Nash v


                                                   Nash v. Frank
                                                Decided Jan. 8, 1998
                                        (NOT TO BE CITED AS AUTHORITY)

                                                               No. 97-522

                       IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                              1998 MT 3N

                                                      JENA MARIE NASH,

                                                        Petitioner/Appellant,

                                                                     vs.

                                                     DEAN CRAIG FRANK,

                                                     Respondent/Respondent.

                    APPEAL FROM: District Court of the Eighteenth Judicial District,

                                              In and for the County of Gallatin,

                                 The Honorable Thomas A. Olson, Judge presiding.

                                                   COUNSEL OF RECORD:

                                                            For Appellant:

                                   Suzanne C. Smith, Marshall & Smith, Bozeman,

                              Montana; Peggy Probasco, Child Support Enforcement

                                                    Division, Butte, Montana

                                                           For Respondent:

                                     Dean Craig Frank, Billings, Montana (pro se)



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                                          Submitted on Briefs: December 23, 1997

                                                     Decided: January 8, 1998

                            Justice James C. Nelson 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 This is an appeal from the Eighteenth Judicial District
Court's Findings of Fact, Conclusions of Law and Order entered July
14, 1997, on the motions for modification of child support and for
contempt filed by Jena Marie Nash (Jena) against Dean Craig Frank
(Dean) on April 3, 1997. We affirm.

                 BACKGROUND
¶3 On June 29, 1987, Dean was ordered to pay child support of $75
per month to Jena for the parties' minor child, M.N., born
September 29, 1985. This sum was to be paid by the 15th day of
each month in a timely manner. On June 12, 1996, the Montana Child
Support Enforcement Division (CSED) filed a notice of statutory
interest based on services it was providing to Jena. Jena's motion
for modification of child support and supporting affidavit alleged
that her circumstances had changed for the worse and that Dean's
circumstances had changed for the better thus justifying him paying
$245 per month child support. Her motion for contempt alleged that
Dean was $52.41 in arrears on his support obligation. Jena's
motions were heard on May 27, 1997. The parties appeared and
testified.

¶4 Based upon the evidence presented at the hearing and upon the
record, the District Court found that Dean was, in fact, in arrears
$52.41 in his support obligation. Dean conceded this, but
testified that the arrearage was due to a bookkeeping error between

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the states of Montana and California. The court subsequently
determined that, according to CSED, Dean was current in his child
support obligation through June 1997. Accordingly, the District
Court held Dean in contempt, but also found that he had purged
himself of the contempt by bringing his child support current.

¶5 The court also found that Dean was providing $100 per month
child support for another child and that he was working 36 hours
per week as a critical care aide for St. Vincent's Hospital in
Billings, earning $8.17 per hour during the summer. The court
found that Dean's hours were variable. The court also found that
Dean was attending nursing school at Montana State University full
time and that during the school year he did not work but lived on
grants and student loans netting him $1,200 per semester. The
District Court concluded that the Child Support administrative
regulations, specifically 46.30.1513(2)(d)(iii), ARM, did not
require that the court impute full time hours to a student
currently engaged in and making reasonable progress towards an
educational program which will provide greater economic benefit to
him and his children. Accordingly, based upon this evidence and
record, the court determined that Jena had failed to show a change
in circumstances justifying modification of Dean's child support
obligation. The court also denied Jena's request for attorney fees
and costs.

                  DISCUSSION
¶6 On appeal Jena contends that the District Court erred in
re-calculating child support; in refusing to hold Dean in contempt
for being in arrears in his child support; and in refusing to award
her attorney fees and costs.

¶7 Our standard of review on the support modification issue is
set out in In re Marriage of Widhalm (1996), 279 Mont. 97, 100, 926
P.2d 748, 750:

          In child support modification cases, this Court will

   review a district court's findings of fact to determine

   whether they are clearly erroneous. We will review a

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   district court's conclusions of law to determine whether

   the interpretation of the law was correct. We will

   review a district court's overall decision regarding

   modification of child support to determine whether the

   court abused its discretion. [Citations omitted.]

"This Court's review of contempt proceedings is limited to whether
the lower court had jurisdiction to issue the contempt order and
whether there is evidence to support the order." Gillispie v.
Sherlock (1996), 279 Mont. 21, 24, 929 P.2d 199, 200 (citation
omitted). "A district court's determination regarding attorney's
fees will not be disturbed in the absence of an abuse of
discretion." In re Marriage of Walls (1996), 278 Mont. 413, 420,
925 P.2d 483, 487 (citation omitted).

¶8 We have carefully reviewed the record and transcript of this
proceeding, and, applying these standards of review, we find no
reversible error in the trial court's decision. The court's
findings of fact are based upon substantial evidence and are not
clearly erroneous; its legal conclusions are correct; we find no
abuse of discretion in its overall decision; and we find no abuse
of discretion in the court's refusal to award Jena attorney fees
and costs where she did not obtain the relief which she sought.

¶9 On the support modification issue, Jena argues that, while he
was a student at the time of the hearing, Dean is no longer a
student. Even assuming, arguendo, that allegation is true, it is
a matter outside of the record and evidence presented to the
District Court and was not before the court when it made its
decision. Accordingly, we will not hold the trial court in error
on that basis. Jena also argues that, even though he was a
student, the court should have imputed income to Dean pursuant to
46.30.1513, ARM, for willful failure to support his son. However,
aside from the hearsay testimony of Dean's girlfriend to the effect
that Dean told her that he kept wages paid by his father in his

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father's account so as to avoid paying child support, there is no
other evidence supporting Jena's allegation. More importantly, it
was within the court's purview whether to believe this testimony or
not. Additionally, while Jena argues in general terms that M.N. is
older and needs more support, she failed to present any evidence as
to the specific expenses justifying the requested
increase--assuming that Dean was able to pay increased support,
which the court concluded he was not.

¶10 In this regard, Dean presented Child Support Guideline
Worksheets showing him owing a net monthly support obligation of
$41 per month, based upon his income. Given that his support
obligation had been previously set at $75 per month, the court's
decision not to increase Dean's support obligation is consistent
with the Guidelines. Moreover, the court correctly refused to
impute income to Dean since he was a full time student engaged in
and making reasonable progress towards an educational program
(nursing) which will provide greater economic benefit to him and
his children. 46.30.1513(2)(d)(iii), ARM. We find no abuse of
discretion in the trial court's overall decision on this issue.

¶11 As to the contempt issue, we conclude that the District Court
did not err. Dean conceded that he was $52.41 in arrears, but
maintained that this was because of a bookkeeping error between the
states of Montana and California. Importantly, he testified that
he would pay off the arrearage from his employment, and according
to the court, he did so by the time the court issued its decision.
Contrary to Jena's contention that it failed to grant her motion
for contempt, the court did find Dean in contempt, but concluded
that, by paying the arrearage, he purged himself of the contempt.
We find no error in the court's decision on this matter.

¶12 Finally, under Sec. 40-4-110, MCA, the court has discretion to
award attorney fees and costs. Given that Jena did not prevail in
obtaining the relief which she sought, we find no abuse of
discretion in the court's refusal to award attorney fees and costs
in this case.

¶13 Affirmed.



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                           /S/ JAMES C. NELSON
We Concur:

/S/   J. A. TURNAGE
/S/   W. WILLIAM LEAPHART
/S/   TERRY N. TRIEWEILER
/S/   KARLA M. GRAY




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