                                          NO. 96-079
                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                              1996


IN RE THE MARRIAGE OF
CAROL S. MILNER-BRINDLEY,
               Petitioner         and Respondent,
         and
                                                                                           ,,,     ;/.
RICHARD A.      BRINDLEY,
               Respondent         and Appellant.



APPEAL     FROM:       District  Court of the           First   Judicial   District,
                       In and for the County            of Lewis and Clark,
                       The Honorable   Dorothy          McCarter,     Judge presiding,


COUNSEL OF RECORD:
               For   Appellant:
                       R. Clifton    Caughron,         Caughron      & Associates,
                       Helena,    Montana
               For   Respondent:
                       Iris  A. Basta and John Grant,   Jackson,                 Murdo,
                       Grant & McFarland,  Helena,   Montana


                                          Submitted     on Briefs:        November    7,         1996
                                                          Decided:        December    10,        1996
Filed:
Chief        Justice              J.     A.      Turnage           delivered             the      Opinion               of      the      Court.
            Pursuant              to     Section            I,     Paragraph             3(c),         Montana                 Supreme            Court
1995        Internal             Operating               Rules,        the       following              decision                shall         not       be

cited        as precedent                     and shall            be published                 by its          filing           as a public

document            with         the      Clerk         of the         Supreme           Court         and by a report                        of       its

result         to        State         Reporter           Publishing              and West              Publishing                   Companies.

            Richard              A.     Brindley                 (Richard)            and      Carol          S.        Milner-Brindley

(Carol)             were         divorced              on January               18,     1996.           Richard                appeals              from

the      findings,               conclusions,                    and decree            of dissolution                        entered          by the
First        Judicial                 District           Court,        Lewis           and Clark              County.                 We affirm.

                                                                  BACKGROUND

            Richard            and Carol               were married               on February                  14,           1988.       Christo-

pher      Brindley                (Christopher),                    currently            seven         years            old,      is     the       only

child        born         of     the       marriage.                Carol        holds         a Ph.D.             in     psychology                   and

is      employed           by the             Department              of Veterans                Affairs,               earning              $57,000

annually.                 She also               works       as a consultant                     and is            an officer                 in       the

Naval         Reserve,                 receiving                 additional             income           of        $7,561              per        year.

Richard             is      disabled               and       unemployed.                     He receives                       a VA medical

retirement                of      $227 per             month         and Social                Security              benefits                of     $596

per      month.            He also               receives           Christopher's                  monthly              Social           Security

dependent                allowance               of     $296.
            On July              26,      1994,         Carol         filed           a petition               for        dissolution                    of

marriage.                 Following               mediation,            the      parties              entered            into         a property

settlement                 and         maintenance                 agreement             (Property              Agreement),                       which
provided            Richard              with         $25,000        cash,       $4800          for     maintenance,                     and paid

his      attorney                fees.            The court             found          the      Property                Agreement                 to     be

                                                                            2
fair         and         equitable                     and          incorporated                             its       provisions                        into       the

dissolution                     decree.                      The          parties                   also           agreed              on     custody               and
visitation                 in      a Memorandum                      of Understanding                                (MOU),            which            gives       the

parties            joint           custody              of      Christopher,                          with          Christopher                   to      spend          60

percent            of      his          time          with          Carol             and           40 percent                  with        Richard.                The

court         found              the           MOU to               be          in        the         child's              best             interests               and

incorporated                     its          provisions                   into               the     dissolution                  decree.

           The only                issue            presented                   at the              dissolution                  proceeding                    was the

determination                      of     child             support.                      The court                found,         based           on the          MOU,

that       Christopher                    will          reside              with              Carol         60 percent                 of     the         time,          or

219      days,           and           with          Richard              40 percent                       of       the     time,            or        146       days.

Based        on         the        Montana              Child              Support                   Guidelines                   (Guidelines),                     the

court        also          found          that          Richard                 owed $38 per                       month          in     child            support,

which        it         waived.                     Instead,               it         found           that          60 percent                 of         Christo-

pher's        $296 Social                          Security           dependent                      allowance,                  or $177.60,                    should

be substituted                          for         Richard's                   child           support             obligation.                        The court

based        its         calculations                        on Carol's                         annual             gross         income            of      $64,561

and Richard's                       income             of       $10,020.                        The     court             did      not        consider              the

parties'             assets              because               it         found               the     property              division                to     be fair

and equitable.
           Richard                 appeals             from          the             District               Court's              findings                 of     fact,

conclusions                   of       law,          and decree                      of       dissolution.                      He argues                 that      the

court         erred                and             abused           its          discretion                        when          calculating                     child

support            because                    it      failed              to         apply            the          relevant              administrative

rules        when determining                               the      number                   of days           he should              be credited                   for




                                                                                          3
child           support              and         improperly                     calculated                    Carol's                 federal               income
taxes           and day             care         costs.

           Richard             also         argues              that           the       court         misapplied                      the        holding                of

In      Re Marriage                   of        Durbin               (1991),             251 Mont.                  51,         823 P.2d                 243,            by

awarding               60 percent                      of       Christopher's                         Social              Security                    dependent

allowance               to     Carol             as a substitute                           for        child          support.                     He further

claims          that         the     court's                 child        support               calculation                     is     unconscionable

because           it        fails          to        maintain             Christopher's                        standard                    of     living            and

nearly           lowers             Richard's                   income               below        the         federal                 poverty               index.

Richard               also          requests                   attorney                  fees,          costs             of          appeal,                and          a

retroactive                   award         of         child           support             and Social                    Security                 benefits.

           Richard             claims                that       the       District               Court          failed                to     consider               the

visitation                   schedule                 contained                 in       the      MOU when                 it          calculated                   the

number           of         days       that            he       and        Carol               should         be         credited                  for           child

support.                Richard             argues              that       the           court        should             have          determined                   the

number           of         hours      that             he and             Carol            spend         daily            with              Christopher.

Richard           claims             that            he spends              a majority                  of     the        year             with        Christo-

pher       (between                 184-192             days),            thus           entitling             him         to a recalculation

of      child          support             and primary                    custodian                   status.               Carol               argues            that

the       court              took          judicial                    notice             of      the         60-40                  percent             custody

arrangement                   provided                  for          in    the           MOU, which                  contains                   all         of      the

details           necessary                     to     calculate                 the        number            of         days          of       custody             for

child           support.

           The         standard                 of     review             of     a district                   court's                  award           of        child

support           is        whether             the         district            court            abused            its     discretion.                           In Re

Marriage               of     Craib         (1994),               266 Mont.                    483,     490,             880 P.2d               1379,            1384.


                                                                                     4
Rule       46.30.1535(5)                       (a) (i),           ARM, defines                     a day as "when                     a parent              has

physical            control               of     a child               for      the     majority                 of     a 24 hour             calendar

day."           The arguments                         that           Richard          presents                  on the        number          of      hours

that        he      will            spend             with            Christopher                   are          speculative,                  and          his

proposed           definition                    of        "day"        differs              from      the         definition               contained

in      the       Guidelines.                           Richard               attempts                to         count          the         time          that

Christopher                   spends            in     school            as a "day,"                   yet         provides            no case              law

or     administrative                      rule            to        support          his       argument.

           The MOU allocates                               custody           to Carol                60 percent                of     the     time          and

to Richard               40 percent                   of        the     time.          The provisions                         contained              in     the

MOU are             substantial                       credible                evidence                to         support             the      District

Court's           finding             that           Richard            has annual                  custody             of Christopher                      for

146 days            and         Carol           has          custody            for     219 days.                       The     District                 Court

did       not      abuse            its        discretion                    when       it         calculated                 Richard's                  child

support           obligation                    based            on the         60-40           percent               custody          arrangement

contained               in     the        MOU.

           Richard              claims,                without               citing                legal          authority,                 that           the

District            Court           abused             its           discretion               in     calculating                    child          support

when it           failed            to adjust                Carol's            tax         liabilities                  to account                for      the

fact       that      she intends                      to file            as an unmarried                          head of household                         and

itemize           her        deductions.                        He supports                  his      argument             by providing                     pro
forma           income           tax           forms            of      Carol's              taxes              and     suggests              that          the

District            Court           could            take         judicial             notice              of     the    Tax Code and seek
assistance                   from      a tax           professional.

           In     Fronk          v.       Wilson                (1991),         250 Mont.                   291,        819 P.2d             1275,          the

wife       argued              that        the          court           erred          by       allowing                her         husband           a tax


                                                                                 5
deduction                when             it         calculated                  child             support.                  This         Court             found          no
errOr,              holding               that             a district                  court               is      in     the       best          position                  to

determine                whether                    tax     returns             accurately                      reflect          disposable                   income.

