In Re Custody of Rrk

IN THE SUPREME COURT OF THE STATE OF MONTANA
1993

IN RE THE CUSTODY OF
R.R.K., R.D.K., and L.M.K., No. 92-424
Minor Children. )

IN RE THE MARRIAGE OF
JEFF KOLPIN,
Petitioner,
and
JEANNETTE KOLPIN,
Respondent,
No. 92-495
-vs- )

NORMOND and BEVERLY KOLPIN,
Third-Party Petition
and Appellants.

APPEALS FROM: District Court of the Seventh Judicial District, In and
for the County of McCone; the Honorable Richard G.
~hillips,District Court Judge presiding (No. 9 2 - 4 2 4 )
~istrictCourt of the Seventh Judicial District, In and
for the County of Dawson; the Honorable Richard G.
Phillips, District Court Judge presiding (No. 9 2 - 4 9 5 )

COUNSEL OF RECORD:
For Appellant:
Rodd A. Hamman; Calton, Hamman & Wolff, Billings, Montana
For Respondent:
Richard A. Simonton; Simonton, Howe & Schneider,
Glendive, Montana

. . Richard L. Burns, Attorney at Law, Glendive, Montana
-
(for the children)

t Submitted on Briefs: April 20, 1993
Justice Karla M. Gray delivered the Opinion of the Court.

Normond and Beverly Kolpin (the Kolpins) appeal from orders of
the Seventh Judicial District Court, Dawson County, and the Seventh
Judicial District Court, McCone County, denying and dismissing
their efforts to seek custody of their grandchildren, imposing
sanctions and awarding certain attorney's fees. The appeals from
the Dawson County dissolution proceeding and McCone County custody
action were consolidated by this Court. We affirm in part, reverse
in part and remand.
We phrase the issues on appeal as follows:
1) Are non-parents entitled to seek custody of a child under
the Uniform Marriage and Divorce Act, through either an independent
custody proceeding or intervention in a dissolution proceeding?
2) Did the District Court err in imposing Rule 11 sanctions
on the Kolpins in the custody action?

3) Did the District Court err in ordering the Kolpins to pay
Jeff Kolpin's share of the children's attorney's fees in the
dissolution action?
4) Did the District Court err in awarding Jeannette Kolpin
attorney's fees incurred in opposing the Kolpins' motion for a stay
of execution in the dissolution action?
Jeff and Jeannette Kolpin were married in March of 1982. Due
to inadequate health services where the couple resided, Jeannette
soon moved to Billings to live with Jeff's parents, the Kolpins,
pending the birth of her and Jeff's first child. Russell Kolpin
was born on May 21, 1982, and Jeannette and Russell remained with
2
the Kolpins for approximately one month following his birth. In
October, 1983, Jeannette and Russell moved back in with the Kolpins
to facilitate Jeannettefs psychological treatment at a nearby
clinic. During this stay, Jeff and Jeannette's second son,
Raymond, was born on December 16, 1983. Jeannette and the two
children lived with the Kolpins until February, 1984. Jeannette
and the children also lived with the Kolpins for approximately two
months following the birth of a third child, Leanne, on June 26,
1985.

