                            No.     95-552
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1996




APPEAL FROM:   District Court of the Seventh Judicial District,
               In and for the County of Richland,
               The Honorable Richard G. Phillips, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Phillip N. Carter, Attorney at Law,
               Sidney, Montana
          For Respondent:
               Peter 0. Maltese, Attorney at Law,
               Sidney, Montana


                                  Submitted on Briefs:   July 18, 1996
                                              Decided:   August 27, 1996
Filed:



                                  CYerk
Justice Charles E. Erdmann delivered the opinion.of the Court.
     Appellant Carrie Dishon appeals from the orders issued by the
Seventh Judicial District Court, Richland County, modifying an
award of child support and denying her motion for attorney fees.
We affirm in part and reverse in part.
     The issues on appeal are as follows:
     1.    Did the     District     Court   abuse     its discretion when
calculating Trevor Dishon's child support obligation?
     2.    Did the District Court err in denying Carrie's request
for attorney fees?
                                    FACTS
     Trevor and Carrie were married on July 12, 1991, in Sidney,
Montana.   Prior to their marriage, Carrie gave birth to their son
Cody on April 24, 1991.           On December 1, 1993, Trevor filed a
Petition for Dissolution of Marriage,               which   was granted on
November 15, 1994.     The divorce decree provided that Trevor would
pay $43 per month in child support until he finished school and was
employed, at which time the child support award could be reviewed.
     In May 1995, Trevor graduated from Montana State University
with a degree in construction engineering and accepted employment
in Las Vegas.   Upon discovering that Trevor was employed in Nevada,
Carrie filed a motion to modify child support.          Trevor did not file
a response to the motion, nor did he personally appear.             At the
hearing,   Trevor's   attorney appeared and informed the court that
Trevor recognized his obligation for the increased child support


                                      2
but was not present due to the expense of traveling to Sidney and
the loss of wages that he would incur for that period.
     Trevor submitted a financial affidavit to the court and in
that affidavit he marked two variances which he believed would
justify variation from the strict application of the child support
guidelines.   The variances were for the cost of living differential
based on the geographic location of the parties and for the cost of
long distance visitation.   The   court, in its order modifying child
support, stated that it found insufficient evidence to grant the
variance for cost of living differential, but took judicial notice
of the distance between Las Vegas and Sidney and granted a $73 per
month variance for long distance visitation.
     In a separate order,    the court denied Carrie's motion for
attorney fees, noting that it had just increased child support from
$43 per month to $425 per month, and that both parties were equally
capable of paying attorney fees.       Carrie appeals from the order
modifying child support and from the order denying her an award of
attorney fees.
                             ISSUE 1
     Did the District Court abuse its discretion when calculating
Trevor Dishon's child support obligation?
     In child support modification cases, we review a district
court's findings of fact to determine whether they are clearly
erroneous.    In re Marriage of Kovash (1995), 270 Mont. 517, 521,
893 P.2d 860, 862-63.    A district court's conclusions of law are


                                   3
reviewed to determine whether the court's interpretation of the law
was    correct.   Kovash,   893 P.2d at 863.   Finally,   we review a
district court's overall decision on modification of child support
awards to determine whether the court abused its          discretion.
Kovash,    893 P.2d at 863.     See also In re Marriage of Brandon
(1995),    271 Mont. 149, 152, 894 P.2d 951, 953.
         Child support awards and modifications must be determined
under the Montana Child Support Guidelines.    Section 40-4-204, MCA,
provides in part:
       The amount determined under the guidelines is presumed to
       be an adequate and reasonable support award, 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.
In order to rebut this presumption, the party seeking the variance
from the guidelines must present competent evidence showing that
the application of the guidelines would be unjust or inappropriate.
In re Marriage of Welch (1995), 273 Mont. 497, 504, 905 P.2d 132,
136;   Platt v. Platt (1994), 267 Mont. 38, 41, 881 P.2d 634, 636.
We have previously stated that a bare claim of entitlement to a
variance is insufficient.     m, 905 P.2d at 136.
       Trevor checked the variance for the cost of long distance
visitation on his financial affidavit, but he did not, as required
by the affidavit, provide any factual details in support of his
claim.    He did not appear at the hearing and his attorney did not
present any evidence as to what the visitations may cost Trevor or
how often they may occur.     The record is devoid of any evidence of

