No. 92-309
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
IN RE THE MARRIAGE OF
REBECCA GRAY WACKLER,
Petitioner and Appellant,
and
THOMAS PAUL WACKLER,
Respondent and Respondent.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Ed McLean, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Paul Neal Cooley, Skelton & Cooley,
Missoula, Montana
For Respondent:
Richard A. Reep, Reep, Spoon & Gordon,
Missoula, Montana
Submitted on Briefs: December 10, 1992
Decided: April 13, 1993
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Petitioner Rebecca Gray Wackler appeals the decision of the
Fourth Judicial District Court, Missoula County, modifying
visitation, capping child support at $39,500, and failing to award
her attorney fees.
We affirm.
Petitioner raises three issue for this appeal.
1. Did the District Court err in refusing to modify child
support?
2. Did the District Court err in modifying visitation
without providing advance notice to petitioner?
3. Did the District Court err in failing to award petitioner
attorney fees and costs?
Rebecca Gray Wackler and Thomas Paul Wackler were married on
December 16, 1990, in Missoula. Rebecca filed a petition for
dissolution on March 12, 1991. Rebecca was pregnant at the time of
filing the petition. On April 4, 1991, the parties entered into a
marital and property settlement agreement. On July 9, 1991, the
court found that the agreement was not unconscionable and
incorporated it into the decree of dissolution. The parties were
given joint custody of the child, with Rebecca designated as
principal residential custodian. Thomas was to have custody of the
child 25 percent of the time, with visitation to be essentially
arranged by the parties. Thomas was ordered to pay $400 per month
in child support until January 1992 when the parties agreed to
2
exchange information regarding their income for the purpose of
applying the Uniform Child Support Guidelines.
Thomas works as a commissioned salesman and currently earns
$77,000 a year. Rebecca is employed part-time as a hair stylist
and has a yearly income of $7,000.
The record demonstrates that the parties have had difficulty
implementing the dissolution decree. Thomas filed a motion in
September 1991 requesting a clarification of visitation and day
care expenses. Following a hearing, the court issued an order on
October 25, 1991, establishing a visitation schedule and day care
payments.
The parties failed to agree on a child support amount, based
on 1991 incomes, by January 15, 1992, and on January 27, 1992,
Rebecca filed a motion regarding child support. A hearing was held
on February 19, 1992, and on April 20, 1992, the District Court
issued its order finding that $400 a month in child support was
sufficient and ordering Thomas to provide for post-high school
education. In addition, the court clarified Thomas's visitation
rights. Rebecca appeals the decision.
I.
Did the District Court err in refusing to modify child
support?
When this Court reviews child support awards, a presumption
exists in favor of the district court's determination, and this
Court will reverse the district court only if it has abused its
3
discretion. In re Marriage of Sacry (Mont. 1992), 833 P.2d 1035,
1038, 49 St. Rep. 452, 453. Whenever the court issues or modifies
an order relating to child support, the district court is required
to determine the child support obligation on the basis of the
factors set out in 5 40-4-204(l) and (2), MCA, and the Uniform
Child Support Guidelines adopted by the Department of Social and
Rehabilitation Services. Section 40-4-204(3), MCA.
In its order, the District Court found that Thomas's yearly
gross income was approximately $77,000. He is currently paying
$400 a month in child support, $260 a month in day care, and $25 a
month in insurance costs. Rebecca requested that the court
increase the monthly child support to $557. The court found that
$400 a month in child support was sufficient. In addition, the
court ordered Thomas to provide for the child's post-high school
education. The court based its decision on the belief that child
support should not be calculated on income in excess of $39,500 and
that the reasons for capping support at this level were the
specific statements contained within the Uniform Child Support
Guidelines.
The District Court's order was issued prior to our decision in
Sacry where we concluded that the mandatory provisions of the
guidelines do not apply to incomes greater than $39,500. Sacry,
833 P.2d at 1038. The $39,500 limitation does not place a cap on
the amount of child support to be awarded based on incomes greater
than $39,500. For incomes exceeding $39,500, the first $39,500
4
should be "first applied in the appropriate column and line which
shows the number and age of the child to arrive at a minimum
support amount.If Sacrv, 833 P.2d at 1038 (quoting 46.30.1543(2),
ARM). Any parental income that exceeds the $39,500 may be used to
supplement a minimum support amount. The amount of the supplement
is to be determined on a case-by-case basis utilizing the factors
set out in § 40-4-204 (1) and (2), MCA. The district court is given
broad discretion in awarding supplemental child support based on
parental incomes that exceed $39,500. Sacrv, 833 P.2d at 1038.
Thus, the guidelines do not establish a cap on child support on
incomes exceeding $39,500, but instead provide the district court
with greater flexibility in setting child support payments when
parental income exceeds $39,500.
Even though the District Court erred in ruling that there was
a cap on the amount of child support payments because Thomas earned
more than $39,500, the court's decision does not amount to
reversible error. After applying the first $39,500 of Thomas's
income, he is currently paying $400 a month in child support which
is within the limits of the child support guidelines. Thomas is
also responsible for $260 in monthly day care costs, as well as $25
per month in health insurance. In addition, Thomas is required to
make arrangements to pay for any post-high school education that
the child may need. We hold that the District Court did not err in
refusing to modify child support.
