                             No.     94-130
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1995


IN RE THE MARRIAGE OF
KATHLEEN JEANE BELET,
      Petitioner/Cross-Appellant,
and




APPEAL FROM:    District Court of the Fourth Judicial District,
                In and for the County of Missoula,
                The Honorable John Henson, Judge presiding.


COUNSEL OF RECORD:
           F?r Appellant:
                Richard A. Reep, Reep, Spoon        & Gordon, Missoula,
                Montana
           For Respondent:
                 John C. Schulte,     Missoula, Montana


                              Submitted on Briefs:        February 9, 1995
                                              Decided:    May 4, 1995
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.

       This is an appeal from the findings of fact and conclusions of
law of the Special Master approved by the Fourth Judicial District

Court, Missoula County, in the marriage dissolution of Kathleen and

David Belet.     We affirm in part, reverse in part and remand for

issuance of an order pertaining to the uncovered medical expenses

of the children.

       Some of appellant's and all of cross-appellant's proposed

issues are based upon factual determinations made by the Special

Master and the District Court.           Unfortunately,   neither party

ordered a transcript of either proceeding and this Court cannot

review     any findings of fact to see if they are erroneous.

Therefore, we only address the following legal issues:

I.     Did the District Court err in dividing the uninsured and

uncovered medical expenses equally rather than on the ratio of the

parties'    income pursuant to Rule 46.30.1525 and Rule 46.30.1532?

II.     Did the District Court abuse its discretion in not awarding

retroactive    child   support   from the date of separation of the

parties?

III.   Did the District Court abuse its discretion in failing to

order Kathleen pay $300.00 per month in support and $50.00 in

medical expenses during the period of separation as agreed by

Kathleen in writing at the time of separation?

IV.     Did the District Court err pursuant to § 40-4-201, MCA, in
failing to make a finding of conscionability or unconscionability

of the parties' Separation Agreement filed with the court?

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V.      Did the District Court err in allowing Kathleen to amend the
Petition for Dissolution to provide for distribution of property?

VI.      Did the District Court abuse its discretion in failing to

award David attorney's fees?

        The parties to this acrimonious dissolution were married on

July 26,    1980 and separated on June 23, 1991.                 The couple have two

sons,    ages five and nine, who reside in the family home with the

father.      However,      the parents share custody of the children with

scheduled visits made to coincide with the mother's work schedule.

The     parties   executed    an    Agreement    of    Separation    which   contained

provisions for support, custody and visitation.

        On August 27, 1991, Kathleen Belet (Kathleen) filed a Petition

for Dissolution of Marriage.             In this initial petition, Kathleen

alleged      that    all     property    had been          equitably     distributed.

Kathleen's        husband,     David     Belet        (David),    agreed     with   the

distribution.
        On September 19, 1991, the District Court assigned the case to

a special master, both parties stipulating to the assignment.                       For

the next year,       the     parties    attempted      negotiation     concerning   the

couple's two children.             In September of 1992, Kathleen reported at

a settlement conference that she wished to reopen the issue of

property     distribution.         The District Court granted the amendment.

        An Amended Petition for Dissolution of Marriage was filed in

October of 1992.        A hearing was set by the Special Master for June

24, 1993. Another supplemental hearing was held on July 23, 1993.

The Special Master entered her Findings of Fact and Conclusions of

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Law on July 23, 1993.       David objected to these findings formally

and Kathleen replied.
     The District Court then set a hearing for oral argument

September 28, 1993,      which was then continued until October 19,

1993. Following argument, the court slightly modified the Findings
of the Special Master and issued an Order and Opinion on December

9, 1993. A final decree of dissolution was entered by the court on
December 27, 1993.

     The transcripts of the Special Master's hearing and the oral

argument to the District Court remain untranscribed.                  Because of
our inability to review the transcripts, this Court will consider

as conclusive the Findings of Fact of the District Court.



     Did the District Court err in dividing the uninsured and

uncovered medical expenses equally rather than on the ratio of the

parties' income pursuant to Rule 46.30.1525 and Rule             46.30.1532?

     David argues that the District Court and the Special Master

did not pro-rate the children's uncovered medical expenses.

Kathleen    contends   that the administrative          rule governing the

division of these expenses is only a suggestion and not mandatory.
     Pursuant to the Child Support Guidelines, the District Court

determined that the available resources of the parents stand at 59%

for Kathleen and 41% for David.             Despite this finding made in a

worksheet   attached   to   the   court's    Opinion,   the   court   determined

that the couple        should share the uncovered medical expenses

equally.
       District   courts   are required to follow the Child Support
Guidelines or declare why they have deviated.           Section   40-4-204,
MCA.     The District Court did not explain why it accepted the

Guidelines as controlling yet deviated from them when assessing the

uncovered medical costs of the children.         The Guidelines show that

Kathleen produced 59% of the available family resources and David

41%

       Administrative Rule 46.30.1525 states that:

       SUPPLEMENTS FOR PRIMARY CHILD SUPPORT NEED
       (1)   The basic primary child support obligation may be
       supplemented upon the following conditions:
       (a)    "Child care costs" means when a child support
       obligation is to be calculated based in part on the
       earnings of a custodial parent and that parent must incur
       child care expenses for that child as a prerequisite to
       employment, it is recommended that the reasonable costs
       of child care should be pro-rated between the parents and
       added to supplement the basic child support obligation;

       ibi if'"extraordinary medical expenses" are incurred on
       behalf of a child which are likely to reoccur on a
       periodic basis, those expenses should be pro-rated
       between the parents and added to supplement the basic
       child    support    obligation.    (Emphasis added.)

       A.R.M. Rule 46.30.1532 likewise requires the uninsured medical

needs of the children to be apportioned by the court on the same

basis that it apportions the primary support

       The Child Support Guidelines were followed by the court and

the    Special Master when   determining   the   appropriate   monthly   child

support; however, both deviated from the administrative rules that

were devised to help courts administer the guidelines when
attempting to divide supplemental needs of the children.             Neither

authority has provided an explanation for the deviation.

       It is clear that the administrative rules recommend that extra
                                      5
expenses should be pro-rated.              Unless the court has a reason for
deviation, the administrative rules governing the guidelines should

be   used.

       We hold that the District Court erred in not pro-rating the

uncovered medical expenses of the children on the basis of David,

41%, and Kathleen, 59%. We reverse the District Court's conclusion

of    law    #14    because   it     is   based   upon   an   erroneous   legal

interpretation and we remand this action to the District Court for

issuance of an order that the uncovered medical, ocular, and dental

care expenses of the children be pro-rated to the parents at 59%

for Kathleen and 41% for David.
                                          II.

       Did the District Court abuse its discretion in not awarding
retroactive        child   support   from the date of separation of the

parties?

       David argues that he has been the sole support of the children

for two and one half years and that he is entitled to retroactive

child support from the present back to the time of separation.

Kathleen argues that she provided monies for the childrens' care

during the dissolution period.

       The District Court has discretion in determining whether

retroactive child support should be awarded;                  and we will not

disturb that decision unless a clear abuse of discretion results in

substantial prejudice. Marriage of Nash (1992), 254 Mont. 231, 836

P.2d 598.      The District Court concluded that no retroactive child

support      should be awarded.             The court also stated that the


                                            6
Separation Agreement was only a              temporary agreement and close
reading of that agreement shows this to be true.

        While the court has not provided us with a reason for denial

of retroactive support, the court has stated unequivocally that the

Separation      Agreement    calling for a $300 per month payment by

Kathleen was only temporary and that the parties continue to be

hostile to one another despite the negative impact on their

children.        Kathleen argues that David admitted at trial that

retroactive support was not needed.            However,   as we have already

stated, we have no trial testimony to review so we must conclude
that the District Court did not abuse its discretion by failing to

award retroactive child support.

                                      III.

