No. 85-476
I N THE SUPREME COURT OF THE STATE OF MONTANA
1986
I N RE THE MARRIAGE OF
JACQUELINE L E E NALIVKA,
P e t i t i o n e r and A p p e l l a n t ,
and
JOHN PETER NALIVKA,
R e s p o n d e n t and R e s p o n d e n t .
APPEAL FROM: D i s t r i c t C o u r t of t h e T w e l f t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of H i l l ,
T h e H o n o r a b l e C h a n E t t i e n , Judge p r e s i d i n g .
COUNSEL OF RECORD:
For A p p e l l a n t :
James, Gray & McCafferty; Brian Bulger, G r e a t Falls,
Montana.
F o r Respondent:
Morrison, B a r r o n & Young; R o b e r t D. Morrison, H a v r e ,
Montana
S u b m i t t e d on B r i e f s : M a r c h 2 8 , 1986
Decided: J u n e 12, 1 9 8 6
.JUN 127986
Filed:
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This is an appeal by the wife from an order of custody
made by the District Court of the Twelfth Judicial District,
Hill County, the Honorable Chan Ettien presiding. We affirm.
Jacqueline Nalivka ("wife") and John Nalivka
("husband") were married in 1978 in Havre, Montana. Two
children were born of the marriage, namely Roman and Suzanne
who were five years of age and three years of age,
respectively, at the time of trial. Wife also had a minor
child from a previous marriage named Jennifer. No attempt
was ever made by husband to adopt Jennifer and therefore
husband has no standing concerning her custody.
At the time of trial, wife was 26 years of age and had
resided in Havre for ten years. She was a homemaker and was
attending Northern Montana College on a full-time basis in
pursuit of a degree in special education. Currently, wife is
residing in Billings, Montana, in order to complete her work
toward a degree in special education.
At the time of trial, husband was 30 years of age and a
partner in a family owned business named "Pizza and Catering
Kitchen" in Havre. Husband has resided in Havre his entire
life.
After wife filed her petition for dissolution in
January of 1984 and husband thereafter responded, trial of
this matter was held in April of 1985. The parties had
previously agreed to a division of their marital property and
also neither party requested maintenance, so these issues
were not in dispute during trial. Also husband agreed to pay
wife her requested child support if she were awarded custody
of the children. Therefore, the principal issue to be
decided by the trial court was the matter of custody
regarding Roman and Suzanne.
In July of 1985, the trial court issued its findings of
fact, conclusions of law, and decree which dissolved the
marriage of the parties and ordered in part the following:
1. Husband shall have legal custody of the children
(Roman and Suzanne) at all times, and their physical custody
from August 24 to June 7 of each calendar year.
2. Wife shall have extended visitation and physical
custody of the children from June 7 to August 23 of each
calendar year.
3. While husband and wife are within a fifty-mile
radius of each other, each non-custodial parent shall have
the privilege of visitation on alternating weekends, with
each non-custodial parent being responsible for picking the
children up and returning them to the custodial parent.
4. Nothing herein shall limit agreed visitation
periods.
5. Wife shall pay her own attorney's fees.
In light of the above trial court order, wife now
presents the following issues for review:
1. Was the trial court's rejection without explanation
of joint custody as requested by both parties error?
2. Did the trial court err in refusing to make
findings concerning the interrelationship of all the children
as mandated by § 40-4-212(3), MCA?
3. Was the grant of sole custody to husband in the
children's best interests?
4. Is the fifty-mile radius limitation imposed by the
trial court reasonable and in the best interests of the
children?
5. Did the trial court err in refusing to order
husband to pay wife's attorney's fees?
Custodv
The first three issues presented by wife may be
discussed together.
Wife points out at the beginning of trial she put the
court on notice that she would not object to an award of
joint custody regarding Roman and Suzanne. Further, wife
notes that both parties requested joint custody in their
proposed findings of fact. Wife also asserts that the
parties' request for joint custody triggered the provisions
of S 40-4-224, MCA (1983), which states in pertinent part:
(1) Upon application of either parent or
both parents for joint custody, the court
shall consider whether or not joint
custody is in the best interests 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.
Wife now argues a close reading of the trial court's
findings of fact and conclusions of law does not contain any
indication of why the parties' request for joint custody was
rejected. Wife points out this type of omission by the trial
court has been held to constitute reversible error. See,
Murphy v. Murphy (Mont. 1983), 666 P.2d 755, 40 St.Rep. 1188.
