NO. 96-079 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

IN RE THE MARRIAGE OF 

CAROL S. MILNER-BRINDLEY, 

Petitioner and Respondent, 

and 

RICHARD A. BRINDLEY, ,,, ;/. 

Respondent and Appellant. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Dorothy McCarter, Judge presiding, 

COUNSEL OF RECORD: 

For Appellant: 

R. Clifton Caughron, Caughron & Associates, 

Helena, Montana 

For Respondent: 

Iris A. Basta and John Grant, Jackson, Murdo, 

Grant & McFarland, Helena, Montana 

Filed: 

Submitted on Briefs: November 7, 1996 

Decided: December 10, 1996 
Chief 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 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 and West Publishing Companies. 

Richard A. Brindley (Richard) and Carol S. Milner-Brindley 

(Carol) were divorced on January 18, 1996. Richard appeals from 

the findings, conclusions, and decree of dissolution entered by the 

First Judicial District Court, Lewis and Clark County. We affirm. 

BACKGROUND 

Richard and Carol were married on February 14, 1988. Christopher Brindley (Christopher), currently seven years old, is the only 

child born of the marriage. Carol holds a Ph.D. in psychology and 

is employed by the Department of Veterans Affairs, earning $57,000 

annually. She also works as a consultant and is an officer in the 

Naval Reserve, receiving additional income of $7,561 per year. 

Richard is disabled and unemployed. He receives a VA medical 

retirement of $227 per month and Social Security benefits of $596 

per month. He also receives Christopher's monthly Social Security 

dependent allowance of $296. 

On July 26, 1994, Carol filed a petition for dissolution of 

marriage. Following mediation, the parties entered into a property 

settlement and maintenance agreement (Property Agreement), which 

provided Richard with $25,000 cash, $4800 for maintenance, and paid 

his attorney fees. The court found the Property Agreement to be 

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fair and equitable and incorporated its provisions into the 

dissolution decree. The parties also agreed on custody and 

visitation in a Memorandum of Understanding (MOU), which gives the 

parties joint custody of Christopher, with Christopher to spend 60 

percent of his time with Carol and 40 percent with Richard. The 

court found the MOU to be in the child's best interests and 

incorporated its provisions into the dissolution decree. 

The only issue presented at the dissolution proceeding was the 

determination of child support. The court found, based on the MOU, 

that Christopher will reside with Carol 60 percent of the time, or 

219 days, and with Richard 40 percent of the time, or 146 days. 

Based on the Montana Child Support Guidelines (Guidelines), the 

court also found that Richard owed $38 per month in child support, 

which it waived. Instead, it found that 60 percent of Christopher's $296 Social Security dependent allowance, or $177.60, should 

be substituted for Richard's child support obligation. The court 

based its calculations on Carol'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 be fair 

and equitable. 

Richard appeals from the District Court's findings of fact, 

conclusions of law, and decree of dissolution. He argues that the 

court erred and abused its discretion when calculating child 

support because it failed to apply the relevant administrative 

rules when determining the number of days he should be credited for 

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child support and improperly calculated Carol's federal income 

taxes and day care costs. 

Richard also argues that the court misapplied the holding of 

In Re Marriage of Durbin (1991), 251 Mont. 51, 823 P.2d 243, by 

awarding 60 percent of Christopher's Social Security dependent 

allowance to Carol as a substitute for child support. He further 

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 MOU when 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 he spends a majority of the year with Christopher (between 184-192 days), thus entitling him to a recalculation 

of child support and primary 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 a district court's award of child 

support is whether the district court abused its discretion. In Re 

Marriage of Craib (1994), 266 Mont. 483, 490, 880 P.2d 1379, 1384. 

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Rule 46.30.1535(5) (a) (i), ARM, defines a day as "when a parent has 

physical control of a child for the majority of a 24 hour calendar 

day." The arguments that Richard presents on the 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 as a "day," yet provides no case law 

or administrative rule to support his argument. 

The MOU allocates custody to Carol 60 percent of the time and 

to Richard 40 percent of the time. The provisions contained in the 

MOU are substantial credible evidence to support the District 

Court's finding that Richard has annual custody of Christopher for 

146 days and Carol has custody for 219 days. The District Court 

did not abuse its discretion when it calculated Richard's child 

support obligation based on the 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 

when it failed to adjust Carol's tax liabilities to account for the 

fact that she intends to file as an unmarried head of household and 

itemize her deductions. He supports his argument by providing pro 

forma income tax forms of Carol's taxes and suggests that the 

District Court could take judicial notice of the Tax Code and seek 

assistance from a tax professional. 