        Did the District Court abuse its discretion in failing to

order Kathleen to pay $300.00 per month in support and $50.00 in

medical expenses during the period of separation as agreed by

Kathleen in writing at the time of separation?
        David argues that the Separation Agreement that both parties

signed following their separation is binding on the issue of

support and that Kathleen should pay him the agreed upon amount of

$300.     Kathleen argues that the Agreement was only for a matter of

months.
        The    District     court   determined that       the   Agreement     was

temporary.       A review of that Agreement shows that it was meant to

be in force from July of 1991 until December of 1991.                       Thus,

David's       argument   that Kathleen was      legally bound to pay $300
support because she agreed to it is not persuasive.         Further, the
District Court is not bound by any written agreement of the parties

concerning support or custody of the children.             Section 40-4-
201(Z),   MCA.

     We hold the District Court did not abuse its discretion in

failing to order Kathleen to pay $300.00 per month in support and

$50.00 in medical expenses during the period of separation as
agreed by Kathleen in writing at the time of separation.



      Did the District Court err pursuant to 5 40-4-201, MCA, in

failing to make a finding of conscionability or unconscionability

of the parties' Separation Agreement filed with the court?

      David argues that the court cannot change the Separation
Agreement unless it makes a finding of unconscionability.        That is

not what the statute says:

       [Tlhe terms of the separation agreement, except those
      providina for the support, custody, and visitation of
      children, are binding upon the court unless it finds,
      after considering the economic circumstances of the
      parties and any other relevant evidence produced by the
      parties, on their own motion or on request of the court,
      that    the  separation  agreement is    unconscionable.
       (Emphasis added.)

The court is not bound by any provision in an agreement pertaining

to support,      custody or visitation, no matter whether it makes a

finding that the agreement is unconscionable or not.          It is only

the remainder of       the   agreement,   minus   any   concerns for the

children,    that requires the court to first make a finding of

unconscionability before it changes the terms of the agreement.

      We hold that the court did not err in failing to make a

                                     8
finding of conscionability or unconscionability pursuant to § 40-4-
201, MCA of the parties' Separation Agreement filed with the court.

                                   V.

       Did the District Court err in allowing Kathleen to amend the

Petition for Dissolution to provide for distribution of property?

       The rules of civil procedure require that leave to amend

pleadings be freely given when justice requires.            Rule 15,

M.R.Civ.P.,     Stanford v. Rosebud County (1992), 254 Mont. 474, 839

P.2d 93. Even though the distribution of property had already been

settled,      the District Court chose to allow Kathleen to amend the
pleadings to ask the court to make a distribution of property.

Because we have no transcript of any of the proceedings before the

Special Master or the District Court,        we cannot say that the

District Court erred in allowing Kathleen to amend her petition.

       We hold that the District Court did not err in allowing

Kathleen to amend her original petition for dissolution and add a

request that the court consider the property distribution.

                                   “I.


       Did the District Court abuse its discretion in failing to

award David attorney's fees?

       David argues that he is due attorney's        fees because of

needless litigation begun by Kathleen.      Kathleen does not agree.

       In a dissolution proceeding, the District Court is given the
discretion to award costs and attorney's fees if it believes that

the financial situation of the parties warrants it.     Section 40-4-

110,   MCA.     We will not disturb that decision absent an abuse of

                                     9
discretion.   In re Marriage of Sullivan (1993), 258 Mont. 531, 853

P.2d 1194.

     The District Court did not award attorney's fees to either

party.   In the absence of a complete record, we hold that the

District Court did not abuse its discretion in failing to award

attorney's fees to either party.

     Affirmed in part and reversed and remanded in part for the

issuance of a court order requiring Kathleen to pay 59% and David

41% of the children's uncovered medical, ocular, and dental costs.

     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document

with the Clerk of this Court and by a report of its result to the

West Publishing Company.




We Concur:




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                                          May 4, 1995

                                  CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the
                                                                                    prepaid,
following named:


Richard A. Reep
REEP, SPOON & GORDON, P.C.
P.O. Box 9019
Missoula, MT 59807

JOHN C. SCHULTE
Attorney at Law
111 North Higgins, Suite 502
Missoula, MT 59802

                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
                                                     STATE OF MONTANA

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