Therefore, wife argues, because the trial court's findings
and conclusions do not comply with S 40-4-224, MCA (1983),
the custody award must be vacated and this cause remanded for
further proceedings. We disagree.
The trial court made it clear at the outset of trial
that although joint custody had been requested by both
parties, it would make its determination of custody based
only upon what was in the best interests of the children:
"Of course, you understand that the court must award in the
best interests of the children even if there is an
agreement."
Judge Ettien went on in his decision to make numerous
and specific findings which clearly reflected why it would
not be in the best interests of the children to be placed in
the joint custody of the parties.
1. Wife is chronically dirty and slovenly in the care
of her house and her children. She has not made even a
pretense of maintaining a semblance of cleanliness and order
in her home during the pendency of this action.
2. The complete lack of sanitation in her housekeeping
and child care, and her indifference in serving nourishing
food to the children are a threat to their health, and an
invitation to the children to adopt similar habits.
3. The above is in contrast to her own meticulous
dress and grooming when she is pursuing her outside
interests.
4. Wife, for now and the foreseeable future, is more
interested in obtaining her personal ends. This, coupled
with her lack of interest in housekeeping and child care,
will not provide the children with a homelife which they need
now and in the foreseeable future.
5. Husband appears significantly more interested and
dedicated to the welfare of the children. While it is
recognized both parents love their children and want the best
for them, husband's actions show a far deeper concern for the
good of the children than those of wife.
6. It is not in the best interests of the children to
be in joint custody of the parties, but in the custodial care
of the husband subject to visitation privileges in the
parents as set forth herein.
In light of these findings, we hold the trial court
adequately followed the requirements of S 40-4-224, MCA
(f983), "in 'stating why it rejected the parties' request for
an award of joint custody.
We further hold the trial court correctly followed the
applicable law in making its award of legal custody to
husband. As wife correctly points out, an award of custody
is to be determined in accordance with the best interests of
the children. In determining custody in accordance with
these interests, the trial court is statutorily required to
consider a number of factors pursuant to S 40-4-212, MCA.
The court shall determine the custody in
accordance with the best interest of the
child. The court shall consider all
relevant factors including: (1) the
wishes of the child's parent or parents
as to his custody; (2) the wishes of the
child as to his custodian; (3) the
interaction and interrelation of the
child with his parent or parents, his
siblings, and any other person who may
significantly affect the child's best
interest; (4) the child's adjustment to
his home, school, and community; and (5)
the mental and physical health of all
individuals involved.
Wife now argues the trial court erred in not making
specific findings which addressed the requirements listed in
S 40-4-212, especially with regard to subsection (3). We
note that although the trial court did not specifically
discuss the factors set out in S 40-4-212, it did make
numerous findings which generally satisfied the statute.
This Court has stated that a trial court's findings need not
be in any particular form if there is substantial credible
evidence to support the trial judge's judgment on the merits.
See, In ReMarriage of Baron (1978), 177 Mont. 161, 580 P.2d
936. Although this Court would prefer a trial court to
specifically address the factors listed in S 40-4-212 in its
findings, failure to do so is not always fatal.
In the present case, Judge Ettien made numerous
findings which basically addressed the factors set out in
S 40-4-212. These findings were also supported by
substantial credible evidence in the record. Specifically,
with regard to subsection (3) (the interaction and
interrelationship of the children with others), Judge Ettien
found that wife was more interested in satisfying her own
personal needs, and this coupled with her lack of interest in
housekeeping and child care, would not provide the children
with a homelife which they needed now and in the foreseeable
future. Also, Judge Ettien noted that husband had a deeper
concern for the good of the children than did wife.
We hold that although the trial court did not
specifically discuss the guidelines contained in S 40-4-212,
it did adequately consider these items in making its award of
custody to husband.
We further note that after reviewing the record in this
case, there are several factors that point favorably toward
wife in determining custody of the children. However, we
note it is not a question of the particular fitness of either
parent, but rather what is in the best interests of the
children. As this Court has stated:
The responsibility of deciding custody is
a delicate one which is lodged with the
district court. The judge hearing oral
testimony in such a controversy has a
superior advantage in determining the
same, and his decision ought not to be
disturbed except on a clear showing of
abuse of discretion. [Citing cases. 1
In Re Marriage of Obergfell (Mont. 1985), 708 P.2d 561, 563,
42 St.Rep. 1414, 1417.
We hold the trial court did not abuse its discretion in
awarding husband custody of the children.
