No. 86-64
IN THE SUPREYE COURT OF THE STATF OF MObTTANA
1986
IN RE THE MARRIAGE OF
RAE MAFTF KUZARA,
Petitioner and Respondent,
and
ZOSEPH KIM KUZARA,
Respondent and Appellant.
APPEAL FROM: District Court of the Fourteenth Judicial District,
In and for the County of Musselshell,
The Honorable Zoseph B. Gary, Judge presiding.
COT.JNSET_. RECORD :
OF
For Appellant:
L?oseph K. Kuzara, pro se, Roundup, Montana
For Respondent:
Ralph I>. Herriott, Rillings, Montana
Submitted on Briefs: August 28, 1986
Decided: November 20, 1986
Clerk
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.
Appellant Joseph Kim Kuzara appeals from a final award
of joint custody and denial of costs on appeal from the
Musselshell County District Court after a hearing on remand
from this Court for sufficient findings of fact relating to
the best interests of the Kuzara children.
We affirm the District Court in part but remand the case
with instructions to amend the decree to include reasons for
not ordering child support and to include the other
applicable portions of the original dissolution decree that
had been omitted from the final decree.
The issues on appeal are:
1. Did the District Court err j n denying appellant's
.
motion for costs on the original appeal?
2. Did the District Court err after ordering home
investigations and reports by not making them available to
the parties for review?
3. Do the District Court's findings support an award of
joint custody?
4. Did the District Court err in failing to state
reasons for not ordering child support and a joint cust.ody
implementation plan?
The parties were married on June 22, 1968, and two
children were born: Joseph Ray Kuzara on November 10, 1970
and David Michael Kuzara on October 14, 1974. The
dissolution was jnitiated by the mother on February 17, 1983,
and the matter was heard on July 7 2 , 1983. A decree of
dissolution signed on Auqust 8, 1983, provided for i o i - n t
custody of the parties1 minor children with physical custody
to remain in the father.
In addition, the original decree provided that the minor
children spend alternating weekends and Easter, Labor Day,
Thanksgiving and Christmas with respondent. Thirty days each
summer vacation were to be spent with the respondent mother
as well.
On September 7, 1983, the father filed a notice of
appeal of the dissolution decree. On October 5, 1983, a show
cause order was issued by the District Court, upon motion of
the mother, seeking termination of the joint custody
provisions of the decree and that the father be held i.r;
contempt of court for failing to abide by the decree. A
hearing on the order to show cause was held on November 4,
1983, at which time the father was found to be in contempt.
Because of his objections to the termination of joint
custody, no consideration of the requested change of custody
was made at that time.
Thereafter the father applied for a writ of review
before this Court and that action was then consolidated with
the appeal of the decree of dissolution by this Court. The
mother did not appear on the original appeals on these
matters. In November, 1983, the parties1 children, through
their attorney, moved this Court for permission to appear as
amici curiae and a brief was then filed on their behalf.
In our June 21, 1984 order, this Court denied the
application for appellant's writ of review of his contempt
proceeding. In Re Mar. of Kuzara (Mont. 1984), 682 P.2d
1371, 41 St.Rep. 1201. We vacated the dissolution decree and
remanded with directions for a hearing to determtne
sufficient findings regarding the children's desires as to
custody and best interests of the Kuzara children.
In August, 1985, the District Court held a hearing
pursuant to the above order. The Kuzara children were
interviewed in chambers. Both children said they would
"probably prefer" to stay with their father, the appellant,
and work out visitation with their mother. They liked livina
in Roundup since they grew up there and all their friends and
sports activities were there. Thus they did not wish to move
to Billings with their mother.
On October 23, 1985, the District Court found it to be
in the children's interest to grant joint custody once again.
The findings stated that the home investigation reports for
both parents were evaluated by the District Court. Appellant
was awarded physical custody and a flexible visitat.ion
schedule was delineated for the respondent.
The court also found that based on 5 25-10-104, MCA and
State ex rel. Nesbitt v. District Court (1946), 119 Mont.
138, 173 P.2d 412, no significant legal issues were reversed
in favor of either party and the parties were ordered to pay
their own costs on the original appeal. Both parties were
ordered to share the cost of counsel for the minor children.
Appell.antls first contention is that the District Court
abused its discretion when it denied his motion for costs on
the original appeal because costs should automatically have
been awarded to him under Rule 33, I4.R.App.Civ.P.
Rule 33, M.R.App.Civ.P. reads in part as follows:
(d) Costs in original proceedings ...
and if not
otherwise provided by the court in its decision,
will be awarded to the successful party against the
ether party.. ..
Appellant contends he was the successful party on the
original appeal. The District Court disagreed with this
contention and held that the slight modification in the
previous decree did not make appellant the successful party
on the appeal.
