NO. 96-079 INTHESUPREMECOURTOFTHESTATEOFMONTANA 1996

IN RETHEMARRIAGEOF CAROLS. MILNER-BRINDLEY,

Petitioner and Respondent, and RICHARDA. BRINDLEY, ,,, ;/.

Respondent andAppellant.

APPEAL FROM: District Court of the First Judicial District,

In and for the County of Lewis andClark, TheHonorable Dorothy McCarter, Judge presiding,

COUNSELOFRECORD:

For Appellant: R. Clifton Caughron, Caughron &Associates, Helena, Montana For Respondent: Iris A. Basta andJohn Grant, Jackson, Murdo, Grant &McFarland, Helena, Montana

Filed: Submitted onBriefs: November 7, 1996 Decided: December 10, 1996Chief Justice J. A. Turnage 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 asprecedent andshall bepublished byits filing asapublic document with the Clerk of the Supreme Court andbyareport of its result to State Reporter Publishing andWest Publishing Companies. Richard A. Brindley (Richard) and Carol S. Milner-Brindley (Carol) were divorced onJanuary 18, 1996. Richard appeals from the findings, conclusions, anddecree of dissolution entered bythe First Judicial District Court, Lewis andClark County. Weaffirm. BACKGROUND Richard andCarol were married onFebruary 14, 1988. Christopher Brindley (Christopher), currently seven years old, is the only child born of the marriage. Carol holds aPh.D. in psychology and is employed bythe Department of Veterans Affairs, earning $57,000 annually. Shealso works asaconsultant andis anofficer in the Naval Reserve, receiving additional income of $7,561 per year. Richard is disabled and unemployed. He receives aVA medical retirement of $227 per month and Social Security benefits of $596 per month. Healso receives Christopher's monthly Social Security dependent allowance of $296. OnJuly 26, 1994, Carol filed apetition for dissolution of marriage. Following mediation, the parties entered into aproperty settlement and maintenance agreement (Property Agreement), which provided Richard with $25,000 cash, $4800 for maintenance, andpaid his attorney fees. The court found the Property Agreement to be
2fair and equitable and incorporated its provisions into the

dissolution decree. The parties also agreed on custody and visitation in aMemorandum of Understanding (MOU), which gives the parties joint custody of Christopher, with Christopher to spend 60 percent of his time with Carol and 40percent with Richard. The court found the MOUto be in the child's best interests and incorporated its provisions into the dissolution decree. Theonly issue presented atthe dissolution proceeding wasthe determination of child support. Thecourt found, based onthe MOU, that Christopher will reside with Carol 60percent of the time, or 219 days, and with Richard 40percent of the time, or 146 days. Based on the Montana Child Support Guidelines (Guidelines), the court also found that Richard owed$38per month in child support, which it waived. Instead, it found that 60percent of Christopher's $296Social Security dependent allowance, or$177.60, should besubstituted for Richard's child support obligation. The court based its calculations onCarol's annual gross income of $64,561 and Richard's income of $10,020. The court did not consider the parties' assets because it found the property division to befair andequitable. Richard appeals from the District Court's findings of fact, conclusions of law, anddecree of dissolution. Heargues that the court erred and abused its discretion when calculating child support because it failed to apply the relevant administrative rules whendetermining the number of days heshould becredited for

3child support and improperly calculated Carol's federal income

taxes andday care costs. Richard also argues that the court misapplied the holding of In ReMarriage of Durbin (1991), 251 Mont. 51, 823 P.2d 243, by awarding 60 percent of Christopher's Social Security dependent allowance to Carol asasubstitute for child support. Hefurther claims that the court's child support calculation is unconscionable because it fails to maintain Christopher's standard of living and nearly lowers Richard's income below the federal poverty index. Richard also requests attorney fees, costs of appeal, and a retroactive award of child support and Social Security benefits. Richard claims that the District Court failed to consider the visitation schedule contained in the MOUwhen it calculated the number of days that he and Carol should be credited for child support. Richard argues that the court should have determined the number of hours that he and Carol spend daily with Christopher. Richard claims that hespends amajority of the year with Christopher (between 184-192 days), thus entitling him to arecalculation of child support andprimary custodian status. Carol argues that the court took judicial notice of the 60-40 percent custody arrangement provided for in the MOU,which contains all of the details necessary to calculate the number of days of custody for child support. The standard of review of adistrict court's award of child support is whether the district court abused its discretion. In Re Marriage of Craib (1994), 266Mont. 483, 490, 880P.2d 1379, 1384.

4Rule 46.30.1535(5) (a)(i), ARM,defines adayas "when aparent has

physical control of achild for the majority of a24hour calendar day." The arguments that Richard presents onthe number of hours that he will spend with Christopher are speculative, and his proposed definition of "day" differs from the definition contained in the Guidelines. Richard attempts to count the time that Christopher spends in school asa"day," yet provides nocase law
or administrative rule to support his argument. TheMOUallocates custody to Carol 60percent of the time and to Richard 40percent of the time. Theprovisions contained in the MOUare substantial credible evidence to support the District Court's finding that Richard has annual custody of Christopher for 146days and Carol has custody for 219 days. The District Court did not abuse its discretion when it calculated Richard's child support obligation based onthe 60-40 percent custody arrangement contained in the MOU. Richard claims, without citing legal authority, that the District Court abused its discretion in calculating child support whenit failed to adjust Carol's tax liabilities to account for the fact that sheintends to file asanunmarried head of household and itemize her deductions. Hesupports his argument byproviding pro forma income tax forms of Carol's taxes and suggests that the District Court could take judicial notice of the Tax Codeand seek assistance from atax professional. In Fronk v. Wilson (1991), 250Mont. 291, 819 P.2d 1275, the wife argued that the court erred by allowing her husband atax
5deduction when it calculated child support. This Court found no
errOr, holding that adistrict court is in the best position to determine whether tax returns accurately reflect disposable income. Fronk, 819 P.2d at 1279. There is norecord that the pro forma tax returns submitted by Richard were ever admitted by the District Court. Dueto the speculative nature of these returns andbecause the District Court is in abetter position to determine Carol's disposable income, we conclude that the court did not abuse its discretion when it calculated Carol's income taxes to determine her child support obligations. We also note that Richard provides no legal authority interpreting the Guidelines which would render the District Court's application of the law asanabuse of its discretion. Anappellant carries the burden of establishing error by the trial court. Moreover, Rule 23, M.R.App.P., requires the appellant to cite to authority which supports the position being advanced on appeal. Richard repeatedly has failed to doso. Richard also argues that the court erred when it credited Carol with year-round day care expenses because Christopher will not require day care whenheis in Richard's custody or whenCarol is onvacation. Richard suggests that heis willing, andshould be able, to provide free day care to Christopher rather than being required to pay for it as a portion of his child support. Richard's arguments ignore the express provisions of the MOU, agreed upon by both parties with advice from counsel, which
6provides, "At Carol's discretion, her residency mayinclude time at

aday care of her choice.

. .'I Rule 46.30.1525(l) (a)(i), ARM, states that child care costs maybebased onannualized, average costs of receipted expenses. Carol testified, andher financial affidavit indicated, that her day care costs equal $250 per month. There was substantial evidence presented at the dissolution proceeding to support the court's finding that Carol wasentitled to a$210 credit for day
care expenses. The court did not abuse its discretion when it credited Carol for day care expenses. Richard argues the court failed to consider the value of nonincome-producing assets whenit calculated child support. However, at the same time, he also claims that his assets should not be subject to the same calculation. Whenthe District Court determined Richard's andCarol's child support obligations according to the Guidelines, it specifically found that it had not considered the net value of the parties' assets because it found the marital property division to be fair and equitable. The court asked Richard if hebelieved the property had been equitably divided. Richard's counsel agreed that it had. Wedecline to review anissue that Richard initially agreed upon during the dissolution proceeding andwhich is raised for the first time onappeal. In ReMarriage of Mager (1990), 241Mont. 78, 81, 785P.2d 198, 200-01. Weaffirm the District Court's award of child support in all respects.