In April, 1987, Jeff and Jeannette brought all three children
to live with the Kolpins while they attempted to work out their
marital difficulties. On April 9, 1987, Jeff Kolpin executed an
affidavit directing the Kolpins to care for the three children; the
document stated that the children were placed in the Kolpinsf care
due to Jeannette's hospitalization and out-patient treatment for
mental disorders. In 1988, Jeff and Jeannette separated. Jeff
moved to Glendive, Montana, and Jeannette moved to her parents1
ranch in Circle, Montana.
All three children continued to live with the Kolpins until
August 5, 1988. On that date, Jeannette and hex parents, Joe and
Elaine Wittkopp, arrived in Billings and told the Kolpins that they
were taking the two younger children on a picnic. Raymond and
Leanne were not returned to the Kolpins at the end of the day;
instead, the Wittkopps took the two children back to Circle.
Russell was visiting his father on the day Raymond and Leanne
were taken to Circle. Russell continued to live in Billings with
the Kolpins until he moved in with Jeff in Glendive in September,
1988. The Kolpins had frequent contact with Russell during the
time he lived with his father. When Jeff began working night
shifts, Beverly Kolpin moved to Glendive and rented the apartment
above Jeff's to care for Russell. After the 1988-89 school year,
Russell and Beverly returned to live in Billings. Russell
continued to live with the Kolpins.
Jeff Kolpin filed a petition for dissolution in February of
1989. As a result of the parents' dispute over child custody, the
District Court appointed an attorney to represent the interests of
the children; the court ordered Jeff to pay for the children's
attorney's fees.
The Kolpins filed a petition for grandparents' visitation
rights as a separate cause of action from the dissolution
proceeding in June, 1989. In October of 1989, they filed a motion
to intervene in the dissolution action, seeking custody of the
three children and joinder of their visitation action with the
dissolution action. After a hearing on the Kolpins' motion for
intervention and joinder, Dawson County District Court Judge Dale
Cox granted the Kolpins' motion for joinder of the visitation claim
with the dissolution action, but denied their motion to intervene
regarding custody. The court did not issue findings, conclusions
or a supporting memorandum with this order.
In November of 1990, in conjunction with a contempt citation
for failure to pay costs assessed against him, the court struck
Jeff's request for custody and issued an order precluding Jeff from
presenting evidence against an award of custody to Jeannette. Jeff
moved for relief from the order, which was denied after a hearing.

Soon after the hearing, Jeff disappeared. Because Jeff's counsel
could not locate him, the court granted counsel's motion to with-
draw from the proceedings. District Court Judge Richard Phillips
assumed jurisdiction of the dissolution proceeding in March, 1991.
In March of 1992, the Kolpins filed an independent petition
for custody of the three children in McCone County, where Raymond
and Leanne resided. Jeannette moved to dismiss the petition and
requested sanctions against the Kolpins under Rule 11, M.R.Civ.P.
The District Court, Judge Phillips presiding, dismissed the
Kolpins' independent petition for custody and awarded Jeannette
attorney's fees under Rule 11, M.R.Civ.P.
Judge Phillips also presided over the hearing in the Dawson

County dissolution action on June 8, 1992. Because Jeannette had
agreed that the Kolpins were entitled to visitation and the court
had denied their motion to intervene regarding custody, the
District Court allowed the Kolpins to present evidence only

