NO. 96-039
IN THE SUPREMECOURT OF THE STATE OF MONTANA
1996
IN RE THE MARRIAGE OF
SHIRLEY A. HERBST,
Petitioner and Respondent,
and
RANDALL L. HERBST,
Respondent and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Larry W. Moran, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Marcelle C. Quist; Quist & Bowen, Bozeman,
Montana
For Respondent:
Daniel J. Roth; Kommers & Roth, Bozeman,
Montana
Submitted on Briefs: September 12, 1996
Decided: September 19, 1996
Filed:
Cl&k
Justice Karla M. Gray delivered the Opinion of the Court.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1995 Internal Operating Rules, the following decision shall not be
cited as precedent and shall be published by its filing as a public
document with the Clerk of the Supreme Court and by a report of its
result to Montana Law Week, State Reporter and West Publishing
Company.
Randall L. Herbst (Randy) appeals from the judgment entered by
the Eighteenth Judicial District Court, Gallatin County, denying
his motion for modification of custody and awarding costs and
attorney fees. We affirm.
We address the following issues on appeal:
1. Did the District Court abuse its discretion in awarding
witness costs?
2. Did the District Court abuse its discretion in awarding
attorney fees?
3. Did the District Court abuse its discretion in denying
Randy's motion for modification?
The marriage of Randy and Shirley Herbst was dissolved in
1989. The Amended Decree provided for joint custody of the
parties' three minor sons; Shirley was designated as the boys'
primary physical custodian, subject to visitation rights in Randy.
Both Randy and Shirley subsequently remarried.
In the summer of 1994, the parties' son Casey, then age 14,
lived with Randy and his wife Celeste pursuant to the previously
ordered visitation. At the end of the summer, Casey asked to stay
with Randy and Celeste on a permanent basis. Randy did not return
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Casey to Shirley at that time; instead, he filed a motion pursuant
to § 40-4-219(l) (c) and cd), MCA, to modify Casey's custody by
changing primary physical custody to Randy. Shirley responded, and
also filed motions requesting orders directing Randy to return
Casey to her custody and holding Randy in contempt.
The District Court ordered Randy to return Casey to Shirley's
custody and set a hearing on Shirley's motion for contempt. Casey
did not return to Shirley's home; he "ran away" to the home of
Leroy Arneson, Randy's neighbor, who employed Casey to perform
chores during the summer months and after school. After a hearing,
the District Court found Randy in contempt of its Amended Decree.
The court subsequently ordered that Shirley's custody of Casey
continue, with visitation in Randy, pending resolution of Randy's
motion to modify custody. It also ordered a custody evaluation and
recommendation by counselor Suzie Saltiel, who previously had
interviewed Casey at Randy's behest regarding Casey's reasons for
wanting to remain in Randy's custody. The parties later agreed
that Zan Hoxsey would perform the custody evaluation on a shared
cost basis.
Both Randy and Shirley testified at the hearing on Randy's
motion for modification of custody, as did Randy's wife Celeste and
Leroy Arneson. Ms. Saltiel and Ms. Hoxsey also testified.
Thereafter, the District Court filed its findings of fact,
conclusions of law and order denying Randy's motion to modify,
setting forth a revised visitation schedule, and awarding Shirley
costs and attorney fees. After a subsequent hearing, the court
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awarded Shirley $2,494.29 as reasonable attorney fees and costs.
Randy appeals.
1. Did the District Court abuse its discretion in awarding
Shirley certain witness costs?
Randy does not dispute that the parties generally agreed to
share the costs associated with Ms. Hoxsey's evaluation and report.
He contends, however, that the District Court erred in awarding
Shirley $70 witness costs for Ms. Hoxsey to appear and testify at
the hearing on his motion to modify. He points out that Ms. Hoxsey
was subpoenaed by Shirley and argues that costs awarded under § 40-
4-110, MCA, are constrained by § 25-10-201, MCA. According to
Randy, § 25-10-201, MCA, and Goodover v. Lindey's Inc. (1992), 255
Mont. 430, 843 P.2d 765, limit expert witness fees awardable as
costs to the statutory rate of $10.00 per day.
We need not address the merits of this issue. As stated
above, the parties generally agreed to share the costs associated
with Ms. Hoxsey's custody evaluations and report. Ms. Hoxsey
testified that she understood her involvement to include performing
the custody evaluations, offering opinions and observations and
providing testimony at the hearing on those matters. Randy's
counsel did not cross-examine her in the latter regard and Randy
did not testify to the contrary at either the hearing on his motion
to modify or the subsequent hearing on costs and attorney fees.
Section 40-4-110, MCA, authorizes a court, in its discretion,
to "order a party to pay a reasonable amount for the cost to the
other party of . . defending [al proceeding" such as Randy's
motion to modify. Given the record before us with regard to each
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party's responsibility for one-half of Ms. Hoxsey's costs, we
conclude that the District Court did not abuse its discretion in
awarding the $70 in witness fees.
2. Did the District Court abuse its discretion in awarding
attorney fees?
Randy does not contend that the amount of the attorney fees
the District Court ultimately awarded in this case was unreasonable
or unsupported. Rather, he argues that the court did not
sufficiently consider the financial resources of both parties, as
required by § 40-4-110, MCA, prior to exercising its discretion to
award attorney fees to Shirley under that statute. We disagree.
