                                            No. 97-001

                 V THE           L.1E COURT OF THE STzATEOF MONTANA

                                               1997


IN RE THE MARRIAGE OF

KLAS WAYNE HIGHTOWER,

               Petitioner and Respondent,

         and


BOBBI JO HIGHTOWER,

               Respondent and Appellant.



APPEAL FROM:          District Court of the Fourth Judicial Districl,
                      In and for the County oi'Missoula,
                      The Honorabie John W. Larson, Judge presiding


COUNSEL OF RECORD:

               For Appellant:

                      Keny N.Newcomer; Geiszler & Newcomer, Missoula. Montana

               For Respondent:

                      Howard Toole; Homard Toole Law Offices, Missoula, ,Montana



                                                          Submitted on Bnefs: August 7. 1997


Filed:
Justice Karla M. Gray 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 Company and West Publishing Company.

        Bobbi Jo Hightower (Bobbi Jo) appeals from the findings of fact, conclusions of law

and alternative orders entered by the Fourth Judicial District Court, Missoula County, on her

motion to modify child support and associated tax exemptions. We affirm.

        We address the following issues on appeal:

        1. Did the District Court abuse its discretion by considering inadmissible evidence?

        2. Did the District Court abuse its discretion in reiating modification of child support
to visitation or lack thereof?

      3. Did the District Court abuse its discretion in determining the dates on which
modified child support payments would begin?

       4. Did the District Court abuse its discretion in denying Bobbi Jo's rcquest to grant
her the child-related tax exemptions?

        5. Did the District Court err in denying Bobbi Jo attorney fees as the prevailing party?

                                     BACKGROUND

        The 5-year marriage of Bobbi Jo and Klas Wayne Hightower (Klas) was dissolved in

1989.    The parties' Marital and Property Settlement Agreement (Agreement) was
incorporated into the final decree and expressly determined not to be unconscionable. Bobbi

Jo and Klas were awarded joint custody of their two minor children, with Bobbi Jo keeping

the children with her for the 9-month school year and Klas having the children during the 3-

month summer vacation. Klas was to pay Bobbi Jo $300 per month child support during the

months the children resided with her and, in recognition of the need for Bobbi Jo to maintain

a residence suitable for herself and the children even when they were with Klas for the

summer, Bobbi Jo was not required to pay Klas any child support during the summer when

the children resided with him. The Agreement expressly provided that the allocation of child

support was based on the 2 to 1 disparity between Klas and Bobbi Jo's income at the time and

gave Klas the tax exemptions associated with the minor children. Finally, the Agreement
%
.




provided that if either party instituted proceedings to enforce, modify or interpret the

Agreement, the court would award reasonable attorney fees to the prevailing party.

       In 1992, Bobbi Jo and Klas stipulated to increase child support to $350 for the months

of September through May, when the children were in Bobbi Jo's custody. With regard to

the summer months, Klas agreed to pay Bobbi Jo $350 per month in child support for any

month in which the children spent 15 or more days with her and, otherwise, to pay $200 per

month for those months.

       In February of 1996, Bobbi Jo moved to modifl child support by increasing it to meet

the amount which would result from application of Montana's Uniform Child Support

Guidelines, which she estimated to be approximately $423 per month. She also sought to
claim the el-uildren as dependents for income tax purposes. As grounds for the motion, Bobbi

Jo asserted that 1) Klas had not visited or provided care for the children in accordance with

the provisions of the 1992 stipulation; 2) the cost of the children's care had increased as the

children aged; 3) the parties' increasing income required reassessment of child support to

accurately reflect the parents' income; and 4) the existing level of child support was

unconscionable "as Klas does not see the children as frequently as was expected at the time

the child support was last set." Ultimately, Bobbi Jo and Klas both requested an award of

attorney fees pursuant to the "prevailing party" provision in the Agreement.

