NO. 95-047
IN THE SUPREMECOURT OF THE STATE OF MONTANA
1995
IN RE THE MARRIAGE OF
DAVID L. SCHNELL,
Petitioner and Appellant,
and
TWYLA L. SCHNELL,
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Larry W. Moran, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Lynda S. Weaver, Morrow, Sedivy & Bennett,
Bozeman, Montana
For Respondent:
Marcelle C. Quist and Kendra K. Anderson,
Quist, Bowen & Anderson, Bozeman, Montana
Submitted on Briefs: July 27, 1995
Decided: October 24, 1995
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
The appellant, David L. Schnell, filed a petition in the
District Court for the Eighteenth Judicial District in Gallatin
County for dissolution of his marriage to the respondent, Twyla L.
Schnell. Following a hearing, the District Court entered its
decree in which it provided for joint custody of the couple's only
child, child support, and division of the marital estate. The
District Court also ordered that David pay Twyla's attorney fees.
David appeals from the District Court's decree. We affirm in part
and reverse in part.
The issues on appeal are:
1. Did the District Court err when it failed to award child
support based on the Child Support Guidelines, or to specify why it
declined to do so?
2. Did the District Court err when it ordered that the tax
deduction for the couple's daughter be shared without regard to her
place of residence or the financial implications to the parties?
3. Did the District Court err when it based its division of
the couple's property on an oral stipulation?
4. Did the District Court err when it awarded Twyla attorney
fees?
STATEMENT OF FACTS
David and Twyla were married 'on June 25, 1978, in Columbia,
Missouri. During the course of their marriage, they had one child,
Deanna. Prior to the marriage, David had purchased land in
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Missouri upon which he and Twyla built a home during the marriage.
Twyla and David also purchased a vacant lot in Missouri during the
marriage.
David is employed as the maintenance director at the Mount
Ellis Academy boarding school (MEA) in Bozeman where he earns $2503
per month. MEA allows a substantial reduction in Deanna's tuition,
and provides health insurance, so long as David is entitled to a
tax exemption for Deanna.
Twyla is employed as a full-time registered nurse and earns
$2462.40 per month.
Pursuant to a stipulation made in open court at a hearing to
consider temporary relief, the court awarded the Missouri home to
Tvla, but ordered that she pay one-half its appraised value
($25,000) to David. The court awarded David and Twyla joint
custody of Deanna, but appears to have assumed she would attend
school in Montana while either living with her father or in the
dormitory, and that she would spend summers with her mother, who
remained in Missouri.
The tax deduction attributable to Deanna's dependency was
awarded to Twyla in odd-numbered years, and to David in
even-numbered years. The District Court ordered Twyla to pay as
child support, all of Deanna's current school expenses, the
expenses related to the care of Deanna's horse, and all of Deanna's
personal expenses, including clothing, spending money,
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transportation, and piano lessons, until Deanna graduated from high
school or reached the age of 18, whichever occurred later.
The District Court also awarded Twyla attorney fees.
ISSUE 1
Did the District Court err when it failed to award child
support based on the Child Support Guidelines, or to specify why it
declined to do so?
We review a district court's child support award to determine
if, in making the award, the court abused its discretion. In re
MarriageofNoel (1994), 265 Mont. 249, 252, 875 P.2d 358, 359 (citing
InreMurriageofWeed (19921, 254 Mont. 162, 165, 836 P.2d 591, 593).
The district court must employ its discretion realistically and
must take into account the parties' actual situation. MarriageofNoel,
875 P.2d at 359 (citing InreMarriageofGebhardt (1989), 240 Mont. 165,
172, 783 P.2d 400, 404)
David contends that the District Court erred because its award
was not based on the Uniform Child Support Guidelines. Section
40-4-204(3)(a), MCA (1993), directs district courts to
determine the child support obligation by applying the
standards in this section and the uniform child support
guidelines . . . unless the court finds by clear and
convincing evidence that the application of the standards
and guidelines is unjust to the child or to any of the
parties or is inappropriate in that particular case.
Section 40-4-204(3) (b), MCA (1993), provides that:
If the court finds that the guideline amount is
unjust or inappropriate in a particular case, it shall
state its reasons for finding that the application of the
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standards and guidelines is unjust to the child or a
party or is inappropriate in that particular case.
An award based on the Guidelines bears a presumption that it
is reasonable and adequate. However, the Guidelines require that
courts consider the merits and circumstances of each case.
Moreover, the Guidelines provide that either party may rebut the
presumption that they should be followed by presenting evidence
that an award based on the Guidelines would not meet the child's
needs. Rule 46.30.1507(l), ARM. Additionally, before a district
court may deviate from the Guidelines, it must make specific
written findings which demonstrate its reason for deviation from
the Guidelines. Rule 46.30.1507(3), ARM.
David contends that the District Court's decree contravenes
two of our recent decisions: In reMarriageofBrandon (Mont. 1995), 894
P.2d 951, 52 St. Rep. 381, and InreMarriageofGriffin (1993), 260 Mont.
124, 860 P.2d 78. In both cases, we held that district courts must
apply the Guidelines when they award child support. As we stated
in those cases, district courts must provide clear and convincing
reasons pursuant to § 40-4-204(3) (a), MCA, to justify a deviation
from the Guidelines. MarriageofBrandon (1995), 894 P.2d at 953;
Marriage of Grl@n , 860 P.2d at 88.
David also contends that the District Court's order gives
Twyla unfettered discretion to determine how much child support she
will pay. David relies on InreAdoptionofK.L.J.K (1986), 224 Mont. 418,
421, 730 P.2d 1135, 1137, a case in which we held that "in-kind"
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child support payments did not satisfy that parent's obligation to
his child. SeealsoInreMarriageofBurns (1982)) 198 Mont. 365, 646 P.2d
530; InreAdoptionofS.L.R. (1982), 196 Mont. 411, 640 P.2d 886. David
asserts that the District Court's child support order sanctions the
type of "in-kind" payments we have previously prohibited.
Twyla contends that the Guidelines are merely advisory in
nature and not binding on district courts. Twyla relies on Inre
MarriageofEnsign (1987), 227 Mont. 357, 361, 739 P.2d 479, 482, in
support of this argument. In that case, we held that the child
support formula set out in InreMarriageofCarlson (1984), 214 Mont. 209,
693 P.2d 496, does not bind district courts, but instead, provides
suggestions for the district courts to follow. The Guidelines were
established in 1987 and made binding upon courts in 1989 when the
Legislature amended 5 40-4-204, MCA. Therefore, to the extent
Marriage of Carlson established a procedure that differs from the
current regulatory framework, and to the extent we may have
suggested in MarriageofEnsign that the Guidelines are suggestive and
not binding, those decisions no longer apply.
We conclude that the District Court abused its discretion when
it determined child support because it did not consider the
Guidelines. Nowhere in its order did the court cite the Guidelines
or § 40-4-204, MCA. Nowhere in its order did the District Court
state its reasons for not applying the Guidelines, as § 40-4-204,
MCA, and Marriage of Brandon require. Nowhere in its order did the
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District Court state why a deviation from the Guidelines served
Deanna's best interests. Twyla's assertion that the Guidelines are
suggestive and not binding ignores the clear statutory and
regulatory requirements of 5 40-4-204(3), MCA, and Rule
46.30.1507(3), ARM. Moreover, there is no way for us to actually
evaluate the amount of the District Court's child support award and
compare it to the dollar amount that the Guidelines require. We
conclude, therefore, that the District Court abused its discretion
when it awarded child support in this case.
ISSUE 2
Did the District Court err when it ordered that the tax
deduction for the couple's daughter be shared without regard to her
place of residence or the financial implications to the parties?
We review a district court's award of a tax exemption to
determine whether the court abused its discretion. In re Marriage of
Milesnick (1988), 235 Mont. 88, 91, 765 P.2d 751, 753.
David contends that he was entitled to the tax exemption in
this case because, as an employee of MEA, certain benefits, which
include Deanna's health insurance and a reduction in tuition,
depend on his right to claim the exemption. He claims that the
reduction in tuition alone is worth $1509.25, but that Twyla would
realize a tax savings of only $367.50 by having the tax exemption.
In other words, David claims that the benefits Deanna would receive
if he were awarded the tax exemption far outweigh the benefits
Twyla would receive from the current alternating award.
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Twyla claims that she has no objection to David's receipt of
the tax exemption as long as David is employed by, and Deanna
remains in school at MEA.
In InreMarriageofSimms (1994), 264 Mont. 317, 326, 871 P.2d 899,
904, we held that district courts should enforce parties' in-court
stipulations and agreements to the extent possible and consistent
with the court's primary duty to apply the appropriate statutory
criteria.
Based on the reasoning set forth in that decision, and the
parties' apparent agreement regarding the best use of the tax
exemption for Deanna, we conclude that the District Court abused
its discretion when it alternated the exemption between the parties
without regard to how it could best benefit them and their
daughter. That District Court tax exemption award is reversed. We
order that the exemption can be claimed by David, so long as he is
employed by MEA and Deanna attends school at MEA. Should either
condition not exist, the exemption should be shared by the couple
on an alternating annual basis.
ISSUE 3
Did the District Court err when it based its division of the
couple's property on an oral stipulation?
We review a district court's division of a marital estate to
determine whether the court abused its discretion. In re Marriage of
Muedje (1994), 263 Mont. 262, 265-66, 868 P.2d 580, 583.
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David purchased land in Missouri prior to the marriage.
During their marriage, he and Twyla built a home on this land. The
District Court did not, however, give David credit for the value of
this premarital property when the court divided Twyla and David's
marital estate.
Twyla contends that the court's disposition of the couple's
Missouri home was justified based on an oral stipulation entered
into in open court while both parties were represented by counsel.
In that stipulation, Twyla's counsel stated:
Specifically, as to the home in Missouri, Mrs. Schnell
will purchase that home for one-half--from Mr. Schnell
for one-half the appraised value. The parties will
immediately have the property appraised. They will both
equally pay one-half of the cost of that appraisal. Then
she will, within 30 days of the receipt of the appraisal,
pay Mr. Schnell one-half of that value.
David did not object to the stipulation at trial.
We recently affirmed a district court's enforcement of an
in-court stipulation. See In re Marriage ofJakkola (1994) , 267 Mont. 450,
453, 884 P.2d 783, 785. In that case, we held that: "To the
extent that the court is able to apply the statutory [§ 40-4-202,
MCA] criteria while, at the same time, holding the parties to their
on-record stipulations and agreements, it should do so." Marriage of
Jakkola, 884 P.2d at 785. David contends that pursuant to InreMarriage
ofHayes (1994), 264 Mont. 350, 871 P.2d 913, the District Court
abused its discretion when it enforced the stipulation. In that
case, we concluded that district courts may not enforce an in-court
stipulation unless the parties reduce it to writing.
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We need not reach this issue, however. The stipulation was
made in open court on June 16, 1992. The District Court filed its
original order concerning the stipulation on July 10, 1992. David
did not challenge the stipulation at trial, and now challenges the
stipulation for the first time on appeal. We have previously held
that parties cannot raise issues for the first time on appeal.
Morse v. Cremer (1982), 200 Mont. 71, 81, 647 P.2d 358, 363-64.
Therefore, based on the stipulation, we affirm the District Court's
division of Twyla and David's marital estate.
ISSUE 4
Did the District Court err when it awarded Twyla attorney
fees?
We review a district court's award of attorney fees to
determine whether the court abused its discretion. In re Marriage of
Barnard (1994), 264 Mont. 103, 109, 870 P.2d 91, 95 (citing Inre
MurriageofBurris (19931, 258 Mont. 265, 272, 852 P.Zd 616, 620).
Pursuant to § 40-4-110, MCA, and based on our decision in Inre
MarriageofRager (1994), 263 Mont. 361, 868 P.2d 625, David contends
that district courts must consider both parties' financial
resources prior to awarding attorney fees.
David asserts that because he and Twyla earn approximately the
same amount of money, and because Twyla received substantial assets
from the property settlement, Twyla has failed to prove that she
was unable to pay her attorney fees or that David was in a better
position to pay her attorney fees.
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Twyla responds that David has repeatedly frustrated a timely
disposition of this matter and cites the District Court's findings
and conclusions, in which the court referred to the several times
it held David in contempt during the dissolution proceedings.
Twyla also relies on InreMarriageofSyljuberget (1988), 234 Mont. 178, 763
P.2d 323, a case in which we affirmed the district court's award of
attorney fees to a wife when a majority of her attorney fees were
due solely to the husband's lack of cooperation.
The evidence clearly establishes that David has been
uncooperative during the dissolution proceedings and willfully
frustrated an expeditious resolution of the parties' differences.
The financial burden of his behavior should not be borne by his
former spouse. Therefore, we conclude that the District Court did
not abuse its discretion when it awarded Twyla attorney fees.
Based on the foregoing discussion, we reverse the District
Court in part, and affirm the District Court in part, and remand to
the District Court for further proceedings consistent with this
opinion.
Ju,$tice
/
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We concur:
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