No 14250
I N THE SUPREBE COURT O THE STATE O MONTANA
F F
1978
IN RE THE MARRIAGE O F
DO= G. HOU'ICHENS,
Petitioner an3 Respondent,
and
Respordent and Appellant.
Appeal f r m ; D i s t r i c t Court of the F i r s t Judicial D i s t r i c t ,
Honorable Ibbert J. Boyd, Judge presiding.
Counsel of Record:
For Appellant:
Smith and Harper, Helena, Montana
Charles S t h , I11 argued, Helena, Wntana
For Respondent:
Jackson and Kelley, Helena, Montana
Gregory LJackson argued and Douglas Kelley argued, H e l e n a ,
Mntana
Sutmitted: November 16, 1978
Decidd: MAR 15 1
m
Filed : --
Mr. Justice Daniel J. Shea delivered the Opinion of
the Court.
Husband appeals from the judgment of the Lewis and
Clark County District Court dissolving his marriage and
making provisions for child custody, property distribution
and attorney fees. He contends the evidence does not
support the findings of the District Court as to child
custody, property distribution and attorney fees awarded to
the wife. He also challenges an order, incorporated into
the divorce decree, holding him in contempt of court for
failure to pay temporary child support and maintenance to
the wife and requiring him to make these back payments.
The parties were married on May 10, 1975. Both had
been married once before. The wife brought two children
into this marriage. On June 5, 1976 one child was born of
this marriage.
On July 19, 1977, the wife petitioned for dissolution.
At the same time, a "temporary order and order to show
cause" (one document) was submitted to the court along with
the wife's affidavit attesting to: her fear of physical
abuse by the husband; her then being unemployed; her
having physical custody of the child; and, her need of
$150 per month for child support and $200 per month for
maintenance. The District Court signed the order which also
provided that the husband appear and show cause on July 29,
1977 why the order should not be issued. On July 28, the
court continued the show cause hearing until August 2, 1977
for unspecified reasons. According to the wife's testimony
at trial, the parties resumed cohabititation and attempted
to reconcile their differences during this period from July
through October 1977 at which time they separated permanently.
She stated that, therefore, she was only asking the court to
order the husband to pay temporary support and maintenance
after October 1977 until the date of trial.
-2-
In November 1977, the district judge ordered the cause
transferred to Conciliation Court and for an official con-
ciliator to explore the prospect of reconciliation between
the parties. Again, reconciliation failed and the cause
went to hearing on January 13, 1978.
At trial, numerous witnesses testified primarily on
the relative suitability of the respective parties as custodian
for the child. The court ultimately granted custody of the
minor child to the wife, disposed of the marital estate and
awarded attorney fees to the wife. The court also found
the husband in contempt of the temporary order to show cause
and ordered him to pay arrearages thereunder from October
1977, when the parties separated, permanently, until the
date of trial.
Husband first contends the evidence was insufficient to
support the District Court's award of custody to the wife.
We disagree. Although some difference of opinion was
expressed at trial on the proper custodian for the child,
substantial credible evidence supported the court's decision
to award custody to the wife. See Allen v. Allen (19781,
Mont . , 575 P.2d 74, 75-76, 35 St.Rep. 246, 247-48
(and authority cited therein). That is all that is required.
Husband next contends the court's disposition of marital
property constituted an abuse of discretion. He argues that
since only $1,550 worth of property was acquired during
marriage, awarding the wife property with an aggregate value
of $8,000 was an abuse of discretion under Berthiaume v.
Berthiaume (1977), Mont . , 567 P.2d 1388, 34 St.Rep.
921. In Berthiaume, marital assets held in joint tenancy
were divided disproportionately contrary to the court's
declared intent to distribute "as equally as possible".
Berthiaume v. Berthiaume, supra at 1390. Nothing said in
Berthiaume commands reversal of the case before this Court.
-3-
The fact that only $1,500 in assets were acquired
during marriage is not determinative. Section 48-321,
R.C.M. 1947, now section 40-4-202 MCA, calls for an
equitable division of marital property by the court,
regardless of however or whenever acquired or in whose
name the property is held. Here, husband was in possession
of a 1972 GMC pickup valued at $1,000, a 1967 Buick valued
at $400, real property valued variously at $50,000, $56,000
and $100,000 and savings in the amount of $11,000. Wife
had no savings and no real property but some personal property
of minor value. Awarding her the 1975 Ford free of encum-
brances which was worth $4,500 and $3,500 in cash was not
an abuse of discretion under the circumstances.
The husband next asserts the court erred by holding
him in contempt of the show cause order and requiring him
to pay temporary child support and temporary maintenance
due thereunder.
The "temporary order and order to show cause" was,
in substance, both an ex parte restraining order and notice
of a motion for temporary support and maintenance. Section
48-318, R.C.M. 1947, now section 40-4-106 MCA, permits motions
for temporary support and maintenance to be combined with an
ex parte application for a restraining order. Section 48-318,
supra, provides in pertinent part:
.
". . [Elither party may move for temporary
maintenance or temporary support of a child of
the marriage entitled to support. The motion
shall be accompanied by an affidavit setting
forth the factual basis for the motion and
the amounts requested.
"(2) As a part of a motion for temporary
maintenance or support or by independent
motion accompanied by affidavit, either
party may request the court to issue a
temporary injunction for any of the following
relief:
" (b) enjoining a party from molesting
or disturbing the peace of the other party
or of any child;
"(3) The court may issue a temporary
restraining order without requiring notice
to the other party only if it finds on the
basis of the moving affidavit or other
evidence that irreparable injury will result
to the moving party if no order is issued
until the time for responding has elapsed.