       After a hearing on Bobbi Jo's motion to modify, the District Court found that the

parties agreed that child support would increase from $350 per month to $396 per month if

Bobbi Jo received the tax exemptions and to $418 per month if the exemptions remained

with Klas. It also found that Klas had not visited the children in 1993, 1994 or to date in

1996 and that, as a result of the lack of visitation, Bobbi Jo had incurred additional expenses

for the children's care. The court also found that the children's clothing expenses had

increased, as had Bobbi Jo's housing expenses, although the latter increase resulted in large

part from her purchase of a new home. with her husband. The court further found that the

paities agreed that visitation between Klas and the children was important and desired by all

concerned. Finally, the District Court found that, if visitation did not occur between Klas and

the children for three of the last four years (that is, for three years during the 1993 through

1996 time frame), the absence of visitation would amount to a change in circumstances so
substantial and continuing as to render the existing child support and allocation of tax

exemptions unconscionable.

       The court then entered alternative orders, depending on whether or not visitation

occurred before the end of 1996. If visitation occurred, child support would increase to $418

per month retroactive to September 1, 1996, Klas would retain the tax exemptions relating

to the minor children, and each party would be responsible for his or her attoincy fees. In

the alternative, if no visitation occurred, child support would increase to $396 per month

retroactive to April 1, 1996, Bobbi Jo would receive the tax exemptions and Bobbi Jo would

be awarded reasonable attorney fees. Bobbi So appeals.

        1. Did the District Court abuse its discretion by considering inadmissible evidence?

       In August of 1996, Klas made an offer ofjudgment to Bobbi So pursuant to which

child support would increase to $41 8 per month and he would retain the tax exemptions. She

rejected the offer. Unbeknownst to Bobbi So, Klas then filed the offer of judgment. Bobbi

Jo contends on appeal that the District Court considered the offer of judgment, to her

prejudice, and that the court's order should be vacated as a result. We disagree.

       Rule 68, M.R.Civ.P., provides that an accepted offer ofjudgment may be filed, but

a rejected offer is deemed withdrawn and evidence thereof is not admissible. It is clear, and

Klas concedes, that the offer ofjudgment was improperly filed.

       It is not clear, however, that the District Court considered the offer ofjudgment. In

contending that it did so, Bobbi Jo points to the court's statement at the outset of its findings,
conclusions and order that it had made a "thorough review of the file." We observe,

however, that the District Court's findings, conclusions and alternative ordcrs do not

specifically reference the offer of judgment. Furthermore, the judge in a matter trted to the

court is presumed to have disregarded inadmissible evidence in making a decision. See, e g.,

Matter of M.L.H. (1986), 220 Mont. 288,293,715 P.2d 32, 35 (eitat~ons
                                                                    omlttcd). Finally,

while Bobbi Jo contends that the District Court's alternative orders I ) making the child

support increase to $418 retroactive to September 1, 1996, and requiring the parties to pay

their own attorney fees in the event visitation occurred before December 3 1, 1996; or 2)

increasing child support to $396 retroactive to April 1, 1996, with an award of attorney fees

to Bobbi Jo, "tracked" Klas' offer of judgment and lacked any other rationale, the record

belies her contention. The offer of judgment neither mentioned any starting date for the

offered increase ln c h ~ l dsupport, much less a September 1, 1596. date, nor addressed

attorney fees. Moreover, nhile    5 40-4-208(1), MCA, prevented     the Distrtct Court from

modifling the child support obligation retroactive to a date prior to late February of 1996,

when Bobbi Jo filed her motion to modify, Bobbi Joe cites to no authority under which thc

District Court was required to make its alternative orders regarding the amount of child

support retroactive to the same date. District courts haw substantial discretion in these

regards.

       We conclude that Bobbi Jo has not established an abuse of discretion by the District

Court in this regard.
       2. Did the District Court abuse its discretion in relating modification of child support
to Klas' visitation or lack thereof?

       To obtain a modification of child support where the original decree contained support-

related provisions, the n~oving
                              party nmst make a "showing of changed circumstances so

substantial and continuing as to make the [earlier] terms unconscionable." Section 40-4-

208(2)(b)(i), MCA. We review the overall decision on modification of child support to

determine whether the court abused its discretion. In re Marriage of Kovash (1995), 270

Mont. 517, 521, 893 P.2d 860, 863 (citation omitted).

       Bobhi Jo advances a number of unrelated assertions of error with regard to the District

Court's disposition of her motion to modify under this issue. First, she correctly cites to 3

40-4-204(3)(a), MCA, and our cases thereunder, for the proposition that, when a district

court modifies child support, it generally n w t apply the Uniform Child Support Guidelincs.