                                   4
prior or projected travel expenses for Trevor's long distance

visitation.    Without any evidence as to cost or occurrence, all

Trevor presented to the District Court was a bare claim of

entitlement.
     The District Court took judicial notice of the distance

between Las Vegas and Sidney,     as permitted by Rule 201 of the

Montana Rules of Evidence, and awarded Trevor a monthly variance of

$73. Although the court did not err by taking judicial notice of

the distance, that alone does not constitute clear and convincing

evidence that the application of the guidelines was unjust to

Trevor or was inappropriate in his situation.   Welch, 905 P.2d 132.

Further,   since the District Court had no evidence as to cost or

occurrence of projected visitation, the $73 per month variation was

based on speculation.    A district court cannot base child support

upon speculation.    In re Marriage of Cox (1994), 266 Mont. 67, 73,

878 P.2d 903, 907.      We therefore hold that the District Court

abused its discretion in granting a variance for Trevor from the

child support guidelines in the amount of $73 per month and reverse

the District Court on that issue.

                               ISSUE 2

     Did the District Court err in denying Carrie's request for

attorney fees?

     The District Court denied Carrie's motion for attorney fees

pursuant to 5 40-4-110, MCA.   This section provides that the court

may order a party to pay a reasonable amount for attorney fees


                                  5
after considering the financial resources of both parties.       Section
40-4-110, MCA.     We review a district court's decision not to award
attorney fees under 5 40-4-110, MCA, to determine whether the court
abused its discretion in refusing to award such fees.               In re
Marriage of Smith (1990), 242 Mont. 495, 503, 791 P.2d 1373, 1378;
In re Marriage of Nalivka (1986), 222 Mont. 84, 91, 720 P.2d 683,
688.
       Carrie argues that Trevor's failure to file a response to her
motion for attorney fees is an admission that her motion is well
taken.     Although Rule 2(b) of the Uniform District Court Rules
provides that a failure to file an answer brief within ten days
shall be deemed an admission that the motion is well taken, it does
not require the district court to grant the unanswered motion.
Maberry v.    Gueths (1989), 238 Mont. 304, 309, 777 P.2d 1285,
1288-89.
       Pursuant to 5 40-4-110, MCA, the district court must consider
the parties' financial resources in determining whether an award of
attorney   fees   is   appropriate.   Nalivka,   720 P.2d at 688.     The
District Court had both Trevor's          and Carrie's current financial
affidavits and the record indicates that the court was well aware
of their respective financial resources.          After considering this
information, the court concluded that neither party was in a better
position to pay attorney fees.        Although the record reflects that
Carrie was not in as strong of a financial position as Trevor, the
financial affidavit filed by Trevor,         along with the increase in


                                      6
child support ordered by the District Court, indicates that he also
had little discretionary income.      We conclude that the District
Court did not abuse its discretion when it denied Carrie's motion
for attorney fees.
        The $73 per month variance granted by the District Court is
reversed and the District Court's order is modified to reflect
child support     at the amount of $498 per month.        We hereby
incorporate the terms of the District Court's order that the
payment of the child support at the amount of $498 per month shall
be retroactive to July 19, 1995, and that the arrearage shall be
paid at a rate of $150 a month until paid in full.      The District
Court is affirmed as to the denial of Carrie's request for attorney
fees.
        Affirmed in part, reversed in part.



                                              Justice
                                          ;’




                                         August 27, 1996


                                  CERTIFICATE OF SERVICE

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

Phillip N. Carter
 Attorney At Law
 111 Second Avenue S.W.
 Sidney MT 59270

Peter 0. Maltese
Attorney At Law
P.O. Box 969
Sidney MT 59270-0969



                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
                                                     STATE OF MONTANA


                                                     Deputy