"(4) A response may be filed within twenty
(20) days
-- after service of n t o- motion
or - - - s p e c i f i e d i- - temporary
- at the W n the
restraining order." Section 48-318, R.C.M.
1947, now section 40-4-106 MCA (Emphasis
added).
The wife relies on section 48-318(4), supra, as foreclosing
the husband's opportunity to be heard on wife's motion for
temporary support and maintenance. While section 48-318(4),
supra, permits a response, it does not require a response.
It merely limits the time within which a response may be
filed. This construction is required both by the permissive
terms of the provision and by reference to section 48-315,
R.C.M. 1947, now section 40-4-103 MCA which provides, unless
otherwise specified by the Montana Uniform Marriage and
Divorce Act (M.U.D.A.), the Montana Rules of Civil Procedure
apply. In construing the civil rule on the form of motions,
Rule 7(b), Mont.R.Civ.P., this Court has frequently stated
that a motion is but an application for an order. A motion
is not a pleading and does not require responsive pleadings.
See e.g. Luppold v. ~ e w i s(1977), Mont . , 563
P.2d 538, 546, 34 St.Rep. 227; McVay v. ~istrictCourt (19531,
126 Mont. 382, 392-93, 251 P.2d 840, 846. See also, 2A
Moore's Federal Practice S7.05. The husband's failure to
file a response did not render the motion, an order.
The July 19 temporary restraining order specified
July 29 for a show cause hearing at which time the issues of
whether the restraining order should continue pending trial,
and whether temporary child support and maintenance should
be ordered pending trial, would be determined. Thus, the
portion of the show cause order relating to temporary
support and maintenance was no more than the court's designation
as to when the motion would be heard. On July 28, the court
continued the hearing without date. The record is silent as
to whether there ever was a show cause hearing on the motion.
Since the terms of the court order clearly contemplated a
show cause hearing before temporary support and maintenance
would be ordered, it was not a final interlocutory order in
the absence of a show cause hearing. We therefore reverse
the District Court's finding of contempt and consequent
order requiring the husband to make back payments. A valid
order had never been entered requiring the payment of the
temporary support and maintenance.
Finally, husband challenges the courts award of attorney
fees to the wife and the sufficiency of evidence offered in
support of the $1,000 attorney fees. He contends wife
failed to establish necessity, a condition precedent to the
award of attorney fees in a dissolution action according to
section 48-327, R.C.M. 1947, now section 40-4-110 MCA; and
Allen v. Allen (1978), Mont . , 575 P.2d 74, 76,
35 St.Rep. 246, 249. We find the court was adequately
apprised of the relative financial means of the parties, and
sufficient evidence supported the court's finding of wife's
necessity for the award of reasonable attorney fees. However,
we do not find the method used to substantiate the amount of
the attorney fees sufficient to uphold the award. "An award
of fees, like any other award, must be based on competent
evidence." First Security Bk. of Bozeman v. Tholkes (1976),
169 Mont. 422, 429, 547 P.2d 1328, 1331 (quoting Crncevich
v. Georgetown Recreation Corp. (1975), 168 Mont. 113, 120,
541 P.2d 56, 59). The only evidence supporting the $1,000
fee was the wife's acknowledgment in testimony that a
$1,000 fee was reasonable under the circumstances. This
evidence standing alone, is insufficient to verify the
reasonableness of the attorney fees awarded. The cause is
therefore remanded for determination of reasonable attorney
fees consistent with the authority cited.
The judgment of the District Court is affirmed as to
custody and property disposition but reversed as tc contempt
and arrearages under the show cause order.
The cause is remanded to the District Court for a
hearing to determine reasonable attorney fees tc be paid by
the husband.
We Concur:
chief Justice
........................
Justices
Mr. ~usticeJohn C. Sheehy concurring in part and
dissenting in part:
While I agree with the result relating to the
custody, division of assets and reversal of the contempt
order, I disagree with the conclusion that the evidence
does not support the award of attorney fees.
The wife testified, without objection, that she had
incurred a liability for attorney fees in the divorce
action of $1,000 to $1,500 which she considered reasonable.
No cross-examination on this point occurred, nor was
counter evidence offered by the husband to show a lesser
fee would be proper.
On that record, it is a fundamental rule of appellate
law that the court will only consider objection to evidence
to which proper objections have been made in the trial
court. Butte Northern Copper Co. v. Radmilovich (1909),
39 Mont. 157, P. 1078. If a party fails to preserve
the record with timely objections and specific grounds
therefor, that party cannot complain of the matter on appeal.
Hayes v. J. M. S. Construction Co. (1970), Mont . t
579 P.2d 1225, 34 St.Rep.
Here, with a trial transcript of 230 pages, and five
detailed exhibits prepared and submitted, it should be
apparent to any district judge what the reasonable fees of
attorneys would be to represent the petitiodin such a
proceeding. It is a futile act to return the case to the
District Court on this point.
1
Very probably, a telephone
call between counsel will settle the issue at or near the
court's order, for the reasonableness of the award is
apparent. If anything, we should return the case with
instructions to the District Court to consider additional
attorney fees to the petitioner or appellant, because, aside
from the issue on the temporary support order, the appeal
is near frivalous.
" / Justice