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                                                               No. 00-605

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                            2001 MT 173N


                                                         In re the Marriage of

                                             BETH LAUREN MORGENSTERN,

                                  n/k/a BETH LAUREN MORGENSTERN-KOUBA,

                                        Petitioner, Respondent, and Cross-Appellant,

                                                                     and

                                                           MARK GRAMS,

                                                    Respondent and Appellant.

                          APPEAL FROM: District Court of the Eleventh Judicial District,

                                               In and for the County of Flathead,

                                   The Honorable Stewart E. Stadler, Judge presiding.

                                                    COUNSEL OF RECORD:

                                                             For Appellant:

                                          Mark Grams (pro se), Littleton, Colorado

                                                            For Respondent:

                Gail H. Goheen, Koch, Johnson, Weber & Goheen, PLLP, Hamilton, Montana

                                               Submitted on Briefs: April 5, 2001
                                                  Decided: August 23, 2001


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                                                                    Filed:

                                    __________________________________________

                                                                    Clerk



Justice Jim Regnier delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating
Rules, the following decision shall not be cited as precedent but shall be filed as a public
document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.

¶2 Mark Grams appeals from the Findings of Fact, Conclusions of Law and Judgment
entered by the Eleventh Judicial District Court, Flathead County. Beth Lauren
Morgenstern-Kouba (formerly Beth Lauren Morgenstern) cross-appeals. The issues
presented can be summed up as one dispositive issue: Did the District Court err in its
Findings of Fact, Conclusions of Law and Order?

¶3 We affirm.

                                                          BACKGROUND

¶4 Beth Lauren Morgenstern-Kouba (formerly Beth Lauren Morgenstern) and Mark
Grams dissolved their marriage in Riverside, California, on November 9, 1992. The court
awarded the parties joint custody of their children, Jamie and Joel Morgenstern-Grams,
with physical custody awarded to Beth. The court further ordered that Mark pay $1,222.00
per month in child support. At the time of the dissolution of the marriage, Mark resided in
Colorado. Beth, primary physical custodian of the children, subsequently moved to
Kalispell, Montana, in 1993.

¶5 In 1995 Beth and Mark negotiated back child support due and owing to Beth. On May
30, 1995, the matter was resolved by a payment of $2,541.50 from Mark to Beth. Because
neither party resided in California, Beth filed the California dissolution judgment as a
foreign decree in the Eleventh Judicial District Court, Flathead County, on September 13,


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1995. Mark was not notified of the filing until August 1997.

¶6 Following the mailing of the notice in August 1997, Beth learned that Mark had
disappeared and was suspected of criminal activity relating to funds missing from his
former employer. On October 15, 1997, Beth sought a modification of the original
parenting plan. Notice was sent to Mark's last known address but he failed to appear. On
November 5, 1997, Beth obtained a Final Parenting Plan which substantially terminated
Mark's visitation and related rights, continued his responsibilities to provide child support
as set by the California Superior Court and required a monthly payment for medical
insurance. Although Mark had regular contact with his children prior to August 1997,
there has been no contact since then. Mark has not paid child support since September
1997.

¶7 In the Spring of 1999, Mark was arrested for federal felony criminal charges relating to
monies missing from his former employer. On October 18, 1999, Mark filed a motion pro
se to modify his child support responsibilities. Mark contended that a modification should
be retroactive to November 5, 1997, when the original California parenting plan was
modified by the District Court of Flathead County. At the time of the filing, the past due
child support owed to Beth from October 1, 1997, through October 15, 1999, totaled
$30,550.00 together with interest on that amount to May 30, 2000, of $5,051.10. The past
due medical payments from December 1, 1997, through October 18, 1999, totaled
$2,875.00 together with interest on that amount to May 30, 2000, of $483.64. The full
amount past due and owing to Beth prior to Mark's motion to modify, including interest to
the date of the District Court trial, was $38,959.74.

¶8 Trial commenced on May 30, 2000. The District Court determined that Mark's
circumstances had substantially changed and the monthly support ordered was excessive.
On June 23, 2000, the District Court issued its Findings of Fact, Conclusions of Law, and
Order. The District Court entered judgment for unpaid child support and medical
insurance cost plus interest, and authorized a qualified domestic relations order requiring
the transfer of any pension or retirement plan held for Mark's benefit to satisfy Mark's
arrearages. The court reduced the amount to be paid monthly from $1,222.00 to $504.00
per month effective November 1, 1999. The court further concluded that, due to
uncertainties of both parties' income, the support obligation should be reviewed and
recalculated on an annual basis at the request of either party.

¶9 The District Court also implemented guidelines for reestablishment of the parental


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relationship, requiring that reestablishment of Mark's contact with his children be
accomplished under the guidance, supervision, and schedule of a professional person
mutually chosen by Beth and Mark. Upon recommendation of the professional person,
Mark could request to reestablish parental rights as set forth in the original parenting plan
approved by the California Superior Court. The court disallowed Mark's claim for a
judgment against Beth relating to a house they co-owned in California and awarded
attorney's fees to Beth. Mark appeals and Beth cross-appeals.

                                                  STANDARD OF REVIEW

¶10 We review a district court's findings of fact and conclusions of law to determine
whether the court's findings of fact are clearly erroneous and whether its conclusions of
law are correct. We review the court's overall decision regarding modifications to child
support to determine whether the court abused its discretion. In re Marriage of Kovash
(1995), 270 Mont. 517, 521, 893 P.2d 860, 862-63.

                                                            DISCUSSION

¶11 Did the District Court err in its Findings of Fact, Conclusions of Law and Order?

¶12 Mark contends the District Court made various errors in its decision. First, Mark
argues that the District Court erred in not utilizing his proposed parenting plan which
would have required that the children spend substantially more time with Mark. Beth
contends that the District Court did not err in failing to accept Mark's proposed parenting
plan because a district court is bound to determine any parenting issues based on the best
interests of the children. We agree.

¶13 Our standard of review for a district court's award of child custody is whether the
district court's findings are clearly erroneous. In re Marriage of Baer, 1998 MT 29, ¶ 18,
287 Mont. 322, ¶ 18, 954 P.2d 1125, ¶ 18. When the findings are supported by substantial
credible evidence, we will affirm the district court's decision unless a clear abuse of
discretion is shown. In re Marriage of Baer, ¶ 18. A district court shall determine child
custody matters in accordance with the best interests of the child. Section 40-4-212, MCA.
Amendments to a parenting plan also are determined by the best interests of a child.
Section 40-4-219, MCA. Thus, Mark's argument that the District Court is required to
adopt his proposed custody plan fails because the District Court must ultimately look to
the best interests of the children. In addition, this Court will not normally substitute its


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judgment for that of the trier of fact concerning the "delicate" issue of child custody
because the trial court is in the best position to observe witnesses and determine their
credibility and character. Keil v. Ferguson (1990), 246 Mont. 344, 347, 805 P.2d 1334,
1336.

¶14 Based on the evidence presented, we see no abuse of discretion on the part of the trial
court in failing to adopt Mark's parenting plan. Mark had no contact with his children for a
substantial period of time as a result of his disappearance and evasion of federal
authorities. Under the circumstances, we cannot conclude the court's method of resuming
contact was erroneous.

¶15 Mark also contends that the District Court erred in not awarding him monies owed for
missed mortgage payments under a valid California dissolution judgment. Beth responds
that the District Court properly determined that pursuant to the language of the California
judgment, Mark was to receive credit for missed mortgage payments on a house co-owned
by them only to the extent that there was equity in the home sale from which a credit could
be taken for missed mortgage payments.

¶16 Under Montana law, a foreign judgment is conclusive between the parties to the
extent that it grants or denies recovery of a sum of money. See §§ 25-9-603 and -604,
MCA. The California Superior Court, in dividing the marital estate of the parties, issued
the following Order:

        2. By stipulation the Parties agree as follows:

        A. The house shall be sold and the proceeds, if any, divided equally between the
        parties. Husband shall have a credit for any mortgage payments missed by Wife
        prior to sale of the house."

¶17 Shortly after dissolution of their marriage, Beth filed for protection in bankruptcy and
listed both the home and the lender. Within seven months, Beth vacated the home and
moved to Montana. At the time of the dissolution, the mortgage payments had not been
made for several months by either party. Upon foreclosure, the debt for both Beth and
Mark was discharged and there was no equity to be distributed.

¶18 After examination of the language of the agreement, we conclude that the District
Court correctly determined that Mark merely had a right to claim a greater share of the


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proceeds upon sale if he were to show that his share was diminished because of Beth's
failure to make mortgage payments. Mark has no right to recover a judgment as no profits
were realized from the foreclosure and subsequent sale of the house.

¶19 Mark asserts that the District Court erred in determining its award of child support for
the period from November 1997 to October 1999. Beth contends that the District Court
properly confirmed the California court's prior orders for support of the children and
merely added a health care provision to provide for health care coverage after Mark was
no longer providing health care coverage for the children. We agree.

¶20 Mark further argues that payments he claims to have made for the childrens' non-court
ordered medical insurance should be offset against his child support obligations. Mark
also contends that he should be entitled to a credit against child support for mortgage
payments he made on the house in California. Any payments made to the children or third
parties on their behalf cannot be considered child support owed and cannot be offset
against any child support obligations owed. Child support is a sum of money paid to the
custodial parent to be used for care of the child. Willoughby v. Loomis (1994), 264 Mont.
44, 51, 869 P.2d 271, 275. See also Williams v. Budke (1980) 186 Mont. 71, 75, 606 P.2d
515, 517. Child support is for the benefit of the children. In re Marriage of Ryan (1989),
239 Mont. 100, 103, 778 P.2d 1389, 1390. No proof has been presented that indicates that
the mortgage payments were intended to supplant child support payments. See In re
Marriage of Hadford (1981), 194 Mont. 518, 527, 633 P.2d 1181, 1186.

¶21 Mark argues that the District Court erred in determining the appropriate level of child
support from November 1999 through the present. In her cross appeal, Beth contends that
the District Court erred in determining the appropriate level of child support and requests
this Court implement a higher required payment. The District Court is required to apply
the Child Support Guidelines in effect when modifying child support. Section 40-4-204(3)
(a), MCA. We see no evidence that the District Court erred in its determination. The
District Court provided for annual re-evaluation of the financial status of both parties. It
has been approximately one year since the final decree and the District Court is the proper
venue for any claim regarding a change in income of either party.

¶22 Mark contends that the District Court erred in awarding legal fees to Beth and denying
legal fees to himself. After consideration of the financial resources of each party, a district
court may order reasonable fees and costs to be assessed to the opposing party. Section 40-
4-110, MCA. The awarding of attorney fees is clearly permissive under this statute, and


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the appropriate standard for reviewing a district court decision to award attorney fees
under § 40-4-110, MCA, is whether the court abused its discretion in refusing to award
such fees. See In re Marriage of Smith (1990), 242 Mont. 495, 503, 791 P.2d 1373, 1378.
Here, the District Court noted that both parties faced financial hardship in paying their
significant legal fees. The District Court further noted that the current action was based on
Mark's disappearance, the federal criminal charges pending against him, his failure to pay
child support and stay in contact with his children, and his eventual arrest. As such, the
District Court found it appropriate to assess reasonable attorney fees against Mark. Due to
the nature of the claim and the large number of filings required, the District Court also
concluded that the attorney fees and costs claimed by Beth's attorney were reasonable. We
conclude that Mark has shown no abuse of discretion on the part of the District Court in
awarding attorney's fees and costs to Beth. Under the same rationale, we also award Beth
attorney fees and costs incurred on appeal.

¶23 Affirmed and remanded for a determination of attorney's fees and costs incurred in this
appeal.

                                                         /S/ JIM REGNIER

                                                              We Concur:

                                                     /S/ KARLA M. GRAY

                                                    /S/ JAMES C. NELSON

                                                    /S/ PATRICIA COTTER

                                                             /S/ JIM RICE




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