No. 01-705
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 175
IN RE THE MARRIAGE OF
MARGARET ALVARADO FISHBAUGH,
Petitioner and Respondent,
and
JOHN FISHBAUGH,
Respondent and Appellant.
APPEAL FROM: District Court of the Fifteenth Judicial District,
In and for the County of Sheridan,
The Honorable David Cybulski, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
E. June Lord, Attorney at Law, Great Falls, Montana
For Respondent:
Laura Christoffersen; Christoffersen & Knierim, Culbertson, Montana
Submitted on Briefs: April 11, 2002
Decided: August 8, 2002
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 John Fishbaugh (John) appeals from the judgment entered by the
Fifteenth Judicial District Court, Sheridan County, on its findings
of fact, conclusions of law and decree of dissolution. We affirm.
¶2 John raises the following issues:
¶3 1. Did the District Court err in denying John’s motion to
continue the trial?
¶4 2. Did the District Court abuse its discretion in awarding
Margaret Alvarado Fishbaugh (Margaret) sole custody of the parties’
daughter?
¶5 3. Did the District Court abuse its discretion in calculating
child support?
¶6 4. Did the District Court abuse its discretion in ordering
John to pay Margaret’s attorney fees?
BACKGROUND
¶7 John and Margaret were married on November 16, 1999, and
separated approximately five months later. Margaret gave birth to
the parties’ daughter on August 31, 2000. In October of 2000,
Margaret petitioned the District Court to dissolve the marriage and
determine the custody and support of the child. The court
subsequently entered an order giving Margaret temporary custody of
the child and requiring John to pay $294 per month in child support
pending a trial on the merits. Trial was set for June 18, 2001,
continued twice and, on July 2, 2001, eventually scheduled for
August 20, 2001.
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¶8 On August 16, 2001, John’s attorney filed motions to withdraw
as counsel and to continue the trial. The continuance was
requested on the basis that the attorney had a trial scheduled in
federal court on the same date as the trial in this case. The
District Court entered a written order denying the motion for a
continuance and stating that John’s attorney could be heard on the
motion to withdraw at the time set for trial.
¶9 The trial was held as scheduled on August 20, 2001. Neither
John nor his attorney appeared. Margaret testified and the
District Court subsequently entered its findings of fact,
conclusions of law and decree of dissolution granting Margaret sole
custody of the parties’ child and ordering John to pay $294 per
month in child support. It also ordered him to pay Margaret’s
attorney fees in the amount of $1,000. The court entered judgment
and John appeals.
DISCUSSION
¶10 1. Did the District Court err in denying John’s motion to
continue the trial?
¶11 The decision to grant or deny a motion for a continuance is
within the sound discretion of a district court and we review that
decision for abuse of discretion. The moving party must make an
affirmative showing that he or she has suffered prejudice as a
result of the court’s denial of the motion for a continuance. In
re Marriage of Pospisil, 2000 MT 132, ¶ 18, 299 Mont. 527, ¶ 18, 1
P.3d 364, ¶ 18. The timeliness of a motion to continue is a
legitimate factor for the court to consider in determining whether
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to grant such a motion. In re Marriage of Robbins (1985), 219
Mont. 130, 138, 711 P.2d 1347, 1352.
¶12 The trial in this matter was set for August 20, 2001, and
John’s attorney moved for a continuance on August 16, 2001, just
four days prior to trial. Margaret objected to the continuance and
the District Court denied the motion in a written order. At the
trial, the court attempted to telephone John’s attorney and could
not reach her. The court then again denied the motion to continue,
stating on the record that it considered the motion untimely as it
was unlikely John’s attorney did not have advance notice of the
scheduling of her federal court trial. Moreover, the court
observed the attorney had indicated John had not contacted her for
several weeks and, as a result, the attorney “would be here
probably with nothing more than her hat in hand and it wouldn’t
make for much more of a trial and much more benefit to her client,
anyway.”
¶13 John argues that the District Court abused its discretion in
denying his counsel’s motion to continue the trial and that he was
prejudiced thereby because he was unable to present evidence and
cross-examine Margaret at the trial. The District Court based its
denial of the motion on the fact that it was filed only four days
prior to trial and the court found it unlikely that John and his
attorney were unaware of the attorney’s scheduling conflict prior
to that time.
