NO. 94-046
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
IN RE THE MARRIAGE OF
TERRY L. HILL,
Joint-Petitioner and Appellant,
and
RONALD S. HILL,
Joint-Petitioner and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Russell K. Fillner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Don M. Hayes, Herndon, Hartman, Sweeney
& Halverson, Billings, Montana
For Respondent:
James Robert Graves, Oliver, Graves
& Toennis, Billings, Montana
Submitted on Briefs: April 7, 1994
Decided: May 3, 1994
Justice Terry N. Trieweiler delivered the opinion of the Court.
Appellant Terry L. Hill petitioned the District Court for the
Thirteenth Judicial District in Yellowstone County for a
modification of the child custody and support provisions of the
parties' May 22, 1990, settlement agreement and decree of
dissolution. Prior to the hearing, the parties stipulated to
future child custody arrangements and support obligations. The
District Court approved the oral stipulation of the parties with
regard to future child support, but refused to award Terry child
support retroactive to the date of the petition for modification.
Terry appeals. We affirm in part, reverse in part, and remand for
further proceedings.
The following issues are raised on appeal:
1. Did the District Court abuse its discretion when it
ordered child support in accordance with the oral stipulation
entered into by the parties on August 30, 1993?
2. Did the District Court abuse its discretion when it
refused to award child support retroactive to the date the petition
for modification was filed?
3. Should the District Court have awarded attorney fees to
Terry pursuant to the parties' settlement agreement and dissolution
decree?
The parties' marriage was dissolved on May 22, 1990. The
final decree incorporated a child custody and property settlement
agreement entered into by the parties on April 16, 1990. At the
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time of dissolution, Terry and Ronald had two minor children,
Brendon, age 10, and Coulter, age 8.
The original decree provided for joint custody, made Terry
primary residential custodian, and required Ronald to pay child
support in the amount of $200 per child per month. After the
dissolution, the residential status of the children changed on
several occasions. Thereafter, the parties stipulated to a
modification of the custody and support provisions of the original
agreement. The stipulation provided that Ronald would be the
primary physical custodian of both children and would receive $33
per child per month for support from Terry. The stipulation also
provided that Ronald would pay to Terry the sum of $1800 as "full
and final payment of all child support owed to her through October
of 1992." That stipulation was adopted by order of the court dated
November 12, 1992.
Circumstances changed again, and both minor children returned
to live with Terry. On January 29, 1993, Terry filed a petition
for modification of custody in which she requested that Ronald be
ordered to pay child support in the amount set forth in the
original decree or in the amount necessary to comply with the child
support guidelines. Although the parties attempted to reach an
agreement subsequent to the date on which the petition was filed,
they were unable to resolve their differences regarding child
support obligations. Therefore, the matter was set for hearing on
August 30, 1993.
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Brendon and Coulter continued to reside with Terry until
June 1993, and then began to split their time between the two
residences. They continued this arrangement throughout the summer
months. No child support payments were made by either party
subsequent to the date of the petition.
The parties eventually agreed on a custody arrangement for
their sons which left two issues to be resolved at the hearing:
(1) future support obligations, and (2) whether Terry was entitled
to support retroactive to the date the petition was filed. Prior
to the hearing, each party submitted child support calculation
worksheets utilizing real and imputed income figures for the
court's determination of the parties' appropriate child support
obligations.
On the date of the scheduled hearing, following a conference
with the District Court Judge, the parties agreed to base child
support calculations on their average incomes for the previous
three years. Utilizing calculations that Terry's attorney had
prepared based on three-year income averages, the parties, in open
court, accepted those calculations and stipulated to the amount of
child support which resulted from those calculations. Ronald's
counsel was instructed to reduce the stipulation to writing
following the hearing. The court then heard testimony on the issue
of retroactive support.
Subsequent to the hearing, Terry refused to sign the
stipulation prepared by Ronald's counsel, based on her contention
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that the calculations originally prepared by her attorney were
incorrect. On September 23, 1993, Terry submitted amended
calculations which she requested the court to use in its
determination of child support obligations. She alleged that the
initial support calculations were neither in accordance with the
child support guidelines nor the stipulation of the parties because
an erroneous three-year income average for Ronald was used.
The District Court issued its findings of fact and conclusions
of law on November 10, 1993, and issued an amended order on
November 15, 1993. The court rejected the recalculations of child
support that had been requested by Terry, and adopted the figures
agreed upon prior to the hearing. In pertinent part, the court
stated the following in its amended order:
On August 30th, 1993, the above-named parties, with
counsel, appeared before this court, whereupon, the
parties entered into a stipulation for future child
support. Counsel for Ronald S. Hill was to reduce the
stipulation to writing, which he did, and forwarded the
proposed stipulation and order to counsel for Terry L.
Hill on September 1, 1993. After some delay, counsel for
Terry advised that she did not agree with the
stipulation. . . . It appeared that there was a
disagreement with the stipulation and order as prepared
by counsel for Ronald S. Hill. Accordingly, the court
obtained a transcript of the stipulation by the parties
and notes that the stipulation as prepared by counsel for
Ronald S. Hill conforms to the stipulation made on the
record. The court also notes that each party was asked
by the court if the stipulation was agreeable with them;
each answered in the affirmative. The court then advised
the parties that, "it is a done deal as of now."
Accordingly, said stipulation is incorporated in this
order as follows:
. . . .
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4. When Ronald S. Hill (herein Ronald) has residential
custody of one child, and Terry L. [Hill] Whitten (herein
Terry) has residential custody of one child, Ronald shall
pay Terry the sum of $100 per month in child support.
5. When Terry has residential custody of both children,
Ronald shall pay Terry the sum of $400 per month in child
support.
6. When Ronald has residential custody of both
children, Terry shall pay Ronald the sum of $146 per
month is child support.
Further, the court denied Terry's request for child support
retroactive to the date notice was given of the motion to modify.
In its order, the court took into consideration the allegations
raised by Ronald that even though he had paid $1800 previously by
stipulation, he had not actually owed that amount of past child
support. However, during the trial when evidence was adduced
concerning that earlier stipulation, the court had stated that any
dispute about the previous amount of past due child support had
been resolved by stipulation, was resjudicata, and would not be
considered by the court.
Terry filed combined motions requesting the court to amend its
findings and to grant a new trial. The bases for these motions
were that the court's determination of child support was erroneous
and was not in accordance with the child support guidelines, and
the court's denial of retroactive child support was based upon
evidence which it had specifically rejected during the hearing. By
order dated December 16, 1993, Terry's motions were denied. From
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the court's findings, conclusions and order, and the denial of her
post-trial motions, Terry appeals.
ISSUE 1
Did the District Court abuse its discretion when it ordered
child support in accordance with the oral stipulation entered into
by the parties on August 30, 1993?
The standard of review for modification of a child support
award is whether the district court abused its discretion. In re
Mam’age0fD.F.D.andD.G.D. (1993), 261 Mont. 186, 203, 862 P.2d 368,
378; ZnreMam’ageofpUrkett (1986), 222 Mont. 225, 229, 721 P.2d 349,
351. Whenever a court modifies an order concerning child support,
the court must apply the uniform child support guidelines adopted
by the Department of Social and Rehabilitation Services. Section
40-4-204(3)(a), MCA (1991).
In this instance, during a prehearing conference with the
presiding judge, the parties stipulated to respective child support
obligations which were calculated in accordance with the child
support guidelines using an agreed upon three-year income average.
However, when this stipulation was reduced to writing, Terry
refused to sign the agreement, alleging that the amounts stipulated
to were derived from an erroneous income average. The District
Court rejected Terry's request to amend the calculations and
ordered child support in accordance with the oral stipulation.
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Terry contends that the stipulation was based on an incorrect
three-year income average, and therefore, the court-ordered support
amounts do not comport with the guidelines. In addition to the
statutory mandate which requires a court to apply the guidelines,
she notes that Rule 46.30.1507(5), ARM, does not allow a court to
base a determination of child support on an oral stipulation which
varies from the guidelines.
However, we conclude that Terry I s reliance on Rule
46.30.1507(5), ARM, is misplaced. The rule requires that if the
parties stipulate or agree to vary from the guidelines, the
stipulation, among other requirements, must be in writing and
signed by both parties before a court can accept the stipulation.
Here, the parties' stipulation was not an agreement to vary from
the guidelines. Rather, the parties stipulated to use three-year
income averages which were computed by Terry to arrive at the
amount of child support due under the guidelines. Terry makes no
argument that if we assume those figures to be correct, the
guidelines have not been correctly applied. We conclude that the
stipulation involved in this case is not the type of stipulation
encompassed by the administrative rule upon which Terry relies.
Therefore, Rule 46.30.1507(5), ARM, is inapplicable in this
instance.
The issue on review is whether the court properly determined
child support obligations on the basis of the factors set out in
8
§ 40-4-204, MCA (1991), and in an amount consistent with the
uniform child support guidelines. In re Marriage of Wader (1993) , 258
Mont. 12, 850 P.2d 963. Here, the parties stipulated to facts
which were then relied on to establish the appropriate amounts of
child support according to the guidelines. Once the parties
entered into this stipulation, the court refused to allow Terry to
unilaterally change facts upon which the stipulation was based.
This Court has previously held that a court can rely on the
terms of a stipulation provided the stipulation is not contrary to
law, court rule, or public policy. In re Marriage of Sullivan ( 19 9 3 ) , 2 5 8
Mont. 531, 539, 853 P.2d 1194, 1199; School Dzlstrict No. 4 v. Colburg
(1976), 169 Mont. 368, 372, 547 P.2d 84, 86-87. Although we made
clear in Jensenv.Jensen (1981), 192 Mont. 547, 629 P.2d 765, that a
court is not bound by an agreement concerning child support where
the welfare of the children is concerned, there is no evidence in
this situation that the parties' stipulation regarding child
support is contrary to law, court rule, or public policy, or that
enforcement of the stipulation would endanger the children's
welfare. The stipulation merely served the purpose of eliminating
certain proof that would otherwise have been necessary in order to
calculate each parent's support obligations.
Therefore, we conclude that the District Court did not err by
accepting the parties' factual stipulation. Nor did it err when it
held Terry to the stipulation by rejecting her request to
9
unilaterally alter this figure once an agreement in good faith had
been reached and the hearing had proceeded in reliance on that
agreement.
On this basis, we hold that the court did not abuse its
discretion when it ordered child support in amounts consistent with
the stipulation made by the parties on August 30, 1993.
ISSUE 2
Did the District Court abuse its discretion when it refused
to award child support retroactive to the date the petition for
modification was filed?
Terry contends that she had custody of one or both children
from January 1993 until the time her petition for modification was
granted. Although 5 40-4-208, #CA (1991), allows for modification
of support for installments accruing subsequent to notice of a
motion for modification of support, the court did not order
Ronald's support obligation to commence until October 1, 1993, even
though Terry was the primary physical custodian during this time.
She contends that the basis for this decision was the court's
consideration of Ronald's allegations that even though he had
previously paid $1800 of "past due child support" by stipulation,
he had not actually owed that amount. Terry asserts that the court
abused its discretion when it took into consideration these
allegations which had already been settled by stipulation.
Whether child support is awarded retroactively to the date of
notice of a motion for modification is clearly within the
10
discretion of the district court. In re Maniage of FronklWZson (1991) ,
250 Mont. 291, 297, 819 P.2d 1275, 1279. However, in this case,
the court based its decision to deny retroactive support at least
in part on Ronald's contention that he did not really owe the
amount he had paid pursuant to the prior stipulation.
During the hearing on this matter, Ronald reasoned that since
he had already paid support he did not owe, he should not have to
pay retroactive support now. In support of this claim, Ronald
introduced evidence regarding this 1992 stipulation. However,
Terry objected to the introduction of matters resolved by the 1992
stipulation, and the court agreed that the compromised settlement
of 1992 was a settled matter and was irrelevant. The presiding
judge stated that it was not appropriate to interfere with the
earlier settlement, "nor am I going to consider the compromised
settlement that was entered into, because these are done, as you
said yourself, a done deal."
We agree that issues involved in the earlier settlement which
were resolved by stipulation are not relevant to the question of
whether Terry was entitled to child support retroactive to the date
notice was given of the petition for modification. Prior
circumstances resolved by the 1992 stipulation should not have
formed the basis for the court's denial of Terry's request for
retroactive support. We conclude that to deny support on the basis
of the prior stipulation was an abuse of discretion.
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If Terry is entitled to support during the times that one or
both of the children reside with her, then there is no reason to
distinguish between the support necessary after the court's order
and the children's needs from the time of Terry's petition until
the order was entered. Child support is for the benefit of the
children and the obligation exists regardless of disagreements
occurring between the parents. InreMam’ageofRyan (1989), 239 Mont.
100, 778 P.2d 1389.
This matter is remanded for a determination of the periods
during which Terry is entitled to support, based on the custodial
arrangements that existed at the various times subsequent to her
petition.
ISSUE 3
Should the District Court have awarded attorney fees to
Terry pursuant to the parties' settlement agreement and dissolution
decree?
The parties' separation agreement, which was incorporated into
the original dissolution decree, provided that "[slhould any future
action be commenced to enforce, modify or interpret any provision
of this Agreement, the Court shall award reasonable attorneys fees
for the successful party as a cost of suit." On the basis of this
provision, Terry contends she is entitled to reasonable attorney
fees in this action. She contends that the court erred when it did
not address this issue in any of its orders.
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A review of the record reveals that Terry did not request
attorney fees as a form of relief in her original petition for
modification. The issue of attorney fees was not mentioned until
a brief in support of the petition was filed seven months later.
We conclude that an argument raised for the first time in a
supporting brief does not equate with raising an issue in the
pleadings and serving notice to the court and opposing parties of
the relief requested. When the issue of attorney fees is omitted
from the pleadings, and no evidence is presented on that issue at
trial, the issue is outside the purview of the District Court.
Naftco Leasing v. Finalco (1992) I 254 Mont. 89, 835 P.2d 728.
Accordingly, the court did not err when it did not address this
issue, and this Court will not consider a claim raised for the
first time after the trial, against which the opposing party had no
opportunity to defend.
The court's adoption of the parties' stipulation regarding
respective child support obligations is affirmed. The District
Court's denial of support retroactive to the date notice was given
of the motion for modification of the decree is reversed and
remanded for further proceedings consistent with this opinion.
Ju tice
13
We concur:
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May 3, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid,
to the following named:
Don M. Hayes
HERNDON, HARTMAN, SWEENEY & HALVERSON, P.C.
P. 0. Box 80270
Billings, MT 59108-0270
James Robert Graves
OLIVER, GRAVES & TOENNIS, P.C.
P. 0. Box 7227
Billings, MT 59103-7227
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA