September 17 2008
DA 07-0347
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 325N
IN RE THE MARRIAGE OF
CARRIE L. BREWER,
f/k/a CARRIE L. BLACKFORD,
Petitioner and Appellant,
and
DEAN MICHAEL BLACKFORD,
Respondent and Appellee.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DR 06-1284
Honorable Susan P. Watters, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jill Deann LaRance; LaRance & Syth, P.C., Billings, Montana
For Appellee:
Robert J. Waller; Waller & Womack, Billings, Montana
Submitted on Briefs: July 23, 2008
Decided: September 16, 2008
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be cited
as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and
its case title, Supreme Court cause number and disposition shall be included in this Court’s
quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 Carrie L. Brewer (Carrie), formerly known as Carrie L. Blackford, appeals from the
portions of the order of the Thirteenth Judicial District Court, Yellowstone County, denying
her motion for back child support from her ex-spouse Dean Michael Blackford (Dean),
directing that neither Carrie nor Dean would pay current child support, and denying Carrie’s
request for attorney fees. The District Court determined Dean did not owe Carrie back child
support from February 17, 2005 to February 15, 2006 because there was no reason to deviate
from a 2005 stipulated parenting plan providing for no child support during that time. In
relation to current child support and back child support from February 2006 forward, the
court found—among other things—that Carrie’s testimony regarding her expenditures for the
children was neither adequately supported by documentation nor credible.
¶3 In its conclusions of law, the District Court relied on Midence v. Hampton, 2006 MT
294, ¶ 18, 334 Mont. 388, ¶ 18, 147 P.3d 227, ¶ 18, for the proposition that, when parties
agree to modify child support but do not agree on the amount, statutory criteria and the
Montana Child Support Guidelines (Guidelines) are still applicable in determining whether a
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variance from the Guidelines should be granted. In that regard, the District Court cited to
Admin. R. Mont. 37.62.102(1) and concluded that the presumption created by the Guidelines
of the adequacy and reasonableness of a child support award was rebutted in this case by the
parties’ testimony that the children’s needs had been met without extraordinary contribution
by Carrie. The court also determined, by clear and convincing evidence as contemplated in §
40-4-204(3)(a), MCA, that following the Guidelines would be unjust to Dean and would
result in a windfall to Carrie. Finally, the court denied Carrie’s request for attorney fees
because she had not prevailed at trial.
¶4 On appeal, Carrie asserts the 2005 parenting plan is not enforceable insofar as it
contemplated no child support from February 2005 to February 2006, because that provision
was not in the children’s best interests and the District Court did not make plan-related
findings regarding the criteria set forth in § 40-4-204, MCA. She also argues the District
Court should have held the parties to the stipulated parenting plan to the extent possible with
respect to its provision for determining child support from February 2006 forward. Carrie
posits that the parenting plan contemplated that child support from February 2006 forward
would be based on the Guidelines—which, as mentioned above, the District Court did not
apply upon determining the children’s needs were met and clear and convincing evidence
established that application of the Guidelines would be unjust to Dean. See § 40-4-204(3)(a),
MCA; Admin. R. Mont. 37.62.102(1).
¶5 With respect to the District Court’s grant of a variance from the Guidelines, Carrie
first posits that we should revisit our current standard of review for abuse of discretion and,
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instead, conduct de novo review. Having considered Carrie’s arguments and the authorities
on which she relies, we are not persuaded to adopt a de novo standard of review here.
¶6 Several of Carrie’s substantive arguments regarding the variance from the Guidelines
are, in essence, policy-based assertions that the “children’s needs are being met” provision of
Admin. R. Mont. 37.62.102(1) makes it too easy to rebut the presumptive child support
award calculated under the Guidelines. Carrie also points to Admin. R. Mont. 37.62.102(6),
an inapplicable rule addressing conditional variances. In addition, Carrie disputes some of
the District Court’s findings relating to the children’s expenses. For example, she points to
her testimony that she incurred $12,000 in credit card debt—testimony which the District
Court found was unsupported by documentation. In challenging the finding that Dean had
paid the vast majority of the children’s expenses, Carrie points to Dean’s testimony that he
had not given Carrie any money—testimony which does not establish a failure to pay the
children’s expenses. Finally, Carrie asserts she is entitled to attorney fees, because Dean
allegedly failed to timely transmit financial information as required by the stipulated
parenting plan, and the plan provided that “[i]f court action is necessary to establish child
support, the court may award attorney fees as the court deems appropriate”—a provision
clearly leaving the decision to the District Court’s discretion.
¶7 We have determined to decide this case pursuant to Section I, Paragraph 3(d), of our
1996 Internal Operating Rules, as amended in 2003, which provides for memorandum
opinions. It is manifest on the face of the briefs and the record that this appeal is without
merit because the District Court’s findings are clearly supported by substantial evidence and
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are not otherwise clearly erroneous, the court correctly interpreted legal matters controlled by
settled Montana law and it clearly did not abuse its discretion with respect to those matters
within its discretion.
¶8 Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
/S/ JIM RICE
/S/ BRIAN MORRIS
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Marriage of Blackford
Combined Opinion