regarding the amount of visitation they believed was appropriate.
The District Court issued findings of fact, conclusions of law
and decree of dissolution on July 1, 1992. The court determined
that it was in the best interests of the children to award custody
to Jeannette, with reasonable visitation rights to Jeff and the
Kolpins. The court expressed concerns about Jeannette's ability to
care for the three children but concluded that, with the help of
her parents and sister-in-law, Jeannette could adequately care for
the children in Circle. The District Court also ordered the
Kolpins to pay half of the children's attorney's fees, because Jeff
had "no intention of doing so."
The Kolpins subsequently filed a motion for a stay of
execution regarding Russell's custody. The District Court denied
the stay motion. Although the court concluded the motion was made
in good faith, it ordered the Kolpins to pay Jeannette's attorney's
fees incurred in opposing the motion. This appeal follows.
Are non-parents entitled to seek custody of a child under the
Uniform Marriage and Divorce Act, through either an independent
custody proceeding or intervention in a dissolution proceeding?
The Kolpins contend that 5 40-4-211, MCA, expressly entitles
them to petition for custody of the three children and,
consequently, entitles them to intervene in the dissolution action.
They assert that the District Courts erred as a matter of law in
dismissing their independent petition for custody in McCone County
(DR 92-07) and denying their motion to intervene in Dawson County
(DR 89-011). Our review of a court's legal conclusion is plenary.
Steer, Inc. v. Dep't of Revenue (1990), 245 Mont. 470, 475, 803
P.2d 601, 603.
Section 40-4-211, MCA, sets forth the procedural and
jurisdictional standards for a child custody proceeding under the
Uniform Marriage and Divorce Act (the Act). Subsection (4) of
3 40-4-211, MCA, reads:
(4) A child custody proceeding is commenced in the
district court:
(a) by a parent, by filing a petition:
(i) for dissolution or legal separation; or
(ii) for custody of the child in the county in
6
 which he is permanently resident or found; or
(b) by a person other than a parent, by filing a
petition for custody of the child in the county in
which he is permanently resident or found, but only
if he is not in the physical custody of one of his
parents.
The statute provides three distinct methods of instituting a
child custody proceeding: 1) a parent may file a petition for
dissolution or legal separation; 2) a parent may file a petition
for custody; or 3) a non-parent may file a petition for custody.
This Court must give effect to each provision of the statute; it is
not our function to omit what the legislature has included.
Section 1-2-101, MCA.
The plain language of g 40-4-211(4)(b), MCA, authorizes a non-
parent to commence a custody proceeding by filing a petition.
However, it is equally clear that the non-parent must satisfy the
"standing" requirement by demonstrating that the child is not in
the physical custody of one of his parents. Henderson v. Henderson
(1977), 174 Mont. 1, 5, 568 P.2d 177, 179.
In Henderson, the mother and father each were awarded custody
of one of their children following dissolution of their marriage;
the couple then agreed that the father should retain temporary
custody of both children pending further proceedings. When the
father died unexpectedly, an aunt filed a petition for custody of
both children under g 48-331(4)(b), RCM (1947), the predecessor to
3 40-4-211(4) (b), MCA.
We concluded that "[tlhe aunt did not have standing to begin
a custody proceeding. . ." under the statute. Henderson, 568 P.2d
at 179. Finding no merit in the aunt's argument that she met the
standing requirement because the children were being cared for by
a babysitter at the time of the father's death, we stated:
"Physical custody" is not limited to having actual,
immediate control of the physical presence of the child.
Rather, this phrase relates to the custodial rights
involved in the care and control of the child. [Citations
omitted. ] To interpret this phrase otherwise would allow
a non-parent to file a petition for custody anytime the
child is out of the physical presence of the parent or
parents, even if for a few minutes or under the watchful
eyes of an authorized babysitter.
Henderson, 568 P.2d at 179. We emphasized that, upon the father's
death, the mother assumed the legal right to custody of her
children pursuant to statute. The mother had not relinquished that
custody. Henderson, 568 P.2d at 179. We went on to explain that,
where one'of the parents has physical custody of the child, a non-
parent may seek custody only under the stricter standards of the
abuse, neglect and dependency statutes. Henderson, 568 P.2d at

Thus, pursuant to Henderson, the standing requirement for a
non-parent seeking custody does not depend on who has actual,
physical possession of the child at the moment the petition is
filed. Rather, the court should focus on whether the parent
actually relinquished physical custody of the child and how long
the parent and child were separated.
While Henderson is the only case in which this Court has
focused on the standing requirement contained in g 40-4-211 (4)(b),
MCA, the courts of Illinois have developed a comprehensive body of

case law interpreting Illinois' statutory counterpart. In
accordance with the mandate of 40-4-102, MCA, to apply and
construe the provisions of the Uniform Marriage and Divorce Act
uniformly with those states that have enacted it, we properly look
to the Illinois cases for guidance in further developing Montana
law on this issue.
The Illinois courts have focused on two factors in determining
whether a child is in the physical custody of the parent for
purposes of non-parental standing to commence custody proceedings.
These factors are: 1) whether the parent voluntarily relinquished
physical custody of the child; and 2) the duration of the
separation of the parent and child. See In re Custody of Peterson
(Ill. 1986), 491 N.E.2d 1150, 1152; In re Custody of Barokas (Ill.
App. 1982), 440 N.E.2d 1036, 1042; In re Custody of Menconi (Ill.
App. 1983), 453 N.E.2d 835, 838-9. When these factors are weighed,
the court can then determine whether the child is in the physical
custody of his or her parent for purposes of non-parental standing
to commence a custody proceeding. An examination of two factually
distinct Illinois cases illustrates the interplay between these
factors.
In Menconi, the father asked his parents to care for his child
shortly after her mother died; the child continued to live with her
grandparents for six and a half years. Menconi, 453 N.E. 2d at 838.
The father then appeared and removed the child from the
grandparents' home by force. When he refused to return the child,
the grandparents filed a petition for custody under the Act. The
father argued that the grandparents could not meet the standing
requirement because he had physical custody of his child. Menconi,
453 N.E.2d at 837.

The Illinois Court of Appeals disagreed, stating that the
father could neither gain physical custody nor deprive the
grandparents of physical custody by abducting the child. Menconi,
453 N.E.2d at 838. The court refused to allow the father to gain
an advantage through his wrongful conduct by forcing the
grandparents to proceed under the stricter standards of the
juvenile court act. The court concluded that, because the father
had voluntarily relinquished custody of his child and she had lived
with her grandparents for six and a half years, the grandparents
had standing to seek custody under the Act. Menconi, 453 N.E. 2d at
839.

In Hanson v. McGowan (Ill. App. 1990), 555 N.E.2d 80, 83, a
mother and child lived with the child's paternal grandparents
following the disappearance of the father. The mother left to find
better housing and returned for her child about three days later.
The grandparents refused to relinquish the child and filed a
petition for custody. Hanson, 555 N.E.2d at 81. The Illinois
Court of Appeals concluded that the grandparents did not have
standing to file a petition, as the mother had not relinquished
physical custody of her child. Hanson, 555 N.E.2d at 83. In
contrast to Menconi, the mother voluntarily left her child at the
grandparents, butthe three-day duration of the separation was not
sufficient to divest the mother of physical custody.
The Illinois courts also have clarified a procedural aspect
regarding this issue. Once the standing requirement is met and the
custody proceeding goes forward under the Act, the court determines
custody based on the best interests of the child; a finding of
unfitness is not required. Montgomery v. Roudez (Ill. App. 1987),
509 N.E.2d 499, 501-2.
We adopt the approach of the Illinois courts and conclude that
9 40-4-211(4) (b), MCA, entitles a non-parent to commence a child
custody proceeding by filing a petition, provided the non-parent
can establish standing by demonstrating that the child is not in
the physical custody of his or her parent or parents. To determine
whether the parent has physical custody of the child, the court
must consider whether the parent's initial relinquishment of
physical custody was voluntary and examine the duration of the
separation of parent and child. If the non-parent successfully
establishes standing, the custody determination will be based on
the best interests of the child pursuant to § 40-4-212, MCA.
Jeannette argues that our decision in In re Marriage of Miller
(1992), 251 Mont. 300, 825 P.2d 189, mandates rejection of any
entitlement in non-parents to seek custody under the Act. Indeed,
in the McCone County proceeding, the District Court relied on
Miller in dismissing the Kolpins' petition. According to the
District Court, Miller holds that non-parents may not bring an
independent action for custody and that custody can be taken from
a natural parent only through the procedures set forth in the child
abuse, neglect and dependency statutes. Notwithstanding the
District Court's good faith effort in applying Miller here, Miller
is distinguishable.
In Miller, the mother initially was awarded custody of the
couple's two children and her son Christopher from a prior
relationship. The Department of Family Services subsequently
transferred physical custody of the children from their mother to
Mr. Miller. Three months later, Mr. Miller filed a petition to
modify custody of all three children, arguing that he met the
standing requirement of 5 40-4-211(4) (b), MCA, when he filed the
petition because he had physical custody of all three children. We
concluded that Mr. Miller had met the modification requirements of
5 40-4-219, MCA, as to the two children who were issue of the
marriage. His petition to modify his stepson's custody resulted in
the language relied on by the District Court here.
Miller did not involve an original custody proceeding.
Rather, Mr. Miller sought to modify custody. As such, the
provisions of 5 40-4-211(4), MCA, which address the commencement of
a child custody proceeding, were not applicable there. We held
that a change of custody as to Christopher required the procedures
contained in the child abuse, neglect and dependency statutes.
Miller, 825 P.2d at 193.
In addition, it is clear that Mr. Miller could not have
prevailed on his 5 40-4-211(4) (b), MCA, argument in an original
custody proceeding under the standards enunciated herein. There,
the Department of Family Services removed the children from their
mother pursuant to 5 41-3-301, MCA; Mrs. Miller did not voluntarily
relinquish physical custody of Christopher. Because Mr. Miller
could not have met the standing requirement for a non-parent to
seek custody under the Act, the abuse, neglect and dependency
statutes provided the appropriate avenue regarding custody of
Christopher. See Henderson, 568 P.2d at 181. To apply Miller to
the facts now before us would effectively delete g 40-4-211(4) (b),
MCA, from the Act.
Returning to the Kolpins' independent custody proceeding in
McCone County Cause No. DR 92-07, we express no opinion as to
whether the Kolpins can establish standing sufficient to maintain
an independent custody action under § 40-4-211(4) (b), MCA. Neither
the District Court in McCone County nor Jeannette has had an
opportunity to address the Kolpins' petition under the parameters
set forth herein. We conclude, however, that the District Court
erred in summarily dismissing the Kolpins' independent petition for
custody.
The Kolpins also appeal the denial of their motion to
intervene in the Dawson County dissolution proceeding, Cause No. DR
89-011. They assert that their right to commence an independent
proceeding for custody gives them a corresponding right to
intervene regarding custody in the dissolution proceeding. This
Court recently clarified the standards regarding motions to
intervene. In In re Marriage of Aniballi (Mont. 1992), 842 P.2d
342, 344, 49 St.Rep. 995, 996, we held that a prima facie showing
must be made to support a claim for intervention under Rule 24(a),
M.R.Civ.P. Thus, a non-parent seeking custody must make a prima
facie showing that the child is not in the physical custody of his
or her parents to intervene in a dissolution proceeding.
We emphasize that the right of intervention premised on an

entitlement to file an independent petition for custody under § 40-

4-211(4) (b), MCA, does not infringe on the district courtfs
discretion regarding all other intervenors, as set forth in 5 40-4-
211(5), MCA:

Notice of a child custody proceeding shall be given to
the child's parent, guardian, custodian, those persons
having physical. custody of the child, and all other
contestants, who may appear, be heard and file a
responsive pleading. The court, upon a showing of good
cause, may permit intervention of other interested
parties.
Rather, the intervention discussed in subsection (5) parallels the
permissive intervention of Rule 24 (b), M.R. Civ. P. For example,
once a child custody proceeding has commenced under § 40-4-211(4),
MCA, the district court may, in its discretion, allow intervention
by interested parties who may not be seeking custody but wish to

appear and be heard. We repeat, however, that if a non-parent
moves to intervene regarding custody in an ongoing dissolution
proceeding and presents a prima facie case demonstrating that the
child is not in the physical custody of his or her parents, a
district court must grant the motion.
Here, the Dawson County District Court issued no findings,
conclusions or memoranda with its order denying the ~olpins'motion
to intervene in the dissolution proceeding. Therefore, we cannot
review the legal basis for the court's denial of the motion to
intervene. For reasons similar to those discussed above, we

conclude that the District Court erred in summarily denying the
Kolpinsf motion to intervene in the Dawson County dissolution
proceeding, Cause No. DR 89-011.
We note here Jeannette's argument that denial of the Kolpins'
motion to intervene is not properly before us. She contends that
the denial of the Kolpins' motion to intervene is not a separately
appealable order under Rule 1, M.R.App.P., and, therefore, it is
not appealable at any time. She argues that the Kolpins were
obligated to seek a writ of supervisory control within thirty days
of the District Court's denial of their motion to intervene. These
arguments verge on the frivolous.
It is true that an order denying a motion to intervene is not
an appealable order under Rule 1, I4.R.App.P. However, the proper
appeal from such an interlocutory order lies after entry of final
judgment. Rule 2(a), M.R.App.P.; Continental Ins. Co. v. Bottomly
(1988), 233 Mont. 277, 280, 760 P.2d 73, 75-6; Estate of Schwenke
v . Becktold (1992), 252 Mont. 127, 130-1, 827 P.2d 808, 810. This
is the avenue taken by the Kolpins here.
Furthermore, although an application for a writ of supervisory
control is sometimes used to seek immediate review of an
interlocutory order, such applications are justified only where
there is no remedy by appeal or other remedial procedure to provide
relief and where extraordinary circumstances are present. State v.
Tollefson (1989), 239 Mont. 305, 306, 780 P.2d 6 621. The
Kolpinsf failure to seek a writ of supervisory control following
the denial of their motion to intervene does not affect their right
of appeal. We conclude that the Kolpins properly appealed the
denial of their motion to intervene after the District Court
entered its findings of fact, conclusions of law and decree of
dissolution

