No. 93-372
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
IN RE THE MARRIAGE OF
DARCIA L. RAGER,
Petitioner and Respondent,
and
CHRISTOPHER A. RAGER,
Respondent and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas A. Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Michael V. Sinclair: Coil & Sinclair, Bozeman,
Montana
For Respondent:
Jerrold L. Nye; Nye & Meyer, Billings, Montana
Submitted on Briefs: October 21, 1993
Decided: February 11, 1 9 9 4
Filed:
CLERK OF SUPREME COURI
... .
Justice John Conway Harrison delivered the Opinion of the Court.
Appellant Christopher A. Rager (Chris) appeals the Eighteenth
Judicial District Court, Gallatin County, order compelling him to
pay $252 per month in child support and $100 per month for medical,
dental and optical expenses. We affirm.
Chris presents the following issues:
1. Did the District Court abuse its discretion in computing
Chrisf child support obligation?
2. Did the District Court err by declaring his daughter's
surname flWorman?n
3. Did the District Court abuse its discretion by ordering
Chris to pay Darcia L. Ragerfs attorney's fees and costs?
On April 18, 1991, Darcia Rager (Darcia) filed to dissolve her
marriage to Chris, alleging that one child was born of the
marriage, Karissa Lynn Jacque Worman (Karissa). Chris, in his
response, did not dispute the child's last name, but he wanted the
child's last name changed to Rager. Chris is Karissafs natural
father.
On October 30, 1992, the attorneys and District Court signed
a pretrial order, which resolved all issues except: 1) the amount
Chris would pay for child support; 2) who would pay for Karissafs
medical, optical and dental expenses; and 3) the payment of
attorney's fees by either party. The pretrial order stated that
the child's name was Karissa L. J. Rager, instead of Karissa L. J.
Woman.
The District Court ordered that discovery be completed by
January 15, 1993, and set the trial date for February 19, 1993.
Chris moved for a continuance and the District Court denied his
motion on February 8, 2993.
Chris failed to appear at the trial on February 19, 1993. He
also failed to provide Darcia with discovery before that date.
Darcia appeared at the hearing and submitted evidence of her
income. She testified that her child's name was Karissa L. J.
Worman. Chris' attorney argued that the pretrial order established
that the child's last name was Rager. The court acknowledged the
pretrial order, but determined that the child's legal name was
Woman--the name which appeared on the child's birth certificate.
Because Chris failed to appear and did not comply with
discovery, the court scheduled a second hearing for April 5, 1993.
The court indicated that Chris would pay Darcia's attorney's fees
and attorney travel expenses for the April 5th hearing.
Chris finally appeared at the April 5, 1993, hearing and gave
testimony concerning his income. Chris' girlfriend and bookkeeper,
Judy Adams (Judy), also testified about his income.
After hearing the evidence, the District Court determined that
Chris had an earning capacity of $20,000 a year, while Darcia's
earning capacity was $15,000 a year. The court completed a child
support guideline worksheet and ordered Chris to pay $252 per month
for child support and $100 per month for Karissals medical, dental
and optical expenses. The court also ordered Chris to pay Darcia's
attorney's fees and travel costs of $1,085 for the April 5th
hearing. Chris appeals.
Initially, we note that a presumption exists in favor of the
district court's child support computation and we will uphold that
computation unless the district court abuses its discretion. In re
Marriage of Kukes (l993), 258 Mont. 324, 328, 852 P.2d 655, 657.
Further, the court's factual findings will be affirmed if they are
supported by substantial evidence. In re Marriage of Fesolowitz
(1993), 258 Mont. 380, 387, 852 P.2d 658, 662.
I
Did the District Court abuse its discretion in computing
Chris1 child support obligation?
Chris maintains that the District Court inappropriately
included money which Judy had loaned to him in his income
calculation. He contends that Judy loaned his business more than
$20,000 and that amount explains the $20,000 difference between his
cash deposits of $78,000 and his business expenses of $58,000. He
argues that 3 46.30.1508 (2), A.R.M., prohibited the court from
considering the financial resources which Judy contributed to his
business when it determined his earning capacity. Chris contends
that he sustained an $8,000 loss in 1992. Thus, he concludes that
he should not pay any child support to Darcia until his income
stabilizes. The record, however, negates his argument.
At trial, Chris refused to testify about his income during the
first three months of 1993. Further, he would not testify about
his business income and expenses for 1992. Even though Chris
testified that he made $75 a day in his outfitting business, he
never indicated how many days he spent working in the business and,
thus, the court could not accurately determine his income from
outfitting.
Judy handled the bookkeeping for Chris' drywall business.
Since Chris claimed to have no personal knowledge of the financial
records, Judy was the only one who could testify as to his income
and expenses. Judy testified about the finances and she also
testified that she loaned money to Chris.
The District Court found that Chris could not provide the
court with a reasonable calculation of his income or earning
potential. In short, the District Court could not accurately
determine Chris' income from his or Judy's testimony. For that
reason the court was forced to rely on the exhibits (Chris'
financial records) to determine his income. The District Court
found that Chris1 business deposits were greater than $78,000,
while his business expenses were $58,000. The court then found
that ll[f]rom his meager records it would seem that [Chris] has
$20,000 to live on.'&
After a careful review of the record, we conclude that the
District Court's findings are supported by substantial evidence.
The court did not abuse its discretion in computing Chris' child
support obligation. We hold that the District Court properly
computed his child support obligation.
II
Did the District Court err by declaring his daughter's surname
"Worman?"
The p r e t r i a l o r d e r i n t h i s c a s e s t a t e s t h a t " [ t l h e c h i l d ' s
surname w i l l remain R a g e r . I i T h i s order w a s signed by the D i s t r i c t
Court Judge and both p a r t i e s v a t t o r n e y s . However, it was l a t e r
discovered t h a t t h e c h i l d ' s l e g a l surname was never Rager, b u t w a s ,
i n f a c t , Woman. Based on t h a t f a c t , t h e D i s t r i c t Court found,
c o n t r a r y t o t h e p r e t r i a l o r d e r , that t h e minor c h i l d ' s surname w a s
Woman.
We r e c o g n i z e that t h e p r e t r i a l o r d e r is used t o !'prevent
surprise, [narrow t h e ] i s s u e s and permit counsel t o p r e p a r e f o r
t r i a l on t h e b a s i s of t h e p r e t r i a l order." Bache v. Gilden ( 1 9 9 2 ) ,
2 5 2 Mont. 1 7 8 , 1 8 2 , 8 2 7 P.2d 817, 819. In this c a s e , t h e c h i l d ' s
name on t h e b i r t h c e r t i f i c a t e is K a r i s s a Lynn Jacque Woman. This
name is t h e c h i l d ' s l e g a l name, and remains so f o r all purposes
u n l e s s it is changed by adoption, through a s t a t u t o r y p e t i t i o n f o r
a name change, o r by o t h e r l e g a l means. See, 5 40-8-101 et seq.,
MCA; 3 27-31-101 e t seq., MCA; I n t h e Matter of t h e Change of Name
of I v e r s o n ( l 9 9 O ) , 2 4 1 Mont. 1 4 0 , 786 P.2d 1; In re ~ a r r i a g eof
Firman ( l 9 8 O ) , 187 Mont. 465, 610 P.2d 178. C h r i s never p e t i t i o n e d
for a name change nor requested such a change through other legal
means. Therefore, because t h e p r e t r i a l o r d e r c o n t a i n e d a l e g a l and
f a c t u a l e r r o r , t h e District Court was w e l l w i t h i n i t s d i s c r e t i o n t o
modify t h e p r e t r i a l o r d e r t o t h a t e x t e n t .
T h i s h o l d i n g should n o t be read a s allowing p a r t i e s t o renege
on t h e s t i p u l a t i o n s and agreements made i n a p r e t r i a l o r d e r .
However, when t h e r e is a mistake of f a c t o r l a w c o n t a i n e d i n t h e
p r e t r i a l order, t h e ~ i s t r i c t
Court must be allowed t h e d i s c r e t i o n
to correct that error.
I11
Did the District Court abuse its discretion by ordering Chris
to pay Darcia's attorney's fees and costs?
Chris argues that the District Court erred by ordering him to
pay Darcia's attorney's fees and costs. While the District Court's
findings and conclusions do not indicate the basis for awarding
attorney's fees, we conclude that two statutory provisions support
awarding attorney's fees and costs in this case.
First, 5 40-4-110, MCA, requires the district court to
consider the "financial resources of both parties" before it orders
a party to pay the reasonable costs and attorney's fees of the
other party. In re Marriage of Syljuberget (1988), 234 Mont. 178,
187, 763 P.2d 323, 328. In Syliuberset, we upheld an award of
attorney's fees when the husband's failure to cooperate caused the
wife to incur additional attorney's fees. 763 P.2d at 328. We
concluded that the district court correctly considered the
financial resources of both parties. Syliuberset, 763 P.2d at 328.
Similarly, here, Chris failed to appear at the first hearing
and caused Darcia to incur additional and unnecessary attorney's
fees. Although the District Court did not specifically find that
Chris could afford to pay Darcia's attorney's fees and costs, the
court did consider the financial resources of both Darcia and
Chris. In determining child support, the court found that Christ
earning capacity was $20,000, while Darcia's was $15,000. Thus,
the court considered the financial resources of the parties before
it ordered Chris to pay Darcials attorney's fees and costs.
Second, 5 37-61-421, MCA, permits the district court to award
attorney's fees, costs and expenses against "[aln attorney or party
. . . who . . . multiplies the proceedings in any case unreasonably
and vexatiously ... .I8 See Tigart v. Thompson (1990), 244 Mont.
156, 159-60, 796 P.2d 582, 583-85. In the present case, on October
30, 1992, the court scheduled the trial date for February 19, 1993.
On February 4, 1993, Chris moved the court to continue the trial
date. The court denied his motion on February 8, 1993, stating
that "[tlhis matter has been set [for trial] since October 30,
1992, allowing [Chris] adequate time to adjust his schedule
ac~ordingly.~
Thus, Chris knew for four and one-half months that the hearing
was scheduled for February 19, 1993, and that he was required to
attend the hearing on that date. Despite the District Court's
order denying his motion to continue, Chris failed to appear at the
February 19th hearing.
He also refused to provide the court and Darcia with his
discovery responses (financial evidence). As a result of Chris'
failure to appear and his failure to provide financial evidence,
the court could not render a permanent child support computation.
The District Court had to schedule a second hearing for April 5th.
Chris1 conduct not only showed disregard for the court's
proceedings, but his conduct was also unreasonable and vexatious.
Further, his conduct multiplied the litigation by necessitating a
second hearing.
We hold that the District Court properly considered the
parties' financial resources as required by 5 40-4-110, MCA. The
court also could have relied on 5 37-61-421, MCA, to support its
award of attorney's fees and costs. We uphold the District Court's
determination that Chris pay Darcia's attorney's fees and costs.
Af firmed.
We concur:
February 11, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Michael V. Sinclair, Esq.
Coil & Sinclair
125 West Mendenhall
Bozernan, MT 59715
Jerrold L. Nye
Nye & Meyer
3317 Thud Ave. No.
Billings, MT 59101
ED SMITH
CLERK OF THE SUPREME COURT
BY:
Depu
y
S T A Q OF MONTANA