As part of her response to Randy's motion, Shirley
specifically requested an award of attorney fees. She testified at
the hearing on the motion that she works regular hours at a grocery
store from Monday through Friday and occasionally works weekend
fill-in shifts. Shirley also testified that she did not have the
financial ability to obtain counseling she had sought. According
to Shirley, it was a financial hardship for her to attend the
hearing and she was unable to continue to take time off work and
pay counsel. She stated that she had to borrow the money to defend
the action and mentioned that her husband had been sick and that
there were related medical bills.
Notwithstanding his knowledge that Shirley was seeking
attorney fees, Randy did not cross-examine her in an effort to
undermine her testimony regarding her lack of financial resources.
Nor did he present testimony through himself or his wife Celeste
which would indicate that his financial situation was precarious.
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The record does not reflect that he was prevented from doing so by
any action of the District Court. The testimony from which the
court could obtain a perspective about Randy's financial resources
included his testimony that he worked construction and had the
"winters off," that Celeste owned her own barbershop and that Randy
and Celeste were in the process of purchasing a plot of land.
It is against this backdrop and this record that Randy argues
that the District Court did not consider the parties' respective
financial resources, as required by 5 40-4-110, MCA, prior to
awarding attorney fees to Shirley. While the relevant evidence
before the court with regard to either party's financial situation
was not overly substantial, and while the District Court
mischaracterized some of that evidence in minor ways, it is clear
that the court did consider the evidence of record prior to
exercising its discretion.
Randy relies primarily on In re Marriage of Rager (1994), 263
Mont. 361, 868 P.2d 625, in arguing that the record in this case
contains insufficient evidence of the parties' financial resources
to support an award of attorney fees. His reliance on Marriase of
Raqer is misplaced. In addressing whether the district court
abused its discretion in awarding attorney fees under § 40-4-110,
MCA, we observed that the district court found that the husband's
earning capacity exceeded his wife's by $5,000; on that basis, we
determined that the court "considered the financial resources of
the parties" before awarding attorney fees to the wife. Marriase
of Raqer, 868 P.2d at 628. We did not hold--or even suggest--that
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respective earning capacity or any other specific financial data
was a required item of evidence without which no attorney fee award
could be made.
On the basis of the record before us, we conclude that the
District Court did not abuse its discretion in awarding Shirley
attorney fees.
3. Did the District Court abuse its discretion in denying
Randy's motion for modification?
Randy properly premised his motion for modification of Casey's
primary physical custody on 5 40-4-219, MCA. In re Marriage of
Johnson (1994), 266 Mont. 158, 879 P.2d 689. The law is clear that
a district court originally determines custody under the "best
interest" standard; however, the court can modify joint custody so
as to substantially change the child's primary residential living
arrangements only if it finds the existence of the "change of
circumstance" requirement of 5 40-4-219(l), MCA, and one of the
subsection (1) (a) through (f) factors contained in that statute.
See Marriaqe of Johnson, 879 P.2d at 694.
On appeal, Randy argues that the District Court erred in
denying his motion. The sole bases he advances for his argument
are that Casey's desires, together with Ms. Saltiel's opinion that
those desires had valid underpinnings, constitute overwhelming
evidence that modification of custody was in Casey's best interest.
It is true that Casey's stated desire to live with Randy meets
the requirement of fi 40-4-219(1)(d), MCA, regarding the desires of
a child 14 years of age or older. However, Randy ignores the
"change of circumstances" requirement and points to no evidence of
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record under which the District Court could properly make such a
finding in this case, much less be mandated to do so as a matter of
law. Indeed, his briefs do not contain a single reference to § 40-
4-219, MCA. We observe, in this regard, that Randy contended in
the District Court that Casey's age constituted a sufficient change
in circumstance as a matter of law. He cited to no authority for
this proposition and cites to none here.
The 5 40-4-219, MCA, findings are jurisdictional prerequisites
to a modification of custody which substantially changes a child's
residential living arrangements. Marriase of Johnson, 879 P.2d at
694. When those prerequisites have not been met, the "best
interest" standard does not arise.
Moreover, Randy has not established any error in the District
Court's determination that Casey's best interests were served by
remaining in Shirley's primary physical custody. Neither Ms.
Saltiel nor Ms. Hoxsey affirmatively recommended a change in
custody. Ms. Hoxsey opined that Casey's desires, on a stand-alone
basis, were an insufficient reason to modify custody. In addition,
both Shirley and Ms. Hoxsey described conflicts regarding Randy's
failure to cooperate in following visitation rules established by
the court.
Randy relies primarily on Casey's wishes to live with him.
However, neither the § 40-4-219, MCA, criteria nor the best
interest standard contemplates a district court being bound by the
stated desires of a 14-year-old child regarding his best interests.
See §§ 40-4-219 and 40-4-212, MCA. Indeed, the discretionary
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nature of a district court's grant or denial of a § 40-4-219, MCA,
motion to modify custody is clear in the statutory language stating
that the court "may in its discretion" modify a prior custody
decree in the event it makes certain findings.
We conclude that the District Court did not abuse its
discretion in denying Randy's motion for modification of custody.
Affirmed.
We concur: