NO. 8 8 - 1 7
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
IN RE THE MARRIAGE OF
RONALD THOMAS WEST,
Petitioner and Appellant,
and
REBECCA BIRNEL WEST,
Respondent and Respondent.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Gordon Bennett, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Ronald Thomas West, pro se, Helena, Montana
For Respondent:
Antonina Vaznelis, Helena, Montana
Submitted on Briefs: June 2, 1 9 8 8
Decided: July 19, 1988
Filed: 'IJUL 191988-
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This appeal marks the culmination of Ronald West's
three-year long battle to amend the parties' dissolution of
marriage decree so as to give him sole and exclusive custody
of the couple's two sons, ages eight and seven. The District
Court of the First Judicial District in and for Lewis and
Clark County entered findings of fact, conclusions of law and
an order in December 1 9 8 7 finding no evidence that father is
entitled to sole custody, retaining the dissolution decree's
joint custody order, and granting primary custody to Rebecca
West, the mother. F e affirm the decision of the District
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Court.
The Wests' marriage was dissolved in January 1 9 8 1 . At
that time they had one son and Rebecca was pregnant with the
second. A review of the record indicates that the
dissolution is bitter and the parties have had several
clashes over exercise of the joint custody and visitation
rights thereto. In July 1 9 8 5 , the father filed his original-
motion to modify the custody arrangement. This motion was
prompted by Rebecca's insistence that the boys, who at that
time were in the custody of their father, attend the ceremony
at which she married her second husband. The father granted
this visitation privilege, as well as one several days later,
when the mother's family gathered to celebrate her
remarriage. However, the sons were not returned to the
father and he alleged that the mother and her new husband
transported them to Iowa, a direct contravention of the
District Court's prohibition of removing the children from
the state. The mother, in turn, says she merely removed the
children to her home in Flathead County, Montana. However,
she does admit that she later moved her sons to Iowa to be
closer to her new husband, despite the District Court's
temporary restraining order of July 9, 1985 prohibiting
either party from removing the children from the state. She
returned the children to their father after he protested
their absence and paid their airfare. On December 12, 1985,
the District Court granted temporary custody to the father.
A hearing was held on August 18, 1986, at which both
sides presented evidence. At the conclusion of that hearing,
the District Court established further guidelines for joint
custody. He ordered that the boys were to be placed in
primary custody of their father for the next six months.
During this time, their mother, whose second marriage already
had ended, was to establish residence in Helena, enjoy
liberal visitation rights, enjoy primary custody of the boys
for the last six months of the succeeding year, and work with
the father to establish a practical and viable means of
sharing custody. The mother did establish residency in
Helena and did take custody of the boys at a point six months
after the District Court's order. However, she then moved
back to Flathead County, where she undertook employment with
the United States Forest Service. Another hearing was held
in the District Court on August 19, 1987, at which time the
court considered the father's motion for sole and exclusive
custody as well as heard testimony about a proper custody
schedule under joint custody.
The law in Montana favors joint custody. See,
5 40-4-222, MCA. In order to amend the original decree's
award of joint custody, the father must show a change of
circumstances under 5 40-4-219, MCA, that represents such a
serious physical, mental, moral or emotional danger to the
children that a modification of custody would be in the
children's best interest. Before the August 1987 hearing,
the District Court specifically noted this burden and. the
father's former counsel agreed that such was the burden borne
by the father.
The father, acting pro se on his appeal from the
District Court's denial of his motion for modification,
argues :
1. the District Court erred in denying his motion;
2. the District Court erred in giving primary custody
of the children to the mother;
3. the District Court erred in ordering him to pay
$250 per month per child in support to the mother; and
4. the District Court erred in awarding the mother
costs and attorney's fees of $2,250.
In addition, the mother enters a cross appeal asking
that she be awarded damages and costs on appeal, pursuant to
Rules 32 and 33 (a), M.R.App.P., since the District Court in
its December 13, 1987 order concluded that:
2. There has been no showing whatever
that petitioner is entitled to sole
custody and this entire proceeding must
be viewed as an intentional course of
harassment, delay, obstruction and abuse
of process, highly detrimental to the
best interest of the children.
The primary duty of deciding proper custody of children
lies with the District Court and all reasonable presumptions
as to the correctness of the District Court's determination
will be made. In re the Marriage of Robbins (Mont. 19851,
711 P.2d 1347, 1350, 42 St.Rep. 1897, 1900; In re Gore
(1977), 174 Mont. 321, 325, 570 P.2d 1110, 1112; Foss v.
Leiffer (1976), 170 Mont. 97, 100, 550 P.2d 1309, 1311. We
will not disturb the District Court's judgment unless there
is a mistake of law or a finding of fact not supported by
credible evidence amounting to an abuse of discretion. Solie
v. Solie (1977), 172 Mont. 132, 137, 561 P.2d 443, 446.
Here the father claims the court erred by expressing
its decision on modification of custody before Lowell Luke, a
clinical social worker, had prepared his report on the homes
of the mother and father or testified about the report.
However, the issue as to whether this was proper is moot
since counsel for the father had acceded to the court's
decision to bifurcate the hearing and to proceed with the
hearing on father's motion despite the unavailability of this
witness. This Court will not hold a District Court in error
for a procedure in which the appellant acquiesced at trial
and to which he had not objected. Green v. Green (1978), 176
Mont. 532, 536, 579 P.2d 1235, 1237. Furthermore, no error
lies here because counsel for the father withdrew at trial
that portion of the father's petition seeking sole custody.
The counsel for the father told the court he would "just as
soon keep it [custody] joint. " The appellant must stand or
fall upon the grounds he used at District Court and may not
assert new grounds on appeal. McAlpine v. Midland Electric
Co. (Mont. 1981), 634 P.2d 1166, 1168, 38 St.Rep. 1577, 1580.
Because the motion for sole custody was excised from the
father's petition at hearing, it was not error for the
District Court to note for the record that it had been
removed.
Next the District Court considered where the children
should live for the 1987-88 school year. It awarded primary
custody to the mother with two and one-half months of primary
custody for the father during the summer vacation as well as
visitation periods on certain weekends and holidays. This
decision is consistent with the report to the court of Lowell
Luke, who reported in September 1987:
My recommendation is that Rebecca be the
primary parent during the school year
with liberal visitation rights during
holidays and summers for Ron. I think it
is imperative that the boys be in
therapy. This will guarantee that their
interests are kept in mind. They will
need some help in understanding their
feelings and situation they must cope
with ... What is important is that we
build the emotional needs of the children
into the process so that what is best for
the boys will take precedence over the
parents' issues.
Such a ruling is supported by substantial evidence that
it would be in the children's best interest to reside with
their mother during the entire school year since both
children were having difficulty at school and the parents
resided in different towns making 50-50 joint custody
untenable. This does not appear to be an abuse of discretion
considering the children's desire, expressed to various
social workers, to live with their mother. Because there is
not a clear preponderance against the court's findings, we
will not disturb them. In re the Marriage of Cook (Mont.
1986), 725 P.2d 562, 565, 43 St.Rep. 1732, 1736.
Section 40-4-204, MCA, provides that the District Court
may order either parent to pay a reasonable amount for
support of the children after considering, inter alia, the
financial resources of the children and the financial
resources of the noncustodial parent. In this case, the
court noted that the children would be living primarily with
their mother, who earns $800 per month in seasonal employment
as a forest worker and works as a waitress during other
months. The father, on the other hand, collects $2,300 per
month in disability payments from the Veterans Administration
and Social Security. Such findings represent substantial
credible evidence of the children's need for support and the
father's ability to pay it. In re Marriage of Alt (Mont.
1985), 708 P.2d 258, 261, 42 St.Rep. 1621, 1626. No abuse of
discretion is apparent.
Section 40-4-219(4), MCA, provides:
Attorney fees and costs shall be assessed
against a party seeking modification if
the court finds that the modification
action is vexatious and constitutes
harassment. (Emphasis added. )
The father continually implied that the mother and her
male associates were subjecting the children to sexual and
physical abuse and not keeping the children clean. The proof
as found in transcripts of the hearings was less than
convincing. The District Court determined that the father's
action was intended to harass, obstruct and delay the
mother's rights to joint custody and was an abuse of process
that was "highly detrimental to the best interest of the
children." Whenever in a modification of custody proceeding
the court finds harassment, the statute commands it to levy
attorney's fees and costs against the proponent. That was
properly done in this case.
The District Court's interpretation of father's motion
as harassment developed after that particular court had
approved the original dissolution of marriage decree and had
presided over several hearings within a two-year time frame
to determine if joint custody should be modified. We defer
to the District Court's characterization of the motions as
harassment because it was in a much better position to
determine the merit, or lack thereof, in the father's motion.
Apart from the statute allowing an award of attorney's
fees, the District Court also may award attorney's fees as
equitable relief absent an abuse of discretion. In re
Marriage of Hereford (Mont. 1986), 723 P.2d 960, 962, 43
St.Rep. 1508, 1510. There was no abuse of discretion here
since the father, who receives monthly benefit checks for
total disability, was continually taking mother to court to
challenge her interest in joint custody on charges that were
so lacking that they were abandoned at trial.
Rule 32, M.R.App.P., allows this Court to tax the costs
of a meritless appeal to the appellant. Such sanctions are
allowed only when reasonable grounds do not exist for an
appeal. Searight v. Cimino (Mont. 1988), 748 P.2d 948, 952,
45 St.Rep. 46, 52; Erdman v. C & C Sales, Inc. (1978), 176
Mont. 177, 184, 577 P.2d 55, 59. We have found no reasonable
grounds for this appeal. This is borne out by the fact that
the very heart of father's appeal, sole custody of the
children, is inserted and withdrawn from this case with the
regularity of a yo-yo. This is a meritless appeal designed
to put the mother to the expense again of protecting her
right to joint custody. We will have none of that.
We affirm and remand for determination of reasonable
attorney's fees and costs on appeal.
Justices
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