In Fronk v. Wilson (1991), 250 Mont. 291, 819 P.2d 1275, the 

wife argued that the court erred by allowing her husband a tax 

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deduction when it calculated child support. This Court found no 

errOr, holding that a district court is in the best position to 

determine whether tax returns accurately reflect disposable income. 

Fronk, 819 P.2d at 1279. 

There is no record that the pro forma tax returns submitted 

by Richard were ever admitted by the District Court. Due to the 

speculative nature of these returns and because the District Court 

is in a better 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 as an abuse of its discretion. An appellant 

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 do so. 

Richard also argues that the court erred when it credited 

Carol with year-round day care expenses because Christopher will 

not require day care when he is in Richard's custody or when Carol 

is on vacation. Richard suggests that he is willing, and should 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 

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provides, "At Carol's discretion, her residency may include time at 

a day care of her choice. . . 'I 

Rule 46.30.1525(l) (a) (i), ARM, states that child care costs 

may be based on annualized, average costs of receipted expenses. 

Carol testified, and her 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 was entitled 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 when it calculated child support. However, 

at the same time, he also claims that his assets should not be 

subject to the same calculation. When the District Court determined Richard's and Carol'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 he believed the property had been equitably divided. 

Richard's counsel agreed that it had. 

We decline to review an issue that Richard initially agreed 

upon during the dissolution proceeding and which is raised for the 

first time on appeal. In Re Marriage of Mager (1990), 241 Mont. 

78, 81, 785 P.2d 198, 200-01. We affirm the District Court's award 

of child support in all respects. 

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Richard further argues that the court erred and abused its 

discretion when it relied on Durbin, 823 P.2d at 243, and awarded 

Carol 60 percent of Christopher's Social Security dependent 

allowance as a substitute for Richard's child support obligation. 

In Durbin, the mother, primary custodian of two children, received 

Social Security benefits on behalf of her children due to their 

father's disability. We held that the Social Security benefits 

should be treated as a contribution from the father toward the 

support of his children and serve as a credit 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 was required 

to pay under the Guidelines. Durbin, 823 P.2d at 244-45. 

Likewise, Christopher's $296 allowance exceeds Richard's $38 child 

support obligation calculated under the Guidelines. The District 

Court did not err when it allocated 60 percent 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 when it 

declined to deviate from the Guidelines. He claims that the 

court's child support determination places him below the federal 

poverty level. 

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In his initial brief, Richard states that the federal poverty 

level for a single person under age 65 with one child is $10,504 

per year. Richard also admits that his total resources amount to 

$11,441 per year. By Richard's own admission, 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 he spends with Richard. Richard then urges 

this Court to modify his child support obligation by reason of the 

financial inequities between the parties. He cites In Re Marriage 

of Hall (1990), 244 Mont. 428, 798 P.2d 117, in support of his 

argument. In u, we stated that a court is not bound to apply 

the Guidelines if the court finds by clear and convincing evidence 

that so doing would have an unjust result on the parties. -, Hall 

798 P.2d at 121. 

The facts of u differ from Richard's situation. In ~, Hall 

the court considered a father's children from a subsequent marriage 

when determining his increase in child support. That is not the 

situation here. We decline 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 an unjust result 

on the parties. 

We also note that Christopher's Social Security allowance 

belongs to Christopher, not to Richard or Carol. Regardless of 

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which 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 has not shown an abuse of discretion in 

the child support calculation, we decline to award Richard 

retroactive child support or Social Security benefits. 

Richard contends that he should be awarded attorney fees and 

costs of appeal because he is without assets to pay for an appeal. 

Richard's argument is without merit. The Property Agreement signed 

by Richard and Carol states, in part: 

Each party hereto further releases and forever discharges 

the other party . and Richard'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 he might claim now or in the future on 

account of this action . . . 

The Property Agreement provided Richard with compensation for 

his attorney fees associated with this action. The District Court 

approved the attorney fee agreement. We hold that the District 

Court correctly required Richard to pay his own attorney fees. 

Affirmed, with each party to pay their own costs of appeal 

Chief Justice 
We concur: 

748 

Justices 

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