The interpretation of the term "successful party" was
discussed by this Court in State ex rel. Nesbitt v. District
Court, supra. In that case, defendant appealed an award for
the plaintiff and this Court decreased the amount that had
originally been awarded to the plaintiff. This Court found
that if appellant was successful, costs could be recovered
from the other party pursuant to the statute. We held that
while the award was slightly decreased this could not be
considered a success for the appellant. No legal questions
were reversed.
In this case, there were minor changes made in the grant
of custody and no legal questions were reversed. Nesbitt is
persuasive here. We affirm the decision to hold each party
responsible for its own costs on the original appeal and that
the costs of the children's lawyer be equally divided between
the parties.
Appellant next contends that the District Court erred in
not making the home investigation reports available to the
parties or providing an opportunity for cross-examination on
them.
The hearing on remand was held in August, 1985. At the
hearing, motions were made and granted for a home
investigation and report on each party's home. The reports
were received by the District Court at the end of September
and early October. Neither party received a copy of the
reports.
The reports indicated that both homes appeared suitable
for the children and that the children's custodial desires
should be taken into account in reaching a decision.
Section 40-4-215(3), MCA, says:
(3) The court shall mail the investigator's report
to counsel and to any party not represented by
counsel at least 10 days prior to the hearing. The
investigator shall make available to counsel and to
any party not represented by counsel the
investigator's file of underlying data and reports,
complete texts of diagnostic reports made to the
investigator pursuant to the provisions of
subsection ( 2 ) , and the names and addresses of all
persons whom the investigator has consulted. Any
party to the proceeding may call the investigator
and any person whom he has consulted for
cross-examination. A party may not waive his right
of cross-examination prior to the hearing.
The District Court did err in not forwarding copies of
the reports to counsel upon their receipt. Copies should
have been mailed for review by counsel pursuant to §
40-4-215, MCA. However, a review of the record indicates
that. the reports provided no additional information or
insight for the District Court to rely on in making a custody
determination. Therefore, in the specific limited.
circumstances or' this case, we hold that such error was
harmless.
Appellant's third contention is that the Distrjct
Court's findings do not support an award of joint custody.
In particular, he claims that the findings are not specifi-c
with regard to the children's wishes, d.o not reflect the
desires of the children, and do not contain any reasons why
the desires of the children were not followed.
We do not agree.
The Kuzara children were interviewed in chambers by the
trial judge at the remand hearing and their desires were
ascertained. They indicated they wanted to reside in
finding will not be disturbed and appellant must facilitate
the decree as ordered.
The next contention raised by appellant is that the
District Court erred in not ordering a custody implementation
plan. This is not supported by the evidence. Custody
proposals were presented and the District Court chose an
arrangement which was flexible enough to incorporate the
concerns of the children and the parties. There was no error
in this regard.
Finally, appellant claims the District Court erred in
failing to state reasons for not ordering respondent to pay
child support. In October, 1983, S 40-4-2@4(2), MCA, was
enacted. It states that:
(2) If the court does not order a parent owing a
duty of support to a child to pay any amount for
the child's support, the court shall state the
reasons for not ordering child support.
Respondent argues that child support provisions were covered
by the August 8, 1983 decree and these original provisions
remained in effect.
On June 21, 1984, this Court vacated the original decree
and remanded the case. Thus the original decree was no
longer in effect. Section 40-4-204(2), MCA, was effective
law at the time this second decree was signed. The District
Court did err by omitting the reasons for not ordering child
support and by not including the rest of the applicable terms
from the original decree in the final decree. This case is
therefore remanded to the District Court with instructions to
amend the October 23, 1985 decree to include reasons for not
ordering child support and to include the other applicable
port-ions of the dissolution decree that were included in the
original decree but omitted in the final decree. The award
of joint custody and costs on a,a
p&l are fully affirmed.
We Concur: ' A
L Justices
Roundup, Montana, with their father; to remain in school in
Roundup; and to work out a suitable visitation arrangement
with their mother. The youngest son indicated he had not
liked the past joint custody arrangements but did want to
continue seeing his mother. The boys expressed concern that
they be able to continue in sports and that weekend
visitation not interfere with those events. They also
indicated some problems gettinq alonq with their new
stepfather in Billings.
Physical custody was granted to the father. The
children were allowed to remain in the Roundup school system.
A flexible visitation plan was provided so that visitation
with their mother could occur six weekends each quarter.
Those weekends were to be worked out between the children and
their mother without interference from their father.
Appellant's claim that the judge did not properly
consider the children's desires is meritless. A judge need
not go along with a child's simple statement that he does not
like joint custody. A review of the findings of fact and
conclusions of law reveals that the District Court considered
the desires of the children as instructed by this Court. It
incorporated those desires into the decree in a manner it
deemed to be in the children's best interest. It appears
that appellant would only be satisfied with an extremely
limited grant of visitation to respondent. Whether that
grant of custody was sole custody or joint custody, S
40-4-223, MCA, does not allow appellant to deny respondent
the opportunity for frequent and continuing contacts with her
children. Here joint custody was found by the District Court
to be in the best interests of the Kuzara children. That