                                       No.    95-017
               IN THE SUPREMECOURT OF THE STATE OF MONTANA
                                             1995


IN RE THE MARRIAGE OF
LORRIE A. STONE, n/k/a
LORRIE A. BERNARDI,
               Petitioner       and Appellant,
         and
KEVIN D. STONE,
               Respondent       and Respondent.



APPEAL FROM:          District  Court of the Eighth Judicial District,
                      In and for the County of Cascade,
                      The Honorable Joel G. Roth, Judge presiding.


COUNSEL OF RECORD:
               For Appellant:
                      Daniel     L. Falcon; Matteucci,  Falcon,        Squires     &
                      Lester,     Great Falls,  Montana

               For Respondent:
                      Joan E. Cook; Miller           & Cook, Great   Falls,    Montana



                                         Submitted     on Briefs:    August    24, 1995
                                                         Decided:    October     12, 1995
Filed:
Justice          W. William               Leaphart                 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,               and West             Publishing                 Company.

          Lorrie          A.         Stone-Bernardi                    (Lorrie)               appeals           from           the      district

court       order         of     the     Eighth         Judicial                 District              Court,          Cascade               County,

determining               child         support              for      her        two     minor            children,               and denying

an      award       of         attorney's              fees.                We affirm                 the      District                 Court           as

modified           in      this         decision              and      remand             for         recalculation                     of      child

support.             The following                     issues          are        raised             on appeal:

           1.     Did           the District                   Court            err      in     refusing               to      award          Lorrie
her      attorney's               fees.

          2.         Did the            District               Court            abuse         its         discretion               in        setting
the      child       support            obligation.


            Lorrie             and      Kevin      Stone              (Kevin)            were          married              on August                14,

1984.            Two sons,              Colt      and         Cale,             were      born         of     the        marriage.                   The

marriage           was         dissolved           by         decree             on July             2,     1992.              The      Property

Settlement               Agreement              incorporated                     into         the      Dissolution                   Decree          set

forth       Lorrie             and      Kevin's              rights             and      obligations                   regarding                child

support,           custody             and visitation.                            The         agreement             established                     that

Lorrie           would         have      the      primary              physical                 custody           of        the       two       minor

children.                  However,               in         1993,              Lorrie              voluntarily                   transferred

physical           custody             of the      boys            to Kevin             for     more         than        six      months.               In


                                                                            2
late         1993,          Kevin          moved            the          court           to         recognize                  this               de      facto
physical             custody            situation             and to modify                         the      Decree              of     Dissolution

to     grant         him        primary          physical                custody              of     the        children.                     The court
denied         his      motion.

           Lorrie               subsequently                      remarried                   and,              in       anticipation                            of
relocating              to       Billings,                she moved               the         court         to       modify             the            custody

and       visitation                portions                 of         the       Property                  Settlement                       Agreement.

Additionally,                    Lorrie         requested                that           she be awarded                      attorney's                     fees

for     her     legal            actions           to      date,         specifically                      in        response                to        Kevin's
motion         to     gain         primary              physical              custody              of      the        children.

           Prior           to     the      hearing                set     to       consider                 Lorrie's                  motions,               the

parties             presented                the          court          with           a        stipulation                     resolving                   the

outstanding                  issues.                Lorrie's                  counsel               drafted              the           stipulation,

entitled             "Settlement                Agreement,"                    which,              inter         alia,           states:                  "This
agreement             contains             the       full         and complete                      agreement               of         the          parties

and the        parties             hereto           warrant              that       they           have         entered               into         no other

side       agreements               . .            .'I      The Settlement                          Agreement               did         not         mention
nor     reserve             the     issue          of       attorney's                  fees.              Additionally,                          Lorrie's
counsel,              after          first               requesting                the             hearing             on         the             issue          of

attorney's              fees,           later       vacated              the      hearing               date         with        no reservation

of     the     attorney's                  fees          issue.               Two and one-half                           months               after          the

Settlement              Agreement                 was       entered               Lorrie            filed            a Motion                 to        modify

Kevin's         Child            Support           Obligation                 and renewed                   her Motion                   for           Payment

of     Attorney's                 Fees.

        1.            Did the             District                Court           err       in       refusing               to        award             Lorrie
attorney's             fees?

           Lorrie's               request           for      attorney's                     fees        stems            from          her         response

                                                                              3
to      Kevin's               motion          to         modify          the        primary             physical                  custody                of      the

children              based           on his             de facto            physical              custody.                     The court                denied
his      motion            and         did         not     grant          Lorrie            attorney's                   fees.                 Lorrie            did
not      appeal            from         the        denial          of      attorney's                  fees.

              Lorrie            argues             that         Section             XIII      of       the         Custody                and Property

Settlement                 Agreement                     requires            that          the        successful                     party           receive

full          costs            and      reasonable                     attorney's                fees          incurred                   in      order            to

enforce             or defend                any of            the provisions                    of the             Agreement.                     However,

prior          to        the        hearing              set      to      hear         Lorrie's                 motion               to        modify            the
Property              Settlement                   Agreement,                Lorrie         and Kevin                   presented                 the         court

with           a      stipulation                        resolving                  the       outstanding                            issues.                     The

stipulation,                    entitled                 "Settlement                 Agreement,"                     drafted               by Lorrie's

counsel,              states:                 "This            agreement              contains                the          full           and      complete
agreement                of     the      parties                and the             parties            hereto              warrant               that          they

have      entered               into         no other              side        agreements.                     .         .I'          No mention                  of

the      issue            of        attorney's                 fees       was made               in      the        agreement.                       Nor         was
the      issue           reserved              when Lorrie's                        counsel            vacated                 the        hearing              date

on the              attorney's                 fees.                   The     District                Court             concluded,                      in      its

conclusions                    of      law,         that          Lorrie            waived            her          claim          for          attorney's
fees          by      entering                into          the         Settlement                 Agreement                      and          failing             to

reserve             the        issue          of     attorney's                 fees.

          We          recently                held             that,           "[WI e         review                a      district                  court's
conclusions                    of     law      to determine                    whether             the        court's                interpretation

of      the        law        was correct."                        In     re     Marriage                of        Kovash               (Mont.           1995),

893      P.2d         860,           863,          52 St.Rep.                280,          281        (citing              In      re      Marriage                of
Barnard              (1994),           264 Mont.                103,         106,      870 P.2.d 91,                     93.          Additionally,


                                                                                4
our     standard            of        review       of      an        order          denying              or     granting                a motion               for

attorney's               fees         and costs                is     whether             the       district                 court            abused           its

discretion.                 Marriaqe               of      Barnard,                  870 P.2d                 at       95.         Here,            we find

that      the      District               Court          correctly                  interpreted                       the        law     and did               not

abuse      its      discretion                   in concluding                      that         Lorrie            waived              her        claim        for

attorney's               fees



         2.          Did the              District     Court                        abuse         its         discretion                     in     setting
the     child        support              obligations?
          In     arguing               that       the          District              Court          abused              its        discretion                    in

setting            Lorrie              and       Kevin's                  child            support                 obligations,                       Lorrie

disputes           five          of     the      District                 Court's             findings.                      She argues:

         1.         The District                     Court               erred             in       concluding    that                              Kevin's
household           size equaled                    three              instead              of    two, as stipulated                                 by the
parties.

          2.       The District                  Court              incorrectly                  calculated                   Kevin's              income.

          3. The District                        Court              incorrectly                  imputed              a reasonable                    amount
of     daycare  costs.
          4.   The District                        Court     incorrectly                            calculated                     the           number          of
days      Kevin would have                        visitation        with                      the     children.

          5. The District                        Court failed                       to     include              all         of    Kevin's             assets
in     the child  support                        calculations.

          Absent            a     clear           showing               of        abuse           of          discretion                     a     district
court's          award           of      child          support              will          be upheld.                   In        re     Marriage                of

Hill       (1994),              265      Mont.           52,          57,      874         P.2d          705,          707         (citing                In     re

Marriage           of     D.F.D.              and D.G.D.                  (1993),           261 Mont.                  186,            203,        862 P.2d

368,      378).             This         Court          will          review             a district                   court's            findings                of

fact      in     child           support          modification                       cases          to        determine                 whether            they
are     clearly             erroneous.                    Marriaqe                  of      Kovash,                893 P.2d                  at      862-63.

                                                                              5
There       is     a presumption                           in     favor          of        the     district               court's              judgment

unless           an         appellant                 demonstrates                         there         was        a       clear              abuse           of

discretion                 or       an error                in     the      district                court's               findings.                      In    re

Marriage              of        Johnson              (1987),             225         Mont.         404,         405,         732          P.2d           1345,

1346.

           In     the           instant              case,          certain                of      the        court's              findings                   and

conclusions                  are         clearly            erroneous.                     Regarding             the        size          of        Kevin's

household,                  the          record            shows         that          the       parties            stipulated                      to        the

household                  size           consisting                  of         two         not         three             persons.                       This

stipulation                  came after                   Kevin      admitted                he incorrectly                      filled             out       his

financial                  affidavit                 that          was       then            used         in       the           Child              Support

Guidelines                 Worksheet.                      The incorrect                     household              size          results                in    an

error       in        the          amount            of     "self-support                        reserve"            allotted                  to        Kevin

which       then           results              in    a lower              child           support          obligation.
           The     record                also         reveals            that          Kevin's            income            was        incorrectly

calculated                 by the           court.                Kevin's             financial               affidavit                reports                his

income          based           on both              an hourly                  ($13 per            hour)          and a weekly                           ($700

per     week)         wage.               Calculating                his         income            based        on his            reported                $700

per     week wage results                             in    an annual                 income        of $36,400                   per      year.               The

District           Court            calculated                   Kevin's             income        based         on an hourly                       wage of
$12.90           resulting                  in       an         annual           income            of     $26,844.48.                          However,

Kevin's           hourly                 wage         was         disputed.                      The      record             shows              that           in

reporting               $13         per         hour,            Kevin       was           understating                    his         actual             wage

which       included                significant                   amounts             of     "premium            time."             On the               other

hand,       there             is         no dispute                about             the     $700        per      week            figure             and       no

evidence              that          it     was            an over           or        under         statement                of        his          income.

                                                                                 6
Thus      in     light          of     the        evidence                 in      the       record,            the      court        erred          in
basing          Kevin's           annual           salary             on an hourly                     wage        of     $12.90            rather

than      on the          undisputed                figure            of        $700 per           week.

          As     for      the        three        other          issues               presented                by Lorrie,             there          is

substantial               credible            evidence                in the          record         to        support         the    District

Court's           findings.                 See      Marriase                   of       Johnson,               732      P.2d        at          1347.

Consequently,               we conclude                   that         the         court's        findings               of fact           for     the

three      remaining                 issues          are     not            clearly            erroneous                and,     finding             no

abuse      of     discretion,                 we will             not           disturb         the        court's             judgment            for

these      issues.              Marriaqe             of      Kovash,                 893 P.2d             at     862-63.

          We affirm                  the     decision                 of        the       District               Court         as     modified

herein           and       remand             this           case               to       the       District                court            for          a

recalculation                of       the     amount             of        child         support           Kevin         must        pay     based

on a household                    size       of      two     persons                  and an annual                     income        based          on

his     weekly         wage of              $700.




                 Chief       Justice
