                              NO.    94-337
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1994


IN RE THE MARRIAGE OF
MICHAEL T. MEYER,
           Petitioner and Respondent,

     and                                                 DEC 13 1994
DEBORAH M. (MEYER) LOPEZ,
           Respondent and Appellant.



APPEAL FROM:    District Court of the Tenth Judicial District,
                In and for the County of Fergus,
                The Honorable Peter L. Rapkoch, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
                Timothy J. O'Hare, Attorney at Law,
                Lewistown, Montana
           For Respondent:
                Leonard H. McKinney, Attorney at Law,
                Lewistown, Montana


                             Submitted on Briefs:        November 10, 1994
                                              Decided:   December 13, 1994
Filed:
Justice Terry N. Trieweiler           delivered the opinion of the Court.

      Petitioner Michael T.              Meyer filed a motion to modify a

dissolution decree in the District Court for the Tenth Judicial

District in Fergus County to require respondent Deborah Meyer Lopez

to pay monthly child support for the parties' two minor children.

The   District      Court     entered an         order    modifying        the       support
obligation so that Deborah was required to pay $223 per month per

child for support.          Deborah appeals.        We affirm.

      The issues raised on appeal are:

      1.    Did the District Court properly consider the statutory
grounds    for   child      support      modification      pursuant        to    §    40-4-

208(2) (b) (i), MCA?

      2.    Did the District Court give Deborah proper credit for

variances provided for in the Uniform Child Support Guidelines?

                                 FACTUAL    BACKGROUND

      Michael      and    Deborah     Meyer      were    married      in    Helena        on

September 30, 1972.         At the time of the marriage, Deborah had one

child, Tracy,      who was born in 1968.            Tracy was later adopted by

Michael.    During       their   marriage,       the parties had two children,

Michael Shane and Jillean, born in 1978 and 1980, respectively. In

February   1982,    Michael      filed     for   dissolution,    and a decree of

dissolution was entered in June 1982.                   In a supplemental decree,

Deborah was awarded custody and was required to support Tracy.

Michael was awarded custody and was responsible for the support of




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Michael Shane and Jillean.         That decree was affirmed by this Court

in InreMarriageofMeyer     (1983), 204 Mont. I??, 663 P.2d 328.

      On February 23, 1994, Michael moved to amend the decree.                  His

motion requested that Deborah be required to make monthly child

support payments to support Michael Shane and Jillean.                 At the time

of his motion, Deborah was living and working in California and

Tracy had reached the age of majority.
      Because neither party currently resides in Fergus County, the

parties stipulated to file financial affidavits, child support work

sheets,    briefs,   and   other   documents   to    support   their    respective

positions.     Each party agreed to have the decision based only on
the documents filed and waived the right to a recorded hearing.

The District Court allowed the stipulation and deemed the matter

submitted.     On May 18, 1994, the District Court entered an order

amending the decree of dissolution and ordered that Deborah pay

$446 per month for support.

      Review of this case is made difficult by the fact that the

parties agreed to submit the issue to the District Court without a

hearing or any other form of testimony.               Furthermore, we have no

record of the attorneys' meeting           with     the   District   Court   during

which they discussed what kind of documentary evidence could be

considered.     In   short, of the few documents in the file submitted

for   review, we have no way of knowing which documents the court was

free to consider by agreement of the parties, and which documents

should be     excluded,     based on our normal rules of evidence.

However,   since it is apparent from the arguments of the parties

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that there was some form of agreement to submit this case to the

District Court in its unusual posture, and with deference to the

District Court's greater         understanding of the parties'       actual

agreement, we will attempt to review the issues raised on appeal.

      The     District   Court   record   contains   numerous   documents.

Michael filed his financial affidavit, as required by the Montana

Child Support Guidelines.        Included with his affidavit are copies

of his paycheck stubs.      In addition, Michael filed an affidavit to

support his motion to amend the decree.        The affidavit stated that

Deborah is employed, has remarried, and has sufficient income to

assist with the support of the two minor children.                His main

contention was that it was not            "equitable" to require him to

continue to provide the sole support and maintenance of the minor

children.

      Deborah also filed a financial affidavit, as required by the

guidelines, which included her request for a variance.          She claimed

she was entitled to a variance under Part L of the financial

affidavit because her cost of living is higher in California and

she   will have to incur additional expense           for long distance

visitation.

      Based on the documents and proposed calculations submitted,

the District Court entered its order modifying the decree on

May 18, 1994.      The court found that Michael was entitled to $223

per child per month for child support until the minor children are

emancipated,     or their minority ends.      In its findings, the court

stated that Deborah is entitled to an additional self support

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reserve because of the cost-of-living differential, and is entitled
to a variance          in the amount of             $450 for the long distance

visitation.      Deborah appeals from this order.

                                      ISSUE 1
       Did the District Court properly consider the statutory grounds

for    child   support      modification   pursuant to § 40-4-208(2) (b)(i),

MCA?

       Deborah    claims   that the District Court erred when it modified

the support obligation without indicating that it considered the

statutory      criteria.      Section 40-4-208(2) (b) (i), MCA, states that

child support may be modified only upon a showing of changed

circumstances that are so substantial and continuing that they

render the terms of the original decree unconscionable.                            Deborah

never raised this issue below, so this Court will not consider it

for the first time on appeal.                  See Beery v. Grace Drilling ( 19 9 3 ) ,   260

Mont. 157, 161, 859          P.2d 429, 432.         Deborah simply submitted her

work sheet, affidavit, and brief, and argued that support should be

awarded in the minimum amount allowed by the guidelines.                           We hold

that the District Court did not err by failing to address an issue

which was never raised by the parties.

                                      ISSUE 2
       Did the District          Court give          Deborah proper          credit for

variances provided for in the Uniform Child Support Guidelines?

       This Court will only reverse a district court's modification

of support if the court's findings are clearly erroneous in light



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of the evidence in the record.                In re Marriage ofGies (1985) , 218 Mont.

433, 436, 709 P.2d 635, 637.
         Deborah       claims   entitlement       to   a   cost   of     living     variance

pursuant     to    46.30.1543(f), ARM, because her rent is higher than

Michael's.        However,      she provided no other information with which

to compare        their    homes,     nor did she otherwise document the

respective costs of living.

         Deborah also claims entitlement to a travel variance pursuant

to 46.30.1543[11,         ARM,     based on a letter from a travel agent

setting forth the amount of travel expenses.                           However,   there is no

stipulation admitting the letter, nor is there any other foundation

of record for its admissibility.

         Since Deborah asserted the right to a variance, she had the

burden of proving she was entitled to one.                        To decide in Deborah's

favor,    we would have to adopt her assertions as true, despite the

fact that the record is insufficient to support her assertions. A

district court order is presumed to be correct and an appellant

must overcome that presumption.                   State ex rd. Elakovich v. Zbitnoff ( 19 6 3 ) ,

142 Mont. 576, 579, 386 P.2d 343, 345.                        Absent       some   evidentiary

basis,    there is nothing for this Court to review to determine the

merits of Deborah's claim, and the presumption that the trial court

was   correct   must    stand.     Zbitnoff, 386 P.2d at 345.

      Therefore,        the District Court's order is affirmed.
      Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1988 Internal Operating Rules, this decision shall not be cited as


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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 Montana Law Week, State Reporter and West Publishing Company.




                                          us ice
                                  /

We concur:




     JustIces