Visitation
Under the fourth issue, wife notes the trial court
chose to limit the parties' weekend visitation rights to only
those times when the parties might live within a fifty-mile
radius of each other. Wife now argues neither parties'
visitation rights (especially her's) should be so limited
without a compelling reason being stated by the trial court
in its decision.
In its findings and conclusions (as stated earlier),
the trial court ordered the following:
1. While husband and wife are within a fifty-mile
radius of each other, each non-custodial parent shall have
the privilege of visitation on alternating weekends, with
each non-custodial parent being responsible for picking the
children up and returning them to the custodial parent.
2. Nothing herein shall limit agreed visitation
periods.
We find the above fifty-mile radius limitation imposed
by the trial court to be both reasonable and also in the best
interests of the children. Although the trial court did not
specifically state the reasons why it imposed such a
limitation, its purpose seems clear. As indicated in the
facts section, of this opinion, wife is currently living in
Billings while completing her degree in special education.
The trial court realized that allowing alternating weekend
visitation with the non-custodial parent would be a hardship
on the children (not to mention the parents) if the children
had to travel continuously between Billings and Havre. The
trial court appears to have balanced the benefit of having
the children visit their non-custodial parent every other
weekend with the risk and inconvenience of having the
children travel frequently between Billings and Havre. We
agree with the trial court that a fifty-mile visitation
restriction is not unreasonable and also appears to be in the
best interests of the children.
It is also important to note that the trial court
concluded and ordered that nothing in its decision should be
construed so as to limit agreed visitation periods between
the parties. By this statement the trial court left open to
the parties any visitation arrangements they might agree upon
between themselves. Such an opportunity takes away the
apparent harshness of the fifty-mile radius limitation, and
appears to give wife (and husband) ample opportunity to visit
the children. Further, the parties gave every indication
during trial that liberal visitation arrangements would not
be a problem between them in the future.
Therefore, the fifty-mile radius limitation imposed by
the trial court is not an abuse of its discretion.
Attorney's Fees
Under the last issue, wife contends the trial court
erred in refusing to order husband to pay her attorney's
fees. We disagree.
As both parties are well aware, the awarding of
attorney's fees are governed by § 40-4-110, MCA. This Court
has repeatedly said that the awarding of attorney's fees is
clearly permissive under this statute. Marriage -
of
Obergfell, 708 P.2d at 564.
Wife further correctly points out this Court has stated
in the past that when a trial court refuses to award
attorney's fees under $40-4-110,
i it must indicate its
reasons for refusing to grant such fees. See, In Re Marriage
of Gauthier (1982), 201 Mont. 320, 654 P.2d 517. In the
instant case, the trial court refused to award wife her
attorney's fees and did not indicate any specific reasons for
such a denial. In the past, this lack of specificity by the
trial court would have constituted remandable error, but this
is not always true today. This Court has very recently
adopted a new standard for reviewing a trial court's decision
not to award attorney's fees under 5 40-4-110.
This Court has also stated in the past
"that when the District Court refuses to
award attorney's fees, it must indicate
in the findings of fact, conclusions of
law, or order why such fees were not
awarded." See, Lewis v. Lewis (1982),
198 Mont. 51, 55, 643 P.2d 604, 606, and
cases cited therein. Failure to set
forth the specific reasons for denial of
attorney's fees, we stated in these
earlier cases, constituted remandable
error.
We now hold the rule expressed in the
Lewis opinion, and earlier opinions, to
be revised. Such a rule is much too
harsh to be applied on a general basis.
We hold a more appropriate standard for
reviewing a District Court's decision not
to award attorney's fees under § 40-4-110
is whether the court abused its
discretion in refusing to award such
fees. Such a standard is more in line
with this Court's other standards of
review regarding dissolution actions, and
also is more in line with 5 40-4-110.
In Re the Marriage of Gallinger and Weissman (Mont. 1986) ,
P.2d -
1 -1 - St.Rep. -1 -, (No. 85-465;
decided June 5, 1986) .
In the instant case, we hold the trial court did not
abuse its discretion in refusing to award wife her attorney's
fees. The record indicates the court was well aware of the
financial resources of both parties as required by
5 40-4-110. After considering this information, the court
concluded that neither party was entitled to be awarded
attorney's fees. Although wife clearly is not in as strong a
financial position as husband, the record indicates she still
has sufficient financial means to be responsible for her own
attorney's fees.
The judgment of the District Court is affirmed in all
respects.
We concur: i I