Did the District Court err in imposing Rule 11 sanctions on
the Kolpins in the custody action?
In imposing sanctions against the Kolpins in their independent
custody proceeding, the District Court determined that the Miller
decision was so clear and unambiguous that the Kolpins' petition
for custody could not be said to be warranted by existing law or by
a good faith argument to change the law. We have stated that to
avoid sanctions under Rule 11, M.R. Civ.P., it is not necessary that
a party be correct in his or her interpretation of the law, but
only that the party make a good faith argument within his or her
view of the law. In re Adoption of R.D.T. (1989), 239 Mont. 33,
36, 778 P.2d 416, 418.
The Kolpins based their custody petition on the plain language
of 5 40-4-211, MCA, and we have concluded that 5 40-4-211, MCA,
entitles a non-parent to commence a custody proceeding if the
standing requirement is demonstrated. We conclude, therefore, that
Rule 11 sanctions were not warranted in this situation. See
Sundheim v. Reef Oil Corp. (1991), 247 Mont. 244, 258, 806 P.2d
503, 512.

Did the District Court err in ordering the Kolpins to pay Jeff
Kolpin's share of the children's attorney's fees in the dissolution
action?
Soon after the dissolution proceeding was commenced, the
District Court appointed an attorney to represent the interests of
16
the children and ordered Jeff to pay the children's attorney's
fees. In its findings of fact and conclusions of law, however, the
District Court ordered the Kolpins to pay one-half of those fees;
the reason given was that Jeff had "no intention of doing so." The
Kolpins assert that this rationale did not constitute a legal basis
for ordering them to pay Jeff's obligation. We agree. The Kolpins
have no responsibility to assume the debts of their adult son and
the court cited no authority permitting it to shift this obligation
to the Kolpins.
Jeannette contends that § 40-4-110, MCA, authorizes the
District Court to require the Kolpins to pay Jeff's share of the
children's attorney's fees. Section 40-4-110, MCA, reads:
The court from time to time, after considering the
financial resources of both parties, may order a party to
pay a reasonable amount for the cost to the other party
of maintaining or defending any proceeding under chapters
1 and 4 of this title and for attorney's fees .
. . .
Section 40-4-110, MCA, is not applicable here. This provision
relates to awarded costs and attorney's fees of the other party
under certain circumstances. Jeff's share of the children's
attorney's fees was not incurred by Jeannette as contemplated by
the statute. Therefore, 40-4-110, MCA, simply is not available
as a basis for requiring the Kolpins to pay Jeff's obligation.
We note that the District Court did not rely on the language
of § 40-4-205, MCA, in its findings and conclusions, nor do the
parties argue that 5 40-4-205, MCA, is applicable. Accordingly, we
do not address whether the District Court could have required the
Kolpins to pay for half of the children's attorney's fees pursuant
to § 40-4-205, MCA. We conclude, however, that the District Court
erred in ordering the Kolpins to pay one-half of the children's
attorney's fees in the dissolution action on the basis given.

Did the District Court err in awarding Jeannette Kolpin
attorney9s fees incurred in opposing the Kolpinsf motion for a stay
of execution in the dissolution action?
Following entry of the dissolution decree in Dawson County,
the Kolpins applied for a stay of execution concerning the custody
of Russell and filed their notice of appeal of the findings of
fact, conclusions of law and decree of dissolution. In opposing
the stay motion, Jeannette requested attorney's fees under g 40-4-
110, MCA, or Rule 11 sanctions. The District Court denied the stay

