No. 95-552

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

APPEAL FROM: District Court of the Seventh Judicial District,

In and for the County of Richland,

The Honorable Richard G. Phillips, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Phillip N. Carter, Attorney at Law,

Sidney, Montana

For Respondent:

Peter 0. Maltese, Attorney at Law,

Sidney, Montana

Filed:

Submitted on Briefs: July 18, 1996

Decided: August 27, 1996

CYerk
Justice Charles E. Erdmann delivered the opinion.of the Court.

Appellant Carrie Dishon appeals from the orders issued by the

Seventh Judicial District Court, Richland County, modifying an

award of child support and denying her motion for attorney fees.

We affirm in part and reverse in part.

The issues on appeal are as follows:

1 . Did the District Court abuse its discretion when

calculating Trevor Dishon's child support obligation?

2 . Did the District Court err in denying Carrie's request

for attorney fees?

FACTS

Trevor and Carrie were married on July 12, 1991, in Sidney,

Montana. Prior to their marriage, Carrie gave birth to their son

Cody on April 24, 1991. On December 1, 1993, Trevor filed a

Petition for Dissolution of Marriage, which was granted on

November 15, 1994. The divorce decree provided that Trevor would

pay $43 per month in child support until he finished school and was

employed, at which time the child support award could be reviewed.

In May 1995, Trevor graduated from Montana State University

with a degree in construction engineering and accepted employment

in Las Vegas. Upon discovering that Trevor was employed in Nevada,

Carrie filed a motion to modify child support. Trevor did not file

a response to the motion, nor did he personally appear. At the

hearing, Trevor's attorney appeared and informed the court that

Trevor recognized his obligation for the increased child support

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but was not present due to the expense of traveling to Sidney and

the loss of wages that he would incur for that period.

Trevor submitted a financial affidavit to the court and in

that affidavit he marked two variances which he believed would

justify variation from the strict application of the child support

guidelines. The variances were for the cost of living differential

based on the geographic location of the parties and for the cost of

long distance visitation. The court, in its order modifying child

support, stated that it found insufficient evidence to grant the

variance for cost of living differential, but took judicial notice

of the distance between Las Vegas and Sidney and granted a $73 per

month variance for long distance visitation.

In a separate order, the court denied Carrie's motion for

attorney fees, noting that it had just increased child support from

$43 per month to $425 per month, and that both parties were equally

capable of paying attorney fees. Carrie appeals from the order

modifying child support and from the order denying her an award of

attorney fees.

ISSUE 1

Did the District Court abuse its discretion when calculating

Trevor Dishon's child support obligation?

In child support modification cases, we review a district

court's findings of fact to determine whether they are clearly

erroneous. In re Marriage of Kovash (1995), 270 Mont. 517, 521,

893 P.2d 860, 862-63. A district court's conclusions of law are

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reviewed to determine whether the court's interpretation of the law

was correct. Kovash, 893 P.2d at 863. Finally, we review a

district court's overall decision on modification of child support

awards to determine whether the court abused its discretion.

Kovash, 893 P.2d at 863. See also In re Marriage of Brandon

(1995), 271 Mont. 149, 152, 894 P.2d 951, 953.

Child support awards and modifications must be determined

under the Montana Child Support Guidelines. Section 40-4-204, MCA,

provides in part:

The amount determined under the guidelines is presumed to

be an adequate and reasonable support award, 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.

In order to rebut this presumption, the party seeking the variance

from the guidelines must present competent evidence showing that

the application of the guidelines would be unjust or inappropriate.

In re Marriage of Welch (1995), 273 Mont. 497, 504, 905 P.2d 132,

136; Platt v. Platt (1994), 267 Mont. 38, 41, 881 P.2d 634, 636.

We have previously stated that a bare claim of entitlement to a

variance is insufficient. m, 905 P.2d at 136.

Trevor checked the variance for the cost of long distance

visitation on his financial affidavit, but he did not, as required

by the affidavit, provide any factual details in support of his

claim. He did not appear at the hearing and his attorney did not

present any evidence as to what the visitations may cost Trevor or

how often they may occur. The record is devoid of any evidence of

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prior or projected travel expenses for Trevor's long distance

visitation. Without any evidence as to cost or occurrence, all

Trevor presented to the District Court was a bare claim of

entitlement.

The District Court took judicial notice of the distance

between Las Vegas and Sidney, as permitted by Rule 201 of the

Montana Rules of Evidence, and awarded Trevor a monthly variance of

$73. Although the court did not err by taking judicial notice of

the distance, that alone does not constitute clear and convincing

evidence that the application of the guidelines was unjust to

Trevor or was inappropriate in his situation. Welch, 905 P.2d 132.

Further, since the District Court had no evidence as to cost or

occurrence of projected visitation, the $73 per month variation was

based on speculation. A district court cannot base child support

upon speculation. In re Marriage of Cox (1994), 266 Mont. 67, 73,

878 P.2d 903, 907. We therefore hold that the District Court

abused its discretion in granting a variance for Trevor from the

child support guidelines in the amount of $73 per month and reverse

the District Court on that issue.

ISSUE 2

Did the District Court err in denying Carrie's request for

attorney fees?

The District Court denied Carrie's motion for attorney fees

pursuant to 5 40-4-110, MCA. This section provides that the court

may order a party to pay a reasonable amount for attorney fees

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after considering the financial resources of both parties. Section

40-4-110, MCA. We review a district court's decision not to award

attorney fees under 5 40-4-110, MCA, to determine whether the court

abused its discretion in refusing to award such fees. In re

Marriage of Smith (1990), 242 Mont. 495, 503, 791 P.2d 1373, 1378;

In re Marriage of Nalivka (1986), 222 Mont. 84, 91, 720 P.2d 683,

688.

Carrie argues that Trevor's failure to file a response to her

motion for attorney fees is an admission that her motion is well

taken. Although Rule 2(b) of the Uniform District Court Rules

provides that a failure to file an answer brief within ten days

shall be deemed an admission that the motion is well taken, it does

not require the district court to grant the unanswered motion.

Maberry v. Gueths (1989), 238 Mont. 304, 309, 777 P.2d 1285,

1288-89.

Pursuant to 5 40-4-110, MCA, the district court must consider

the parties' financial resources in determining whether an award of

attorney fees is appropriate. Nalivka, 720 P.2d at 688. The

District Court had both Trevor's and Carrie's current financial

affidavits and the record indicates that the court was well aware

of their respective financial resources. After considering this

information, the court concluded that neither party was in a better

position to pay attorney fees. Although the record reflects that

Carrie was not in as strong of a financial position as Trevor, the

financial affidavit filed by Trevor, along with the increase in

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child support ordered by the District Court, indicates that he also

had little discretionary income. We conclude that the District

Court did not abuse its discretion when it denied Carrie's motion

for attorney fees.

The $73 per month variance granted by the District Court is

reversed and the District Court's order is modified to reflect

child support at the amount of $498 per month. We hereby

incorporate the terms of the District Court's order that the

payment of the child support at the amount of $498 per month shall

be retroactive to July 19, 1995, and that the arrearage shall be

paid at a rate of $150 a month until paid in full. The District

Court is affirmed as to the denial of Carrie's request for attorney

fees.

Affirmed in part, reversed in part.

Justice
;’

August 27, 1996

CERTIFICATE OF SERVICE

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

following named:

Phillip N. Carter

Attorney At Law

111 Second Avenue S.W.

Sidney MT 59270

Peter 0. Maltese

Attorney At Law

P.O. Box 969

Sidney MT 59270-0969

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA

Deputy