¶14 John contends his attorney did not know until several days
prior to the trial in this matter that her federal court trial
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actually would go on as scheduled. His attorney’s motion makes no
reference to this fact, however, and nothing else of record
supports his contention in this regard. Nor does he dispute the
District Court’s statement that his attorney was aware, and could
have informed the court, of the potential conflict at an earlier
date. Moreover, regarding the prejudice factor, John presents
nothing more than conclusory statements that he was prejudiced by
the denial of the motion because the District Court relied on a
one-sided view of the facts. We conclude that John has failed to
establish the District Court abused its discretion in denying his
motion to continue the trial and that he was prejudiced thereby.
¶15 John also argues that the District Court’s denial of his
motion for continuance violated his constitutional right to due
process. The essential elements of due process are notice and the
opportunity to be heard. Marriage of Robbins, 219 Mont. at 138,
711 P.2d at 1352. Due process is accorded where a party is given
sufficient notice of a trial and the trial is held, regardless of
whether the party actually avails himself of the opportunity to be
heard. Marriage of Robbins, 219 Mont. at 138, 711 P.2d at 1352.
Here, John received notice of the trial nearly two months in
advance and the trial was held as scheduled. The District Court
having accorded John the requisite notice and opportunity to be
heard to which he was entitled, we conclude his right to due
process was not violated.
¶16 We hold that the District Court did not err in denying John’s
motion to continue the trial.
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¶17 2. Did the District Court abuse its discretion in awarding
Margaret sole custody of the parties’ daughter?
¶18 The District Court granted Margaret sole custody of the
parties’ daughter and gave John the right to reasonable visitation
at the child’s home. John contends the court should have granted
joint custody of the child and provided him with less restricted
visitation rights.
¶19 We review a district court’s child custody determination to
determine whether the findings of fact on which the determination
is made are clearly erroneous. In re Marriage of McKenna, 2000 MT
58, ¶ 14, 299 Mont. 13, ¶ 14, 996 P.2d 386, ¶ 14. If they are not,
we will affirm the court’s decision absent a showing that the court
committed a clear abuse of discretion. Marriage of McKenna, ¶ 14.
¶20 A district court is required to determine child custody
matters in accordance with the best interests of the child, taking
into consideration a variety of statutory factors including--but
not limited to--the parents’ wishes, the interaction and
interrelationship of the child with the child’s parents, continuity
and stability of care, and whether the child has frequent and
continuing contact with both parents. Section 40-4-212(1), MCA.
While a court must consider the factors enumerated in § 40-4-
212(1), MCA, it need not make specific findings relating to each.
Marriage of McKenna, ¶ 15.
¶21 Here, the District Court found that Margaret has had custody
of the child since she was born, and John has not contacted, or
attempted to visit, her. The court further found that, in light of
the lack of contact between John and the child, it is in the
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child’s best interest that Margaret be awarded sole custody subject
only to reasonable visitation by John at the child’s home. The
record reflects Margaret’s testimony at trial that, although John
was present at their child’s birth, he has had no contact with her
since that time. She further testified that she had made several
telephone calls to John to inform him of their child’s well-being,
but John has never initiated contact to find out about or visit
with the child. Consequently, although Margaret believed John
should have visitation, she thought the visitation should be in her
home until the child has an opportunity to become comfortable
around John. Margaret’s testimony constitutes substantial credible
evidence supporting the District Court’s findings in this regard.
¶22 John’s argument that the District Court’s findings are
erroneous is based on his assertions that, had he been able to
appear at trial, he would have testified that the only reason he
had no contact with the child was because Margaret continually
frustrated his attempts to do so, and that her testimony regarding
his lack of efforts to contact the child was untrue. The problem
with John’s argument is that our review of the District Court’s
findings of fact must be based on the evidence of record and we
cannot consider evidence which is extraneous to the record. See
Scott v. Scott (1990), 246 Mont. 10, 21, 803 P.2d 620, 627. Based
on the evidence before us, we conclude the court’s findings of fact
regarding custody of the child are not clearly erroneous.
