No. 84-335
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
IN RE MARRIAGE OF
PHILIP J. MILANOVICH,
Petitioner and Appellant,
and
ROSEMARY MILANOVICH ,
Respondent and Respondent.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable Robert Boyd, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Hull & Sherlock; Jeffrey M. Sherlock, Helena,
Montana
For Respondent :
Deirdre Caughlan, Butte, Montana
Submitted on Briefs: Nov. 29, 1984
Decided: ~ p r i l8, 1985
Filed:
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Philip J. Milanovich (Philip) appeals from the order of
the District Court of Silver Bow County dated June 21, 1984,
fixing attorney's fees for Rosemary J. Milanovich (Rosemary)
in the sum of $1,727.00 for services rendered prior to the
entry of this Court's order of February 16, 1982 and for
attorneys' fees of $750.50 for services required following
that order. We affirm the awards.
The issues presented for review are:
1. Did the District Court err in its order of June 21,
1984, awarding $1,727.00 for attorneys' fees as originally
fixed by the order of March 10, 1982?
2. Did the District Court err in its order of June 21,
1984, fixing $757.50 as attorneys' fees pursuant to the
specific ord.er of the Supreme Court?
The parties came before this Court in Milanovich v.
Milanovich (Mont. 1982), 655 P.2d 959, 39 St.Rep. 1554
(Milanovich I) . Milanovich I sets out the continuing prob-
lems in this divorce proceeding, which was commenced in 1975
and involved the custody of four minor children. In
Milanovich I, this Court concluded basically as follows:
1. It could not review the lower court's finding of
contempt on an appeal.
2. In rendering its decision on visitation rights, the
District Court erred in failing to allow Philip to present
psychiatric evidence pertaining to Rosemary.
3. The District Court erred in failing to make specific
findings as to the children's wishes regarding custody.
4. The District Court erred in failing to appoint an
attorney for the children.
In Milanovich I, the Court pointed out tha.t Rosemary was
fit to have temporary custody of the children and that
immediate visitation rights were to he given to her. This
Court directed the District Court to fix and order attorneys'
fees to be paid by Philip to Rosemary. Fees were assessed in
the amount of $757.50 by the District Court in its order of
June 21, 1984.
Milanovich v. Milanovich (Mont. 1982), 655 P.2d 963,
39 St.Rep. 2146 (Milanovich 11) , addressed the petition for
writ of review of the contempt order issued by the District
Court on February 16, 1982. This Court affirmed that con-
tempt order in Milanovich I1 .
After Milanovich I and Milanovich 11, the District Court
conducted a hearing on Rosemary's request for a determination
of fees. This resulted in the District Court's order dated
June 21, 1984, awarding $1,727.00 as attorneys' fees, as
originally fixed by a prior order of the District Court, and
$757.50 as costs a.nd fees incurred in connection with Rose-
mary's motion to compel Philip's compliance with the District
Court's visitation order. Philip appeals the order awarding
fees.
I
Did the District Court err in its order of June 21,
1984, awarding $1,727 for attorneys' fees ba.sed upon the
District Court's order of March 10, 1982?
As previously indicated, the award of $1,745 was origi-
nally made by the District Court on March 10, 1982, prior to
both Milanovich I and Milanovich 11. With a different judge
presiding, the District Court issued an order on June 21,
1984, that awarded substantially the same amount for the
services in question as had been awarded on March 10, 1982.
Philip contends the award was improper because Milanovich I
reversed the judgment of the District Court. The only excep-
tion from that reversal was the contempt holding, which is
not a part of Milanovich I. Philip argues that as a result
of Milanovich I, the March 10, 1982 determination of fees was
cancelled.
That contention disregards Mil.an.ovich11, wherein this
Court affirmed the contempt order of the District Court. As
we review the order, dated February 16, 1982, which was
affirmed by Milanovich 11, we find the following finding and
conclusion:
"11. That the Court hereby finds that the Plain-
tiff's conduct towards the Defendant resulting in
the a.ctionnow before the Court is vexacious [vexa-
tious], harrassing and unreasons-ble and. the Defen-
dant is entitled to have her reasonable attorney's
fees paid by the Plaintiff."
That order of the District Court found Philip guilty of
contempt, fined him $500, sentenced him to five days in jail
with the sentence to be suspended for one year upon compli-
ance with the court's order, and further ordered a hearing to
determine the amount of attorneys' fees to which Rosemary was
entitled.
The February 16, 1982 order primarily addresses the
contempt on the part of Philip and the penalties attached as
a result of that contempt. The essential elements of the
February 16, 1982 contempt order were affirmed in
Milanovich 11. As a result, the award of attorneys' fees by
order dated March 10, 1982 was affirmed, even though the
amount was reduced from $1745.00 to $1727.00.
We approve and affirm the award of $1,727.00 for attor-
neys' fees.
Did the District Court err in its order of June 21,
1984, fixing $757.50 as attorneys' fees pursuant to the
specific order of the Supreme Court?
In substance, Philip contends that a portion of such
award is proper, but argues that there was not a sufficient
connection between other services performed. and. the motion in
question. Philip therefore requests a reduction in the award
In Talmage v. Gruss (Mont. 19831, 658 P-2d 419,
40 St.Rep. 176, we set forth in detail the rules to be ap-
plied in the fixing of attorneys' fee. The following state-
ment from that case is particularly pertinent:
"The amount fixed as attorney fees is largely
discretionary with the District Court, and we will
not disturb its judgment in the absence of an abuse
of that discretion." 658 P.2d at 420, 40 St.Rep.
at 177.
The record contains substantial evidence to support the
conclusions of the District Court. We find no abuse of
discretion. The award of $757.50 is affirmed.
Defendant Rosemary requests costs be assessed for a
frivol-ous appeal. In view of the confusing state of the
record and the possibility of good faith misunderstanding on
the part of counsel, we will not assess such costs. However,
we do point out to counsel that this is the third time in
which this bitterly-fought matter has been before us. We
will carefully consider the propriety of further proceedings
before this Court.
We concur: rn
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Justice