7Richard further argues that the court erred and abused its

discretion when it relied onDurbin, 823 P.2d at 243, and awarded Carol 60 percent of Christopher's Social Security dependent allowance as asubstitute for Richard's child support obligation. InDurbin, the mother, primary custodian of two children, received Social Security benefits on behalf of her children due to their father's disability. Weheld that the Social Security benefits should be treated as acontribution from the father toward the support of his children and serve asacredit toward the father's child support obligation. Durbin, 823 P.2d at 247. Richard argues that Durbin does not apply to this case because he, not Carol, receives Christopher's Social Security benefits which enable him to provide basic living needs for his son. A closer analysis of Durbin proves Richard's argument incorrect. In Durbin, the amount of Social Security benefits received by the mother exceeded the amount of child support the father wasrequired to pay under the Guidelines. Durbin, 823 P.2d at 244-45. Likewise, Christopher's $296 allowance exceeds Richard's $38child support obligation calculated under the Guidelines. The District Court did not err when it allocated 60percent of Christopher's $296 Social Security allowance to Carol. Richard also claims that the court erred when it failed to recognize the disparity in the parties' financial resources whenit declined to deviate from the Guidelines. He claims that the court's child support determination places him below the federal poverty level.
8In his initial brief, Richard states that the federal poverty

level for asingle person under age 65with one child is $10,504 per year. Richard also admits that his total resources amount to $11,441 per year. ByRichard's ownadmission, the District Court's child support calculations do not place him below the federal poverty level. Richard also argues that the court's child support calculations will reduce Christopher's standard of living to that of poverty during the time hespends with Richard. Richard then urges this Court to modify his child support obligation byreason of the financial inequities between the parties. Hecites In ReMarriage of Hall (1990), 244 Mont. 428, 798 P.2d 117, in support of his argument. In u, westated that acourt is not bound to apply the Guidelines if the court finds byclear andconvincing evidence that sodoing would have anunjust result on the parties. -, Hall 798 P.2d at 121. The facts of u differ from Richard's situation. In Hall ~, the court considered afather's children from asubsequent marriage when determining his increase in child support. That is not the situation here. Wedecline to extend the holding of u to Richard's situation. The District Court's substitution of a percentage of Christopher's Social Security benefits in lieu of Richard's child support obligation will not have anunjust result
onthe parties. Wealso note that Christopher's Social Security allowance belongs to Christopher, not to Richard or Carol. Regardless of
9which parent receives the allowance, its proceeds benefit Christopher. The District Court's 60-40 percent distribution of the allowance will not affect Christopher's standard of living. Richard also requests an award of attorney fees, costs of appeal, and a retroactive award of child support and Social Security. Because Richard hasnot shown anabuse of discretion in the child support calculation, we decline to award Richard retroactive child support or Social Security benefits. Richard contends that heshould beawarded attorney fees and costs of appeal because heis without assets to pay for anappeal. Richard's argument is without merit. TheProperty Agreement signed by Richard andCarol states, in part: Eachparty hereto further releases andforever discharges the other party

.andRichard's attorney, R.Clifton Caughron, for himself, hereby specifically and fully releases and forever discharges Carol

. . .for payment of any and all attorney's fees which the named attorney claimed or which hemight claim nowor in the future on account of this action

. . . TheProperty Agreement provided Richard with compensation for his attorney fees associated with this action. TheDistrict Court approved the attorney fee agreement. Wehold that the District Court correctly required Richard to pay his ownattorney fees. Affirmed, with each party to pay their owncosts of appeal

Chief JusticeWe concur:

748

Justices

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