Fronk,            819 P.2d                     at     1279.

                There           is     no record                        that      the         pro      forma              tax       returns             submitted

by Richard                    were             ever         admitted               by the             District                  Court.                 Due to         the

speculative                    nature                 of     these             returns             and because                   the       District                Court

is       in     a better              position                     to determine                     Carol's               disposable                   income,             we

conclude                 that             the             court          did       not            abuse            its          discretion                   when           it

calculated                    Carol's                     income           taxes             to      determine                   her        child             support

obligations.

               We       also           note                that           Richard                  provides                 no       legal              authority
interpreting                     the           Guidelines                  which            would           render          the District                      Court's

application                    of the                law        as an abuse                   of     its         discretion.                  An appellant
carries                 the          burden                of          establishing                    error              by        the      trial                court.

Moreover,                 Rule            23,         M.R.App.P.,                      requires                  the       appellant                   to     cite          to

authority                 which                 supports                 the      position                      being       advanced                   on     appeal.

Richard               repeatedly                      has         failed          to         do so.

               Richard               also             argues             that          the          court           erred           when          it        credited

Carol            with         year-round                        day       care         expenses                   because            Christopher                     will

not           require          day care                    when he is                  in      Richard's                  custody            or when Carol

is       on vacation.                          Richard                 suggests              that      he is             willing,            and should                     be

able,            to      provide                    free          day      care          to        Christopher                    rather               than        being

required                 to          pay             for          it       as      a         portion                of      his           child             support.

Richard's                 arguments                         ignore              the          express               provisions                 of            the      MOU,

agreed                upon           by         both            parties                with           advice               from           counsel,                 which


                                                                                         6
provides,                 "At     Carol's                   discretion,                   her     residency                        may include               time      at

a day          care        of     her             choice.                     . . 'I
           Rule           46.30.1525(l)                         (a) (i),             ARM,        states             that              child         care           costs

may be based                      on annualized,                              average            costs            of              receipted             expenses.

Carol           testified,                       and her             financial                  affidavit                         indicated,               that      her

day       care            costs              equal              $250          per         month.                  There                was         substantial

evidence                 presented                     at     the       dissolution                     proceeding                         to      support            the

court's            finding                  that            Carol        was entitled                       to      a $210                 credit           for      day

care       expenses.                         The            court        did         not         abuse            its             discretion                when       it
credited               Carol           for            day care              expenses.

           Richard               argues                the      court          failed            to consider                         the        value        of     non-

income-producing                             assets             when it              calculated                  child              support.               However,

at      the       same           time,                he      also       claims             that            his          assets              should           not      be

subject            to       the            same calculation.                                When the                    District                 Court        deter-

mined         Richard's                    and Carol's                   child            support             obligations                        according             to

the      Guidelines,                        it         specifically                    found           that             it         had not           considered

the      net       value              of         the        parties'            assets            because                    it      found         the      marital
property                 division                     to      be       fair          and         equitable.                            The         court           asked

Richard             if      he believed                         the         property               had        been                 equitably               divided.

Richard's                 counsel                 agreed             that       it        had.

           We decline                       to         review          an issue                 that         Richard                   initially              agreed

upon       during               the        dissolution                      proceeding                 and which                      is    raised           for      the

first           time        on appeal.                          In     Re Marriage                     of        Mager               (1990),             241 Mont.

78,      81,       785 P.2d                 198,            200-01.             We affirm               the         District                    Court's            award
of      child            support                 in     all        respects.




                                                                                      7
           Richard               further              argues         that          the         court       erred           and       abused           its
discretion                 when it          relied             on Durbin,                 823 P.2d             at     243,          and awarded

Carol           60        percent               of      Christopher's                          Social          Security                   dependent

allowance              as a substitute                         for     Richard's                 child         support              obligation.

In Durbin,                the      mother,             primary         custodian                  of     two     children,                 received

Social          Security                benefits              on behalf                  of     her      children              due         to      their

father's              disability.                      We held              that         the      Social            Security               benefits

should          be        treated           as         a contribution                         from       the        father           toward           the

support          of        his      children             and serve                 as a credit                 toward            the       father's

child       support               obligation.                   Durbin,             823 P.2d              at    247.
           Richard               argues         that      Durbin            does not             apply         to this           case        because

he,       not        Carol,             receives              Christopher's                       Social            Security               benefits

which         enable             him       to        provide          basic          living             needs         for        his        son.            A

closer          analysis               of Durbin              proves          Richard's                 argument             incorrect.                    In

Durbin,             the         amount           of     Social          Security                 benefits              received                 by    the

mother          exceeded             the        amount         of    child          support             the     father           was required

to      pay          under           the         Guidelines.                        Durbin,              823         P.2d           at          244-45.

