No. 82-490
I N THE SUPREME COURT O THE STATE O M N A A
F F OTN
1983
I N RE THE 1IARRIAGE OF
DANIEL JOSEPH MURPHY,
P e t i t i o n e r and Respondent,
V I C K I LYN LWRIE MURPHY,
Respondent a n d A p p e l l a n t .
Appeal from: D i s t r i c t Court of t h e Eighth J u d i c i a l District,
I n and f o r t h e County o f C a s c a d e ,
The H o n o r a b l e J o h n M. McCarvel, J u d g e p r e s i d i n g .
C o u n s e l o f Record:
For Appellant:
H a r t e l i u s & F e r g u s o n ; Cameron F e r g u s o n , G r e a t F a l l s ,
Montana
A l e x a n d e r & Baucus; Ward T a l e f f , G r e a t F a l l s , Montana
(For Children)
F o r Respondent :
James, Gray & McCafferty; R o b e r t F. J a m e s , G r e a t F a l l s ,
Montana
Submitted on B r i e f s : A p r i l 1, 1 9 8 3
Decided: J u l y 1 9 , 1983
~iled:
J L 19 1983
U
Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
Vicki Murphy, now Vicki Nannini, appeals from an order
of the Eighth Judicial District Court, Cascade County, which
awarded custody of the parties' minor children to Daniel
Murphy and denied her attorney's fees.
Vicki and Daniel Murphy married on March 19, 1977 in
Philipsburg, Montana. They established residence in Cut
Bank, Montana, which was Daniel's hometown. Sons, Sean and
Ryan, were born February 1, 1978 and August 6, 1979,
respectively.
On April 14, 1981 Daniel petitioned the Ninth Judicial
District Court, Glacier County, for dissolution of the
parties1 marriage. Three months later the action was
dismissed at the request of the Murphys; however, their
reconciliation attempt was unsuccessful. On August 25, 1981
the dismissal order was set aside and the cause transferred
to the Eighth Judicial District Court for determination.
Daniel Murphy petitioned the court for custody of the
children; Vicki Murphy asked the court to grant the parties
joint custody, with the provision that she would be the
residential parent.
After a second reconciliation effort failed, the
marriage was dissolved on January 28, 1982. Contested
matters, including child custody, were reserved for
determination at a later hearing, which was held on July 7,
1982.
The court heard testimony from both parties, Vicki's
current spouse, John Nannini, and various friends and
relatives. The children's court-appointed attorney
cross-examined the parties and several witnesses, and upon
the basis of his previous investigation and the testimony
presented, submitted his recommendation and report to the
court. Thereafter the District Court entered it's findings of
fact, conclusions of law and accompanying order, awarding
Daniel Murphy custody of the boys. The order further
provided that Vicki have "custody" of the boys during
Daniel's workday, and that weekend, holiday and summer
visitation be determined by reasonable agreement between
the parties.
Vicki's objections to the findings of fact were
subsequently overruled as were her motions for new trial and
amendment to the findings. This appeal followed.
Vicki presents three issues for review. First, she
contends the District Court abused its discretion in awarding
custody of the children to Daniel. She argues that the
District Court failed to afford any (or sufficient) weight to
the preference of the parties' four-year old child and
penalized her for her conduct during the course of the
parties' marriage by denying her custody of her children.
Additionally, Vicki argues the District Court erred in
failing to explain why the recommendation of the children's
attorney was rejected. Because this argument relates to the
second issue, we will discuss it below in that context.
Prior decisions from this Court have established that
the District Court must consider the wishes of the children
regarding custody and make findings as to their wishes or why
they were not followed. Milanovich v. Milanovich (1982),
Mont . , 655 P.2d 961, 39 St.Rep. 1554; Kaasa v. Kaasa
(1979), 181 Mont. 18, 591 P.2d 1110; In re Marriage of Kramer
(1978), 177 Mont. 61, 580 P.2d 439.
Here, the District Court made no finding regarding the
children's preference; Vicki does not contest this fact.
Instead she protests the court's finding that the preferences
of a four-year-old child have "little evidentiary value in
determining custody." Vicki contends more weight should have
been afforded to Sean's preference absent evidence of record
that the child was too immature to adequately express his
wishes.
As an appellate court we cannot reassess the weight of a
particular witness's testimony. Just as the trial judge is in
a better position to determine child custody because he has
heard the testimony and observed the demeanor of the
witnesses, Malcolm v. Malcolm (1982), Mont . , 640
P.2d 451, 39 St.Rep. 262, the trial judge is singularly
equipped to assess the ability of a young child to formulate
and articulate his/her custody wishes and weigh that preference
in light of the other evidence and factors enumerated in
section 40-4-212, MCA. The District Court committed no error
by assigning "little" weight to the custody wishes of a
four-year-old child.
Vicki next argues that the custody award was predicated
on the trial court's desire to penalize her for "marital
misconduct." In support of her argument, Vicki refers to
several findings of fact included in the district court's
order, the particulars of which need not be recited, and this
court ' s decision in Markegard v. Markeqard (1980), I
Mont . , 616 P.2d 323, 37 St.Rep. 1539.
Markegard is inapposite to this cause. There, the
district court misapplied the doctrine of parens patriae and
concluded, without evidentiary basis, the child's interest
would be better protected were he to remain in Montana.
Here, there is no indication that the District Court based
its decision on a misapplied legal doctrine.
Although we may not agree with the trial court's custody
decision or the necessity of implying that Vicki's conduct
reflected upon "her fitness as a parent, her stability and
her priorities," we cannot say the trial court abused its
discretion or made findings against the clear preponderance
of the evidence. Absent such determinations, a custody award
will not be reversed. Jensen v. Jensen (1979), 182 Mont.
472, 597 P.2d 733.
The second issue raised is that the District Court erred
in failing to set forth its reasoning in rejecting Vicki's
request for joint custody. Since the children's attorney
recommended that joint custody be awarded to the parties and
that Vicki be designated as the residential parent, the
district court's failure to address that recommendation in
its findings was error.
Section 40-4-224, MCA, expressly provides that " [ulpon
application of either parent . . . for joint custody, the
court shall consider whether or not joint custody is in the
best interest of a minor child. If the court declines to
enter an order awarding joint custody, the court shall state
in its decision the reasons for denial of an award of joint
custody. " (emphasis added)
Sections 40-4-222, MCA, et seq., did not come into
effect until October 1, 1981, approximately three months
after this cause was reinstated. Nevertheless the District
Court was bound to follow their mandate. The statutes
regarding joint custody did not change the substantive rights
of the parties but merely affected the procedure to be
followed in custody proceedings. We have long recognized the
applicability of new procedural statutes to pending cases.
See, e.g., State ex rel. Johnson v. District Court (1966), 148
Mont. 22, 417 P.2d 109; 82 C.J.S., Statutes, Section 416, et
seq.
Because the district court's findings do not comply with
section 40-4-224, MCA, the custody award must be vacated and
this cause remanded for further findings. A new trial is not
required.
Finally, Vicki contends that the ~istrictcourt erred in
refusing to award her attorney's fees.
Under section 40-4-110, MCA, the court has discretion to
award attorney's fees and costs to either party. On appeal,
the well established rule is that, where there is substantial
evidence to support the findings of the ~istrict c ~ u r t ,
neither the findings nor the court's discretion will be
disturbed. In re Marriage of Brown (1978),179 Mont. 417, 587
P.2d 361.
The District Court was apprised of the relative
financial status of the parties and knew that Vicki would
receive $7,000.00 under the parties' approved property
settlement. On that basis, the court found her to be capable
of paying her attorney's fees. Upon review of the record, we
find no reason to interfere with the court's finding or
conclusion.
The denial of attorney's fees is affirmed but the child
custody order is hereby vacated and this cause remanded for
further findings as required by this opinion.
We concur:
Chief Justice