¶23 Moreover, although the District Court did not cite § 40-4-
212(1), MCA, in its decree, its findings of fact indicate that the
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court did consider the factors set forth in the statute, most
notably those pertaining to the wishes of the parents, the
continuity and stability of the child’s care, and whether the child
has frequent and continuing contact with both parents. Based on
the evidence of record, we hold the District Court did not abuse
its discretion in awarding Margaret sole custody of the parties’
daughter.
¶24 3. Did the District Court abuse its discretion in calculating
child support?
¶25 We review a district court’s child support award to determine
whether the court abused its discretion. In re Marriage of Bee,
2002 MT 49, ¶ 19, 309 Mont. 34, ¶ 19, 43 P.3d 903, ¶ 19. Here, the
District Court determined that John should pay $294 per month in
child support based on an imputed income in the amount of $24,835.
John contends that the court abused its discretion in basing the
child support award on imputed income.
¶26 At the hearing on temporary child custody and support, John’s
attorney appeared via telephone and apparently informed the
District Court that John’s financial records were unavailable at
that time. As a result, the court determined temporary child
support by imputing income to John based on his job as a semi-truck
driver. Relying on Margaret’s testimony that she earned
approximately $10,700 per year and John’s imputed income in the
amount of $24,835, the court calculated John should pay $294 per
month in temporary child support.
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¶27 At the trial on the merits, Margaret testified that, to her
knowledge, there had been no change in either parties’ employment
status since the earlier hearing and that the child support
computations made at that time would still be accurate. As stated
above, neither John nor his attorney appeared at the trial to offer
evidence contradicting Margaret’s testimony or otherwise
establishing John’s financial status; nor did John file any
financial affidavits or tax returns establishing that his income
was other than the amount originally imputed to him by the court.
Consequently, the District Court again calculated John’s child
support obligation as $294 per month based on his imputed income as
a truck driver.
¶28 John argues that the District Court abused its discretion in
using imputed income to determine his child support obligation
because he had furnished Margaret with a financial affidavit and
tax return establishing that his income was approximately $10,000
per year and Margaret had failed to reveal his financial
information to the court at the trial. As stated above, however,
our review of the District Court’s determination must be based on
the evidence of record before the court. See Scott, 246 Mont. at
21, 803 P.2d at 627. There is no evidence of record establishing
that John’s income is other than the amount imputed or that he
provided Margaret with his financial information. Consequently, we
hold that the District Court did not abuse its discretion in
calculating child support.
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¶29 4. Did the District Court abuse its discretion in ordering
John to pay Margaret’s attorney fees?
¶30 At trial, Margaret requested that John pay her attorney fees
incurred as a result of the dissolution proceeding and the court
ordered John to do so in the amount of $1,000. John argues that no
evidence exists to support either the necessity for, or amount of,
such an award. He also contends he does not have the financial
resources to pay the fees. We review a district court’s award of
attorney fees in a dissolution proceeding to determine whether the
court abused its discretion. Schmieding v. Schmieding, 2000 MT
237, ¶ 22, 301 Mont. 336, ¶ 22, 9 P.3d 52, ¶ 22.
¶31 A district court may order a party to pay the other party’s
reasonable attorney fees incurred in maintaining and defending a
dissolution proceeding after considering the financial resources of
both parties. Section 40-4-110(1), MCA. An award of attorney fees
must be necessary, reasonable and based on competent evidence.
Schmieding, ¶ 25.
¶32 At the temporary child support hearing, the District Court
computed child support based on Margaret’s testimony that she
earned approximately $10,000 per year and John’s imputed income as
a semi-truck driver in the amount of $24,835. Margaret testified
at the trial that she believed there had been no change in either
her or John’s employment or income status since the earlier
hearing. Additionally, Margaret’s attorney informed the court at
the trial that her normal fee in a dissolution proceeding was $100
per hour and she had worked at least ten hours on this case. We
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conclude that this testimony constitutes substantial credible
evidence establishing both the necessity for, and reasonable amount
of, an award of attorney fees. Moreover, in light of the disparity
between Margaret’s annual income and the income imputed to John as
a truck driver, we further conclude that it was reasonable for the
District Court to conclude that John could pay Margaret’s attorney
fees. As a result, we hold that the District Court did not abuse
its discretion in ordering John to pay Margaret’s attorney fees.
¶33 Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ TERRY N. TRIEWEILER
/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ JIM RICE
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