Likewise,              Christopher's                     $296 allowance                        exceeds         Richard's                  $38 child

support          obligation                     calculated             under             the     Guidelines.                     The District

Court         did         not      err      when         it      allocated                    60 percent              of      Christopher's

$296       Social            Security                allowance          to         Carol.

           Richard               also       claims            that      the         court             erred         when       it         failed           to

recognize              the        disparity             in the parties'                        financial             resources                  when it

declined              to         deviate              from      the         Guidelines.                        He     claims               that       the

court's             child          support             determination                     places          him        below           the         federal

poverty             level.


                                                                             8
          In      his         initial             brief,            Richard             states        that          the       federal            poverty

level          for         a single               person            under         age        65 with             one child                is     $10,504

per      year.              Richard              also       admits           that         his       total           resources                  amount           to

$11,441          per          year.          By Richard's                    own admission,                       the        District            Court's

child          support                calculations                     do        not      place           him        below              the      federal

poverty              level.

          Richard                  also       argues            that        the         court's             child            support            calcula-

tions          will           reduce              Christopher's                        standard             of       living             to       that           of

poverty           during             the      time         he spends              with         Richard.               Richard             then        urges
this      Court             to modify              his       child          support             obligation                   by reason               of        the

financial                  inequities               between            the        parties.                He cites              In Re Marriage
of      Hall          (1990),              244      Mont.            428,         798        P.2d         117,          in     support               of        his

argument.                    In     u,             we stated                that         a court             is      not        bound           to        apply

the      Guidelines                   if     the        court        finds           by clear             and convincing                        evidence

that       so doing                 would          have         an unjust                result           on the              parties.                Hall
                                                                                                                                                      -,

798 P.2d               at      121.

           The facts                  of     u             differ           from        Richard's                 situation.                    In ~,
                                                                                                                                                   Hall

the      court             considered              a father's                children               from         a subsequent                   marriage

when       determining                      his      increase               in       child        support.                    That        is     not           the

situation                   here.             We decline                    to         extend         the           holding             of       u              to

Richard's                   situation.                      The        District                 Court's              substitution                         of         a

percentage                   of      Christopher's                     Social             Security                benefits               in      lieu           of

Richard's                  child           support          obligation                  will        not       have           an unjust               result

on the           parties.
           We also                  note          that        Christopher's                       Social             Security                  allowance

belongs               to      Christopher,                    not      to        Richard            or       Carol.               Regardless                    of


                                                                                 9
which       parent          receives           the      allowance,                 its     proceeds             benefit            Christo-

pher.             The      District            Court's               60-40          percent          distribution                    of       the
allowance           will         not     affect          Christopher's                     standard             of     living.

          Richard            also        requests             an      award          of      attorney                fees,         costs       of

appeal,            and       a      retroactive                award           of         child       support                and      Social

Security.               Because          Richard          has not             shown an abuse                    of     discretion              in

the       child          support            calculation,                      we         decline           to         award         Richard

retroactive                child        support          or     Social          Security             benefits.

          Richard           contends           that       he should                 be awarded              attorney               fees       and

costs       of     appeal          because           he is      without              assets         to pay            for        an appeal.

Richard's           argument             is without             merit.              The Property                Agreement             signed

by Richard              and Carol           states,             in     part:

          Each party hereto     further     releases   and forever      discharges
          the other party           . and Richard's      attorney,      R. Clifton
          Caughron,    for  himself,       hereby    specifically        and fully
          releases   and forever      discharges     Carol      . . . for payment
          of any and all    attorney's        fees which the named attorney
          claimed   or which he might         claim  now or in the future          on
          account   of this   action      . . .

          The Property                  Agreement             provided             Richard          with        compensation                  for

his     attorney            fees        associated             with      this            action.           The District                   Court

approved           the       attorney             fee     agreement.                      We hold          that         the        District

Court       correctly               required            Richard          to     pay his            own attorney                    fees.

          Affirmed,              with      each party                to pay          their         own costs                of    appeal




                                                                                           Chief      Justice
We concur:




                        748




             Justices




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