11.
Did the District Court err in modifying visitation without
providing advance notice to petitioner?
During the February 19, 1992, hearing, the District Court
granted Thomas's oral motion to modify the visitation schedule over
Rebecca's objection. The court modified visitation by giving
Thomas visitation on Thursday evenings instead of Monday evenings,
and clarified summer visitation, as well as allowing additional
visits upon request when Thomas's relatives visit from out of town.
Rebecca contends that 5 40-4-208, MCA, requires that she be given
notice prior to modification of visitation rights.
Section 40-4-208(1), MCA, requires notice be given for a
motion to modify a decree relating to child support and
maintenance. Section 40-4-217(3), MCA, grants the district court
authority to modify an order granting or denying visitation
"whenever modification would serve the best interest of the child
. . . ." In this instance, Rebecca was not prejudiced by the lack
of notice because the District Court only clarified visitation
rights as a result of some apparent confusion relating to the
previous visitation schedule. Rebecca's counsel was able to
discuss these matters and properly raise Rebecca's concerns as to
Thomas's request to extend visitation rights, which was denied. We
hold that the District Court did not err in its clarification of
Thomas's visitation rights.
111.
Did the District Court err in failing to award petitioner
attorney fees and costs?
The marital agreement entered into by the parties provided an
award of attorney fees to the prevailing party should an action be
initiated to enforce or modify the agreement. During the hearing,
both parties requested attorney fees. The District Court concluded
that neither side substantially prevailed in their requests and
denied attorney fees pursuant to 5 40-4-110, MCA.
The District Court has discretion to grant attorney fees after
considering the financial resources of the parties. Section
40-4-110, MCA. The award of attorney fees is permissive not
mandatory. Section 40-4-110, MCA. We will not overturn the
court's decision denying attorney fees absent an abuse of
discretion. In re Marriage of Manus (1987), 225 Mont. 457, 733
P.2d 1275. The District Court stated it had considered the
financial resources of the parties and that neither side
substantially prevailed in the case. We hold that the District
Court did not err in failing to award attorney fees.
We affirm.
We concur:
Chief Justic
Justices
Justice Fred J. Weber dissents as follows:
I dissent from the conclusion on Issue I in which the District
Court refused to modify the child support. I agree with the legal
standard to be applied and with the standard that this Court will
reverse the District Court only if it has abused its discretion.
The majority referred to and pointed out that the $39,500
limitation does not place a cap on the amount of child support,
because the amount above that figure may be used to supplement a
minimum support amount, and thereby provides greater flexibility.
The majority further concluded that even though the District Court
erred in ruling there was a cap on child support payments above
$39,500, the court's decision did not constitute reversible error.
I do not find any factual basis for that conclusion.
In order that there may be no confusion, I quote from the
District Court's order on this aspect:
The Court noted that child support should not be
calculated on income in excess of the $39,500.00 cap set
forth in the Uniform Child Support Guidelines. The
Court's reasons for capping support at this level are the
specific statements contained within the Uniform Child
Support Guidelines. The opinion of the Court that child
support at $400.00 per month for this child is sufficient
support and the Court has imposed a duty upon the
Respondent to provide for post-high school education.
As is apparent, the District Court incorrectly concluded as a
matter of law that child support should not be calculated on income
in excess of $39,500. As a result, the opinion in the paragraph
that the child support of $400 per month is sufficient is certainly
not conclusive on this Court.
I also quote from the controlling Guideline which is set forth
When incomes exceed this amount the first $39,500.00
should first be applied in the appropriate column and
line which shows the number and age of the child to
arrive at a minimum support amount. The minimum s u ~ ~ o r t
amount should be ~ ~ ~ R l e m e n t e d of the remaininq
out
parental income. The amount of the suuulement must be
determined on a case-bv-case basis. (Emphasis supplied.)
In re the Marriage of Sacry (1992), 253 Mont. 378, 383, 833 P.2d
1034, 1038, (quoting 46.30.1543 (2), ARM). (Note that
46.30.1543(2), ARM, as quoted was in effect from July 13, 1990 to
July 31, 1992, and has since been superceded). As pointed out in
Sacrv, the court is given broad discretion. However, in the
exercise of that discretion, the regulation requires that the court
start with the underlying premise that "the minimum support amount
should be supplemented out of the remaining parental income.18
46.30.1543 (2), ARM (1990). As a result of the District Court's
misconstruction, it incorrectly concluded that it did not have the
power to so supplement. At that point, as a matter of law, I
conclude that the District Court was incorrect in applying the
foregoing limitation.
I would reverse the District Court on this issue and remand in
order that the court could properly redetermine the amount of child
support, specifically taking into consideration the income above
Justice Karla M. Gray joins in t
April 13, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Paul Neal Cooley
Skelton & Cuoley
101 E. Main
Missoula, MT 59802
Richard Reep
Reep, Spoon & Gordon
P.O. Box 9019
Missoula, MT 59807
ED SMITH
CLERK OF THE SUPREh4E COURT
STATE OF MONTANA