MARRIAGE OF STONE
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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 APPEAL FROM: and Respondent. 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 Lester, L. Falcon; Matteucci, Falcon, Great Falls, Montana Squires & For Respondent: Joan E. Cook; Miller Submitted & Cook, Great Falls, Montana on Briefs: August 24, 1995 Decided: Filed: October 12, 1995 Justice W. William Leaphart Pursuant Internal 1995 to cited with result to State order of determining an Rules, award modified the 1. Did attorney's 2. child 1984. was Settlement children. physical and Two sons, marriage Lorrie Eighth Judicial support for decision and Kevin Colt Lorrie and custody would have abuse decree Kevin's rights the of the primary in boys 1993, to Kevin 2 2, the child award in the 1992. The Dissolution setting 14, The Property Decree set regarding child established agreement that of the voluntarily more Lorrie marriage. custody for as on August obligations Lorrie of discretion of physical Court to married The and visitation. County, and denying District born and Cascade refusing its into its district recalculation on July incorporated the children, were were Cale, of on appeal: in (Kevin) by However, custody Court be as a public from the raised not Company. Court, for err and dissolved Agreement are Stone filing Court and by a report minor Court District obligation. shall appeals remand issues Supreme Publishing We affirm fees. Court. decision Court two the Montana District her of by its (Lorrie) the District fees. Did the support Lorrie Supreme and West The following the the Opinion following be published Stone-Bernardi this her support, of attorney's in support. forth Clerk child of the Reporter, A. court 3(c), and shall the Lorrie Paragraph Section as precedent document the I, Operating delivered than two minor transferred six months. In late 1993, Kevin physical custody to him moved grant denied his legal to gain to parties reserve of Dissolution Decree the children. facto The court Lorrie's set to in of a which, warrant that The Settlement issue of attorney's first later requesting vacated fees issue. was Support the the the date Two and one-half entered Obligation of "This the parties into did no other not mention Additionally, hearing Lorrie filed and renewed the stipulation, entered hearing the states: Agreement fees. Kevin's resolving alia, have to motions, agreement they fees children. drafted and complete Agreement. Lorrie's inter custody attorney's stipulation counsel of the response the consider with full modify Settlement custody Lorrie's Agreement 1. attorney's to anticipation she be awarded .'I attorney's Attorney's in Property that court the fees, Child the Agreement," after Settlement of the court the . . the attorney's Kevin's de specifically the hereto agreements the this and, date, hearing contains counsel, of the "Settlement and the recognize of physical primary issues. agreement nor to presented outstanding of requested actions Prior side she moved Lorrie entitled custody remarried portions Additionally, parties physical Billings, visitation motion to and to modify subsequently to her court motion. relocating for situation primary Lorrie and the on Lorrie's the with issue of no reservation months after a Motion her Motion to the modify for Payment award Lorrie Fees. Did the fees? District request for Court err attorney's 3 in fees refusing to stems from her response to Kevin's motion children based modify on his his motion and not appeal from Lorrie to did de facto not the that Settlement Agreement full and costs enforce prior to the Property with hearing stipulation, counsel, have of entered parties side issue of the issue reserved on the attorney's fees by of the We 893 P.2d Barnard issue of of law (1994), 863, 103, and .I' complete that vacated they No mention agreement. the claim hearing for Agreement and of Nor was date concluded, "[WI e re review a whether to determine 264 Mont. The in its attorney's failing to fees. that, 52 St.Rep. . her Settlement In full Court waived attorney's was correct." 860, Lorrie the held law District court by Lorrie's warrant the the issues. the in counsel The that into recently conclusions the law, entering reserve of fees. the hereto was made when Lorrie's attorney's conclusions fees modify drafted agreements. to However, presented Agreement," contains order to outstanding and the no other did receive in motion and Kevin the party Agreement. Lorrie's agreement into denied and Property incurred of the parties the Custody fees Lorrie the Lorrie successful "This the The court fees. the the hear "Settlement states: agreement to resolving entitled of the provisions Agreement, stipulation XIII that of fees. attorney's set custody attorney's attorney's requires Settlement a of Section any of physical custody. Lorrie reasonable or defend primary physical grant denial argues the the court's Marriage 280, 106, 4 281 of district interpretation Kovash (citing 870 P.2.d 91, court's In 93. (Mont. re 1995), Marriage Additionally, of our standard of attorney's its is whether of Court discretion denying Barnard, the correctly district court at 95. that Lorrie waived abuse its in concluding Did the support District Court obligations? setting Lorrie and Kevin's child disputes five the District Court's 1. household parties. of The District size equaled 2. law District Court three Court abused support its her not claim for erred instead in of 3. The District daycare costs. Court incorrectly imputed 5. The District the child support Absent a award of 265 of 378). fact in child clearly This showing child D.F.D. 368, Court failed calculations. clear (1994), Marriage Court incorrectly visitation with Mont. of support 52, 57, support erroneous. will (1993), review number of Kevin's discretion a assets district 705, 707 (citing In 261 Mont. 186, 203, 862 P.2d to Kovash, re of P.2d a district of 5 the amount In cases Marriaqe income. be upheld. 874 modification Kevin's by the a reasonable all of in Lorrie Kevin's calculated children. include abuse will and D.G.D. Court to the setting discretion concluding that two, as stipulated calculated 4. The District Kevin would have in She argues: findings. incorrectly Hill we find obligations, Court court's its and did discretion The District days for abused Here, the the are a motion interpreted that in granting 870 P.2d arguing of or fees 2. child In order District attorney's the an Marriaqe the abuse of and costs fees discretion. that review Marriage court's determine 893 P.2d findings whether at of re of they 862-63. There is a presumption unless appellant an discretion or Marriage in favor of the demonstrates an error in the of Johnson (1987), the instant case, district there court's was district a court's 225 Mont. 404, certain of judgment clear abuse findings. 405, of In 732 P.2d re 1345, 1346. In conclusions are household, the household clearly size stipulation erroneous. record shows came after financial affidavit Guidelines Worksheet. error in the which then The calculated income in based on both wage. week) per week wage results $12.90 resulting in Kevin's hourly wage included there evidence that per an annual was hour, was annual income Kevin was amounts of about an over the or an Kevin incorrectly reports his and a weekly on his ($700 reported per $700 year. on an hourly The wage of $26,844.48. However, record that understating "premium under 6 based $700 in to was of $36,400 The his obligation. hour) of disputed. results allotted based income This Support affidavit income Kevin's no dispute it income the Child the income ($13 per his an support to out size financial an hourly significant is in Kevin's Kevin's calculated $13 hand, that in Court which child Calculating District reporting a lower Kevin's filled reserve" court. per used "self-support reveals also by the he incorrectly then of persons. household of size and stipulated three The incorrect amount record was not findings the parties two admitted that results the of Kevin court's Regarding that consisting the per shows his wage On the time." week statement actual figure of his in other and no income. Thus in basing than light of Kevin's the annual on the the for substantial three findings. Consequently, abuse of these issues. other discretion, the remand recalculation of on a household weekly we will Marriaqe and the size wage of Chief that are Justice of the not this of $700. of two of to child $12.90 support in rather the District the support P.2d and, is District at of fact court's at there the 732 findings 893 P.2d the persons to erroneous disturb Kovash, case amount court's of erred by Lorrie, Johnson, clearly not decision record of court week. presented in the Marriase the wage $700 per issues evidence issues We affirm his of See remaining record, on an hourly we conclude three the figure credible Court's in salary undisputed As herein evidence 1347. for the finding no judgment for 862-63. Court District Kevin and an annual as modified court must income for pay a based based on
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