No. 84-308
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
IN RE MARRIAGE OF
ANN S. YOUNGS,
Petitioner and Respondent,
and
STEVE J. YOUNGS,
Respondent and Appellant.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable Frank Davis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Joseph C. Engel, 111, Butte, Montana
For Respondent :
Burgess, Joyce & Whelan; John W. Whelan, Butte, Montana
Submitted on Briefs: Jan. 18, 1985
Decided: April 2, 1985
Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
The husband appeals an order of custody and division of
marital property made by the Silver Bow County District
Court.
The parties were married in 1981 and upon petition of
the wife divorced in 1984. Ann Youngs requested custody of
the two minor children, aged thirty months and eighteen
months at the time of trial. The husband, Steve Youngs,
cross-petitioned for custody of the children and for all the
property acquired during the marriage.
The District Court, after a hearing held March 9, 1984,
dissolved the marriage, awarded custody of the children to
the mother, ordered Steve Youngs to pay Ann Youngs $250 per
month for support and maintenance, divided the property among
the parties and awarded the petitioner fees and costs. The
award of fees was made by the trial court to compensate Ann
Youngs for defending what was found to be a frivolous
cross-petition and in the words of the court: "apparently
filed out of pique and spite."
Appellant raises the following issues:
I. Did the District Court err by not awarding custody
of the children to the husband on the grounds of the wife's
alleged sexual misconduct?
2. Did the District Court improperly divide the mari-
tal property?
3. Was the award of fees and costs to the wife error?
The three issues raised by appellant may be addressed
summarily. The husband alleged through circumstantial obser-
vations that his wife shared a common room with her children
and a male friend with whom she was temporarily living. Ann
Youngs denied any intimate relations with this individual.
The living situation constitutes the alleged sexual miscon-
duct of appellant's first issue. Appellant relies on
Connolly v. Connolly (Mont. 1984), 680 P.2d 568, 4 1 St.Rep.
720, for the proposition that this conduct is grounds for a
court to order a change of custody. Counsel's reliance on
this case is misplaced.
In Connolly the fact that a married man had an intimate
sexual. relationship with Mrs. Connolly was one of several
grounds that led this Court to affirm the lower court's
decision to change custody. Another concern reflected in the
District Court's findings was that Mrs. Connolly was shown to
have left her five and six year old children unattended on
numerous occasions. Furthermore, in Connolly, as in the
present case, findings of fact are not set aside unless shown
to be clearly erroneous. Rule 52 (b), M.R.Civ.P. The trial
court found here that Ann Youngs was a fit and proper parent.
Since there was substantial evidence presented to the Dis-
trict Court on this issue, we affirm the award of custody to
Ann Youngs.
The husband alleges that the division of marital prop-
erty was inequitable and contrary to law. We disagree. The
order of the District Court recites that the parties' mobile
home was given to the wife as a form of contribution to
assist. her and the children in the burden of adjusting to a
new and different role. Similarly, the vehicle awarded the
wife was marital property, subject to distribution, and
absent a showing that the lower court acted arbitrarily
without employment of conscientious judgment or exceeded the
bounds of reason, we will not alter the lower court's judg-
ment. Stratford v. Stratford (Mont. 1981), 631 P.2d 296, 38
St.Rep. 1093. The record discloses no such abuse of
discretion.
The only abuse of discretion we find concerns the
judgment of appellant's attorney in filing the
cross-petition. For this reason, we affirm the trial court's
award of fees and cost. The lower court is statutorily
vested with power to award fees and costs. Section 40-4-110,
MCA .
The judgment is affirmed.
We concur: