cases on which Bohbi Jo relies support 

her contention in this regard. 

We conclude that the District Court did not abuse its discretion in determining the 

dates on which the modified child support payments would begin. 

4. Did the District Court abuse its discretion in denying Bobbi Jo's request to grant 

her the child-related tax exemptions? 

In the event of visitation by the end of 1996, the District Court set child support at 

$41 8 per month and left the tax exemptions relating to the minor children with Klas. Bobbi 

Jo argues that the court erred in doing so. 

As discussed above, the District Court found that the "parties agree that the level of 

support to be paid by Klas would increase from the existing $350 per month . . . to $396 per 

month if Bobbie [sic] Jo is granted the exemptions and to $418 per month if the depcndent 

exemptions remain with Klas." Bobbi Jo did not challenge that finding and we concluded 

above that the finding is not clearly erroneous. Bobbi Jo having agreed to increased support 

amounts corresponding to which party was granted the tax exemptions, and the District Court 

having acted on that agreement, Bobbi Jo cannot now be heard to argue for the larger child 

support amount and allocation of thc tax exemptions to her. We will not put the trial court 

in crror for an action in which Bobbi Jo participated and acquiesced. See Hando v. PPG 

Industries, Inc. (1995). 272 Mont. 146, 150. 900 P.2d 281,283 (citation omitted). 
We conclude that the District Court did not abuse its discretion in denying Bobbi Jo's 

request that she be granted the child-related tax exemptions. 

5. Did the District Court err in denying Bobbi Jo attorney fees as the prevailing party? 

The District Court concluded that, in the event visitation occurred before the end of 

1996, child support would increase to $41 8 per month, Klas would retain the tax exemptions 

and neither party would be the prevailing party for purposes of an award of attorney fees. 

Bobbi Jo contends that the District Court erred in denying her attorney fees when the 

Agreement and decree required an award of reasonable attorney fees to the "prevailing party" 

in any action to modify. We disagree. 

An award of attorney fees in a family law ease is generally within the district court's 

discretion. In re Mamage of Cards (1994), 263 Mont. 377, 385, 868 P.2d 615, 620. Where 

an agreement clearly provides for attorney fees to the prevailing party, however, the district 

court is bound by its terms. Doig v. Caseaddan (Mont. 1997), 935 P.2d 268,272, 54 St.Rep. 

263, 266 (citation omitted). The court's determination regarding the prevailing party is a 

conclusion of law and we review conclusions of law to determine whether the interpretation 

of the law is correct. Doig, 935 P.2d at 272 (citation omitted). 

No single factor is dispositive on the question of which party is the prevailing party. 

Doig 935 P.2d at 272 (citation omitted). In the present case, the relief requested, the 

showing necessary to warrant the requested relief, and the relief granted are appropriate 
considerations in determining whether the District Court erred in concluding that neither 

party was the prekailing party. 

Bobbi Jo's motion to modify child support sought 1) a determination that, pursuant 

to 5 40-4-208(2)(b)(i), MCA, substantial and continuing changed circumstances made the 

existing child support terms unconscionable; 2) a resulting increase in child support to 

approximately $423 per month, the amount she estimated would be required under the 

Uniform Child Support Guidelines; and 3) reallocation of the tax exemptions to her. The 

District Court did not make the requisite determination of unconscionability, did increase 

child support to the approximate amount Bobbi Jo had requested, and refused to reallocate 

the tax exemptions to Bobbi Jo. Thus, while Bobbi Jo received an increase in child support, 

she did not make the showing required by 5 40-4-208(2)(b)(i), MCA; nor did she prevail on 

her request for the child-related tax exemptxons. 

Bobbi Jo cites to no authority under wl~ich, in circumstances similar to these, she is 

the "prevailing party" as a matter of law. Indeed, most of her arguments relate to 

discretionary awards of attorney fees under 5 40-4-1 10, MCA, and our cases interpreting that 

statute. In this regard, we need observe only that Bobbi Jo's request for attorney fees was 

prcmised on the Agreement and decree, rather than on 5 40-4-1 10, MCA, and, therefore, the 

statute and cases thereunder on which Bobbi Jo relies have no application herc. 

On the basis of the totality of the considerations discussed above, we hold that the 

Dlstrict Court did not err in concluding that neither party was thc prevailing party and, on 
that basis, in refusing to award Bobbi Jo attorney fees as the prevailing party under the 

Agreement and decree. 

Affirmed. 

We concur: 

Justices 
September 8, 1997 

CERTIFICATE OF SERVICE 

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

following named: 

KERRY N. NEWCOMER, ESQ 

GEISZLER & NEWCOMER 

619 SW HIGGINS SUITE I( 

MISSOULA MT 59803 

HOWARD TOOLE 

ATTORNEY AT LAW 

126 EAST BROADWAY SUITE 25 

MISSOULA MT 59802 

ED SMITH 

CLERK OF THE SUPREiW COURT 

STATE OF MON-TANA