motion, concluding that the reunification of the children was of
primary importance. Because Russell had resided with the Kolpins
for several years, the District Court reasoned that the Kolpins'
request for continuation of the arrangement pending appeal was not
taken in bad faith. However, the court concluded that due to
Jeannette Kolpinfs limited financial resources, it was appropriate
to award her attorney's fees incurred in responding to the motion
for stay of execution.
The Kolpins argue that because the notice of appeal was filed,
the District Court had jurisdiction to consider the stay but did
not have jurisdiction to award attorney's fees. They also contend
that, because the Wittkopps are paying Jeannette's attorney's fees
and the purpose of attorney's fees under 5 40-4-110, MCA, is to
equalize the positions of the parties, an award of attorney's fees
to Jeannette was not warranted.
18
 While the filing of a notice of appeal normally vests
jurisdiction in this Court for all but ancillary matters, the
district court is not completely powerless. Churchhill v. Holly
Sugar Corp. (1981), 192 Mont. 533, 536, 629 P.2d 758, 7 6 0 ; State ex
rel. Kaasa v. District Court (1978), 177 Mont. 547, 549, 582 P.2d
772, 774. In Kaasa, a wife applied for temporary maintenance
pending an appeal of the decree of dissolution. The district court
declined rule the basis that the filing the notice of
appeal divested it of jurisdiction to act in the divorce. Kaasa,
582 P.2d. at 774. We concluded that the district court had
jurisdiction to act on a petition for temporary maintenance filed
after the notice of appeal, relying in part on that portion of the
attorney's fees provision of the UMDA, which read:
The court from time to time after considering the
f i n a n c i a l resources of both p a r t i e s may order a party to
pay a reasonable amount for the cost to the other party
of maintaining or defending any proceeding under this act
and for attorney's fees, including sums for legal
s e r v i c e s rendered and costs i n c u r r e d prior to t h e
commencement of the proceeding or after entry of
judqment. . . . [Emphasis added.]
Section 48-327, RCM (1977 Cum. Supp.) ; Xaasa, 582 P.2d at 774.
Kaasa illustrates the unique character of the district court's
ongoing jurisdiction in dissolution proceedings. Section 40-4-110,
MCA, specifically allows for attorney's fees incurred after entry
of judgment. We conclude that the District Court had jurisdiction
to award attorney's fees pursuant to 5 40-4-110, MCA, in this
situation.
Having cleared the jurisdictional hurdle, the question remains
whether the award of attorney's fees was appropriate. A district
court's award of attorneyr fees under 5 40-4-110, MCA, will not be
s
disturbed absent an abuse of discretion. In re Marriage of Becker
(19901, 244 Mont. 469, 477, 798 P.2d 124, 129. Here, the District
court considered the financial resources of both parties and
concluded that the Kolpins should pay for the attorney's fees
Jeannette incurred in opposing the motion for a stay. Although
Elaine Wittkopp testified that the Wittkopps were paying
Jeannette's attorney's fees, she also testified that Jeannette had
paid some of the fees. Further, we find no evidence of record that
Jeannette is not required to reimburse the Wittkopps for the fees.

- In re Marriage of Thompson
See (1981), 193 Mont. 127, 129-30, 630

P.2d 243, 244. We conclude that the District Court did not abuse
its discretion in awarding Jeannette attorney's fees incurred in
opposing the Kolpins' motion for a stay of execution in the
dissolution action.

To recap the effect of this opinion on the two dockets below,
we conclude that the District Court erred in dissolution proceeding
Cause No, DR 89-011 in summarily denying the Kolpins' motion to
intervene and in ordering the Kolpins to pay half of the children's
attorney's fees because Jeff did not intend to do so; the District
Court did not err in awarding Jeannette attorney's fees in opposing
the Kolpinsl motion to stay execution. We remand Cause No. DR 89-
011 for further proceedings consistent with this opinion,
emphasizing that the findings of fact, conclusions of law and
decree of dissolution, to the extent not discussed herein, are
unaffected by this opinion
In custody action Cause No. DR 92-07, we conclude that the
District Court erred in summarily dismissing the Kolpins' petition
for custody and in imposing Rule 11 sanctions against the Kolpins.
We remand that action only for such further proceedings regarding
the sanctions as may be necessary, noting that the matter of
custody will be determined on remand in Cause No. DR 89-011.
Finally, we note that it appears that neither party has any further
contacts with Dawson County; in this regard, the parties may wish
to stipulate to hold any further hearings which may be necessary in
McCone County.
Affirmed in part, reversed in part, and remanded.

We concur:

for Retired Justice R.C. McDonough
 August 27, 1993

CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:

Rodd A. Hamman & Robin A. Wolff
Calton, Hamman & Wolff
2075 Central Ave.
Billings, MT 59102

Richard A. Simonton and Marvin Howe
Simonton, Howe & Schneider
P.O. Box 1250
Glendive, MT 59330

Richard L. Bums
Attorney at Law
P.O. Box 6
Glendive, MT 59330

ED SMITH
CLERK OF THE SUPREME COURT
S T A P OF MONTANA