No. 14766
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979
ROSALIND BAILEY,
Plaintiff and Respondent,
VS .
LEE R. BAILEY,
Respondent and Appellant.
Appeal from: District Court of the Eighth Judicial District,
Honorable H. William Coder, Judge presiding.
Counsel of Record:
For Appellant:
Hartelius and Associates, Great Falls, Montana
Michael S. Smartt argued, Great Falls, Montana
For Respondent:
Camerson Ferguson argued, Great Falls, Montana
Submitted: November 8, 1979
Decided: - 3 1979
Filed: -
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Mr. Chief Justice Frank I. Haswell delivered the Opinion of the
Court.
This appeal is from a final decree of dissolution of
marriage entered in Cascade County District Court. The husband
assigns error to those parts of the trial court's findings, con-
clusions and decree which pertain to marital property, child
custody and support, and attorney fees.
We turn first to the division of the marital estate. The
property to be divided consisted of the family home, the parties'
respective savings accounts, the husband's retirement fund and
other property. In dividing the marital estate, the District
Court is required to consider:
" ... the duration of the marriage and prior
marriage of either party; antenuptial agreement
of the parties; the age, health, station, occu-
pation, amount and sources of income, vocational
skills, employability, estate, liabilities, and
needs of each of the parties; custodial provi-
sions; whether the apportionment is in lieu of
or in addition to maintenance; and the opportun-
ity of each for future acquisition of capital
assets and income. The court shall also consider
the contribution or dissipation of value of the
respective estates and the contribution of a
spouse as a homemaker or to the family unit, . . ."
Section 40-4-202, MCA.
It is apparent from the court's decision that it carefully consid-
ered the above criteria. The following finding is fully supported
by the evidence:
"[Respondent], in view of her employment as a nurses
aide and lack of opportunity for advancement, the
amount of her average monthly living expenses, her
age and her position in life, has limited opportun-
ity for future acquisition of capital assets and
greater income. She has a need of suitable housing.
[Appellant], on the other hand, has a much greater
income and a greater opportunity for future acquis-
ition of capital assets and greater income. [Appel-
lant] also has substantial accrued retirement bene-
fits, which he can obtain upon leaving the civil
service. [Respondent] therefore should be entitled
to have the house to enable her to continue in a
standard of living she has enjoyed during the parties'
marriage. [Appellant], with his greater income, can
purchase new suitable housing." (Bracketed identifi-
cation paraphrased.)
In addition to the house, respondent received the household
furnishings and her savings account. Appellant received the
rest of the property. In terms of the total value of the es-
tate, respondent received about 2/3 and appellant 1/3.
We have no argument with appellant's assertion that in
some cases a 50-50 split of the property is desirable, Eschen-
burg v. Eschenburg (1976), 171 Mont. 247, 251, 557 P.2d 1014.
However, a division which favors one party over the other may
be acceptable if there is a reason for it. See e.g. LaPlant v.
LaPlant (1976), 170 Mont. 155, 158, 551 P.2d 1014. As we have
said in numerous opinions, the trial court's division of the
marital estate will not be disturbed absent a showing that it
abused its discretion. Grenfell v. Grenfell (1979), Mont .
, 596 P.2d 205, 36 St.Rep. 1100, 1103; Porter v. Porter (1970),
155 Mont. 451, 473 P.2d 538, 541. Here, the emphasis placed on
the parties' needs and their relative financial situations indi-
cates a careful exercise of the court's discretion.
Appellant argues that an in-chambers interview of the
children concerning their desires on custody was conducted improper-
ly. We have found no support for his contention that reversible
error occurred because the court reporter failed to include the
children's namcsin the record of the interview. Likewise, there
is no basis for his contention that the parties' oldest son, who
had reached majority, should not have been present. There was no
request for his exclusion and no objection to his inclusion. The
issue cannot be raised for the first time on appeal. In the Matter
of T.Y.K. (1979), Mont . , 598 P.2d 593, 36 St.Rep. 1460,
1464. Appellant further contends the trial judge did not inquire
whether the children had been "coached" before the interview by
someone sympathetic to the wife. The record reveals that upon
being asked, one of the children said any conversation which took
place was among themselves. Apparently satisfied that undue influence
had not been exerted over the children, the judge did not pursue
the matter further. The credibility of the declarant and the
effect of his statement was for the judge to determine. See
Voyta v. Clonts (1958), 134 Mont. 156, 328 P.2d 655.
Finally, there is no substance to appellant's argument
that the court erred in asking the youngest child leading ques-
tions. Leading questions may be asked if necessary to develop
testimony, Rule 611(c), Mont.R.Evid., and whether or not they
will be allowed is a matter for the trial court's discretion.
See Commission Comment to Rule 611(c) One of the well known
exceptions to the general provision against leading questions is
when the witness is a child. Advisory Committee's Note to Federal
Rule 611(c), (1972), 56 F.R.D. 183, 275. Here, where counsel noted
at oral argument that the youngest child was rather withdrawn, the
asking of leading questions is not an abuse of discretion.
The award of custody and child support is a matter for
the trial court's discretion. Brown v. Brown (1978), Mont .
, 587 P.2d 361, 35 St.Rep. 1733- In this case, the only child
whose custody is now in controversy said it would be "O.K." if he
lived with his mother. There is no abuse of discretion.
We finally turn to the trial court's award to the wife of
attorney fees of $350.
"Traditionally, a showing of necessity has been a
condition precedent to the exercise of the court's
discretion to award attorney fees. Whitman v.
Whitman (1974), 164 Mont. 124, 519 P-2d 966, But
the lower court's discretion in the matter will not
be disturbed if substantial evidence is found in the
record to support the award." Kaasa v. Kaasa (1979),
Mont. , 591 P.2d 1110, 36 St.Rep. 425, 430.
Here, the trial court was well aware of the parties' financial
situations. It did not abuse its discretion in making an award
of reasonable attorney fees, based on necessity. Houtchens v.
Houtchens (1979), Mont . , 592 P.2d 158, 36 St.Rep. 501, 505-
An award of $350 in attorney fees in a contested marital dissolution
involving property division, child custody and support is
manifestly a nominal fee. As such, there is no requirement
that the amount of the fee be supported by evidence. Solie v.
Solie (1977), 172 Mont. 132, 561 P.2d 443.
Affirmed.
Chief Justice
We concur:
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