We note in this regard the District Court's express finding that the parties agreed that, in the

event modification was warranted, the proper amount would be $396 per month if Bobbi Jo

were allocated the tax exemptions and $418 per month if Klas retained the exemptions.

Bobbi Jo does not challenge this finding and we conclude that it is supportcd by substantial

evidence and not otherwise clearly erroneous.

       Next, Bobbi Jo correctly contends that, in determining whether substantial and

continuing changed circumstances have made the original child support unconscionable,

district courts typically examine the relative positions of the parties. The District Court
clearly did so here, finding that Bobbi Jo's annual income had increased significantly from

$10,500 at the time of the dissolution to approximately S25,000 in 1995, while Klas' annual

income had increased to approximately S28,000 In 1995, thus virtually eliminating the

roughly 2 to 1 income disparity between Klas and Bobbi Jo at the time of the dissolution.

Certainly, these parties' relative financial positions do not require a finding that the existing

child support was unconscionable. In any event, and notwithstanding its finding that

unconscionability did not yet exist, the District Court increased child support to the amount

the parties agreed would be warranted under the Uniform Child Support Guidelines if

unconscionability were determined to exist. (Klas did not cross-appeal from this increase in

child support.)

       Finally, Bobbi Jo contends that the District Court abused its discretion by conditioning

the amount of child support on Klas' exercise of, or failure to exercise, visitation. It is true

that, as a general rule, visitation and support are independent of each other and the child

support obligation cannot be conditioned on exercise of the right of visitation. See. e.g., In

rc Marriage of Cox (1?94), 266 Mont. 67, 72, 878 P.2d 903, 906; Fitzgerald v. Fitzgerald

(1?80), 190 Mont. 66, 68, 618 P.2d 867. 868.

       Here, however, the child support to which the parties stipulated in 1992--and which

Bobbi Jo sought to have increased v1a her motion to modify--was directly related to tlic

amount of visitation being exercised by Klas. Similarly, Bobbi Jo's 1996 motion to modlfy

explicitly was premised on Klas' failure to visit or care for the children as frequently as had
been contemplated at the time of the 1992 stipulation. Thus, in this case, the parties had

structured Klas' child support obligation to relate directly to Has' visitation of thc children

and Bobbi Jo's motion to modify was based on that relationship.

       Under these unique circumstances, we conclude that the District Court did not abuse

its discretion in conditioning the amount of child support on Klas' exercise of, or failure to

exercise, visitation.

      3. Did the District Court abuse its discretion in determining the dates on which the
modified child support payments would begin?

       As set forth above, the District Court's alternative orders provided for increased child

support in the amount of $418, retroactive to September 1, 1996, if visitation occurred before

the end of the year, and increased child support to $396, retroactive to April 1, 1996, if

visitation did not occur. Bobbi Jo contends that the court abused its discretion in these

regards and that the effective date of either modified child support amount necessarily was

February 28, 1996, the date of her motion to modify. We disagree.

       As discussed above, the District Court did not determine that the existing child

support arrangements were unconscionable.            Since modification requires such a

determination (see 5 40-4-208, MCA), the court properly could have refused to increase

child support.

       Furthermore, while 5 40-4-208(1), MCA, prevents a diskiet court from modifying a

decree as to child support as to installments accruing prior to actual notice of a motion for
modification, it does not require a court, as a matter of la\\, to make a modification effecthe

on the date a motion to modify is filed. Nor do the cases on which Bohbi Jo relies support

her contention in this regard.

       We conclude that the District Court did not abuse its discretion in determining the

dates on which the modified child support payments would begin.

       4. Did the District Court abuse its discretion in denying Bobbi Jo's request to grant
her the child-related tax exemptions?

       In the event of visitation by the end of 1996, the District Court set child support at

$418 per month and left the tax exemptions relating to the minor children with Klas. Bobbi

Jo argues that the court erred in doing so.

       As discussed above, the District Court found that the "parties agree that the level of

support to be paid by Klas would increase from the existing $350 per month . . . to $396 per

month if Bobbie [sic] Jo is granted the exemptions and to $418 per month if the depcndent

exemptions remain with Klas." Bobbi Jo did not challenge that finding and we concluded

above that the finding is not clearly erroneous. Bobbi Jo having agreed to increased support

amounts corresponding to which party was granted the tax exemptions, and the District Court

having acted on that agreement, Bobbi Jo cannot now be heard to argue for the larger child

support amount and allocation of thc tax exemptions to her. We will not put the trial court

in crror for an action in which Bobbi Jo participated and acquiesced. See Hando v. PPG

Industries, Inc. (1995). 272 Mont. 146, 150. 900 P.2d 281,283 (citation omitted).
       We conclude that the District Court did not abuse its discretion in denying Bobbi Jo's

request that she be granted the child-related tax exemptions.

       5. Did the District Court err in denying Bobbi Jo attorney fees as the prevailing party?

       The District Court concluded that, in the event visitation occurred before the end of

1996, child support would increase to $41 8 per month, Klas would retain the tax exemptions

and neither party would be the prevailing party for purposes of an award of attorney fees.

Bobbi Jo contends that the District Court erred in denying her attorney fees when the

Agreement and decree required an award of reasonable attorney fees to the "prevailing party"

in any action to modify. We disagree.

       An award of attorney fees in a family law ease is generally within the district court's

discretion. In re Mamage of Cards (1994), 263 Mont. 377, 385, 868 P.2d 615, 620. Where

an agreement clearly provides for attorney fees to the prevailing party, however, the district

court is bound by its terms. Doig v. Caseaddan (Mont. 1997), 935 P.2d 268,272, 54 St.Rep.

263, 266 (citation omitted). The court's determination regarding the prevailing party is a

conclusion of law and we review conclusions of law to determine whether the interpretation

of the law is correct. Doig,935 P.2d at 272 (citation omitted).

       No single factor is dispositive on the question of which party is the prevailing party.

Doig 935 P.2d at 272 (citation omitted). In the present case, the relief requested, the

showing necessary to warrant the requested relief, and the relief granted are appropriate
considerations in determining whether the District Court erred in concluding that neither

party was the prekailing party.

       Bobbi Jo's motion to modify child support sought 1) a determination that, pursuant

to 5 40-4-208(2)(b)(i), MCA, substantial and continuing changed circumstances made the

existing child support terms unconscionable; 2) a resulting increase in child support to

approximately $423 per month, the amount she estimated would be required under the

Uniform Child Support Guidelines; and 3) reallocation of the tax exemptions to her. The

District Court did not make the requisite determination of unconscionability, did increase

child support to the approximate amount Bobbi Jo had requested, and refused to reallocate

the tax exemptions to Bobbi Jo. Thus, while Bobbi Jo received an increase in child support,

she did not make the showing required by 5 40-4-208(2)(b)(i), MCA; nor did she prevail on

her request for the child-related tax exemptxons.

       Bobbi Jo cites to no authority under wl~ich, circumstances similar to these, she is
                                                  in

the "prevailing party" as a matter of law. Indeed, most of her arguments relate to

discretionary awards of attorney fees under 5 40-4-1 10, MCA, and our cases interpreting that

statute. In this regard, we need observe only that Bobbi Jo's request for attorney fees was

prcmised on the Agreement and decree, rather than on 5 40-4-1 10, MCA, and, therefore, the

statute and cases thereunder on which Bobbi Jo relies have no application herc.

       On the basis of the totality of the considerations discussed above, we hold that the

Dlstrict Court did not err in concluding that neither party was thc prevailing party and, on
that basis, in refusing to award Bobbi Jo attorney fees as the prevailing party under the

Agreement and decree.

      Affirmed.




We concur:




               Justices
                                        September 8, 1997


                                  CERTIFICATE OF SERVICE

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

KERRY N. NEWCOMER, ESQ
GEISZLER & NEWCOMER
619 SW HIGGINS SUITE I(
MISSOULA MT 59803

HOWARD TOOLE
ATTORNEY AT LAW
126 EAST BROADWAY SUITE 25
MISSOULA MT 59802



                                                    ED SMITH
                                                    CLERK OF THE SUPREiW COURT
                                                    STATE OF MON-TANA
