V THE No. 97-001

IN RE THE MARRIAGE OF KLAS WAYNE HIGHTOWER, L.1ECOURT OF THE STzATE OF MONTANA 1997

Petitioner and Respondent, and
BOBBI JO HIGHTOWER, Respondent and Appellant.

APPEAL FROM: District Court ofthe 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 shallnot be cited asprecedent and shall be published by its filing as a public document with the Clerk ofthe Supreme Court andby a report ofits result to State Reporter Publishing Company and West Publishing Company. Bobbi Jo Hightower (Bobbi Jo) appeals from the findingsof fact, conclusions oflaw 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. Didthe District Court abuse its discretionin reiating modification ofchild support to visitation or lackthereof? 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 denyingBobbi Jo attorney fees as theprevailing party? BACKGROUND The 5-year marriage ofBobbi Jo and Klas Wayne Hightower (Klas) was dissolved in 1989. The parties' Marital and Property Settlement Agreement (Agreement) wasincorporated into the final decree and expressly determined not tobe unconscionable. Bobbi Jo and Klas were awardedjoint custody oftheir 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 $300per month child support during the months the children resided with her and, in recognition ofthe need for Bobbi Joto 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. TheAgreement expressly provided that the allocation ofchild support wasbased on the 2to 1disparity 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 increasechild supportto $350 forthe months of Septemberthrough May, when the children were in Bobbi Jo's custody. With regard to the summer months, Klas agreed topay Bobbi Jo $350 per month in child support for any month in which the children spent 15ormore days with her and, otherwise, to pay $200 per month for those months. In February of 1996,Bobbi Jomoved tomodifl child supportby increasing itto 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 toclaim the el-uildrenas dependents forincome 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 ofthe 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 

### $350per 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 1996and that, as a result of the lack ofvisitation, 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 childrenwas important and desired by all concerned. Finally,theDistrict Court found that, if visitation did not occurbetween Klas and the children forthree ofthe last four years (that is, for three years during the 1993through 1996 time frame), the absence of visitation would amount to a change in circumstances sosubstantial 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. Ifvisitation occurred, child support would increaseto $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 Jowould 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 increaseto $418per month andhe would retain the tax exemptions. She rejected the offer. Unbeknownst to Bobbi So, Klas then filed the offer ofjudgment. 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 ofjudgmentmay be filed, but a rejected offer is deemed withdrawn and evidence thereofisnot admissible. It is clear, and Klas concedes, that the offer ofjudgmentwas improperly filed. It is not clear, however, that the District Court considered the offer ofjudgment. In contending that it did so, Bobbi Jopoints 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 tohave disregarded inadmissible evidencein making a decision. See, eg., 

### Matter ofM.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 $418retroactive to September 1, 

### 1996, andrequiring the parties to pay their own attorney fees in the event visitation occurred before December 31, 

### 1996; or 2) increasing child support to $396 retroactiveto April 1, 

### 1996, with an award of attorney fees to Bobbi Jo, "tracked" Klas' offer ofjudgment and lacked any other rationale, the record belies her contention. The offer ofjudgment 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 dateprior 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 establishedan abuse of discretion by the District Court in this regard.

### 2. Did the District Court abuse its discretionin relating modification ofchild support to Klas' visitation or lack thereof? To obtain a modification ofchild support wherethe 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, 893P.2d 860, 863 (citation omitted). Bobhi Joadvances a number ofunrelated assertionsoferror with regard to theDistrict Court's disposition ofher 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 generallynwtapply the Uniform Child Support Guidelincs. We note inthisregard the District Court's express findingthat 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 findingand we conclude that it is supportcdby 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 Courtclearly did sohere, finding that Bobbi Jo's annual income had increased significantly from $10,500 at the time of the dissolutionto approximately S25,000 in 1995, while Klas' annual income had increased to approximately S28,000 In 1995, thus virtually eliminating the roughly 2 to 1income disparity between Klas and Bobbi Jo at the time ofthe dissolution. Certainly, these parties' relative financial positions donot require a finding that the existing child support was unconscionable. In any event, and notwithstanding its finding that unconscionability didnot 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 contendsthatthe District Court abusedits discretion by conditioning the amount ofchild 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 ofvisitation being exercisedby Klas. Similarly, Bobbi Jo's 1996motion to modlfy explicitly was premised on Klas' failureto visit or care for the children as frequently ashad

### 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 ofthc 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 supportpayments wouldbegin? As setforth above, the District Court's alternative orders provided for increased child supportin the amount of$418,retroactiveto September 1, 1996,ifvisitation 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 amountnecessarily was February 28, 1996,the date ofher 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 ofla\\, to make a modification effecthe

on the date a motion to modify is filed. Nor dothe 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 $418 per month and left the tax exemptions relatingto the minor children with Klas. Bobbi Jo arguesthat the court erred 

### in doing so. As discussed above, the District Court found that the "parties agreethat the level of support tobe paidby Klas would increase fromthe existing $350

### per month


### . . .to $396

### per month ifBobbie [sic]Jo is granted the exemptions and to $418per month ifthe depcndent exemptions remain with Klas." Bobbi Jo did not challenge that finding and we concluded abovethat the finding is not clearly erroneous. Bobbi Johaving agreed to increased support amounts correspondingtowhich party was grantedthetax exemptions,and theDistrict Court having acted on that agreement, Bobbi Jo cannot now be heard to argue for the larger child support amount and 

### allocation ofthc 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 theDistrict Court

### errin denying BobbiJo attorney fees as the prevailing party? The District Court concluded that, in the event visitation occurred before the end of 1996, child supportwould increase to $418 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 decreerequired an award ofreasonable attorney fees to the "prevailingparty" 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 isbound 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 oflaw to determine whether the interpretation ofthe 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 ofthe tax exemptions to her. The District Court did not make the requisite determination ofunconscionability, did increase child support to the approximate amount Bobbi Jo had requested, and refused toreallocate the tax exemptions to Bobbi Jo. Thus, while Bobbi Jo received an increase in child support, she didnot make the showing required by 

## 5 40-4-208(2)(b)(i),MCA; nor did sheprevail on her request for the child-related tax exemptxons. Bobbi Jo cites to no authority under wl~ich, in circumstances similarto these, she is the "prevailing party" as a matter of law. Indeed, most of her arguments relate to discretionary awards ofattorney fees under 

## 5 40-4-1 10,MCA, and our cases interpretingthat 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, onthat basis, in refusing to award Bobbi Jo attorney fees as the prevailing party under the Agreement and decree. Affirmed.

We concur:

JusticesSeptember 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 126EAST BROADWAY SUITE 25 MISSOULA MT 59802

ED SMITH CLERK OF THE SUPREiW COURT STATE OF MON-TANA