No. 13864
IN THE SUPREME COURT OF THE STATE OF MONTAPJA
1978
LINDA ALLEN,
Petitioner and Respondent,
-vs-
CLIFF ALLEN,
Respondent and Appellant.
Appeal from: District Court of the Eiqhteenth Judicial
District,
Honorable W. W. Lessley, Judge presiding.
Counsel of Record:
For Appellant:
Smith and Harper, Helena, Montana
Jack Harper argued, Helena, Montana
For Respondent:
Landoe, Gary and Planalp, Bozeman, Montana
Peter S. Lineberger argued, Bozeman, Tlontana
Submitted: January 13, 1978
Filed: -
FEB 2 2 1976
s&
Clerk
Mr. Justice Frank I. Haswell delivered the Opinion of the
Court.
~indaAllen (wife) petitioned the District Court,
Gallatin County, for dissolution of her marriage to Cliff
~ l l e n(husband). The husband appeals from the decree of the
District Court dissolving the marriage of the parties;
awarding custody of the two minor children of the marriage
to the wife; imposing child support obligations on the
husband; dividing the personal property of the parties; and
ordering both parties to pay their own attorney fees.
The husband raises the following issues on appeal:
(1) Whether the evidence supports the District Court's
judgment awarding custody of the minor children to the wife?
(2) Whether the findings of fact and conclusions of
law support the judgment?
(3) Whether the failure to give to the husband the
county welfare department's investigation report of custodial
arrangements is grounds for vacating the judgment pursuant
to section 48-335 (3), R.C.M. 1947?
On cross-appeal, the wife contends the District Court
erred in failing to award her attorney's fees at the trial
court level, and additionally, she seeks $750.00 attorney
fees for the services of her attorney in this appeal.
In determining the custody and control of minor children
the paramount consideration is the welfare of the minor
children. The trial judge has a superior advantage in re-
solving the difficult problem of child custody since he
hears the testimony and views the demeanor of the witnesses.
The District Court's decision on custody will not be over-
turned on appeal unless there is a clear abuse of discretion.
Lee v. Gebhardt (19771, Mont . , 567 P.2d 466, 34
St.Rep. 810; In re Marriage of Isler (1977), - Mont . I
566 P.2d 55, 34 St.Rep. 545; In re Marriage of Tweeten
(1977), Mont . , 563 P.2d 1141, 34 St.Rep. 337.
The statutory criteria for determining child custody is
found in the Montana Uniform Marriage and Divorce Act,
section 48-332, R.C.M. 1947, which provides:
"Best interest of child. The court shall determine
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 interrelationship 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 indi-
viduals involved."
After receiving testimony and giving careful considera-
tion to the factors contained in section 48-332, the District
Court concluded the best interests of the minor children
warranted awarding the children's custody and control to the
wife. Since the husband has failed to establish by a clear
preponderance of the evidence that the District Court erred
in awarding custody of the minor children to the wife, the
District Court's decision on this matter will not be disturbed.
Brooks v. Brooks (1976), Mont, , 556 P.2d 901, 33
St.Rep. 1114. We have reviewed the District Court's findings
of fact and conclusions of law and find them in harmony with
the District Court's decree awarding custody of the minor
children to wife.
The third issue raised by the husband addresses the
county welfare department's investigation and report con-
cerning the parties custodial arrangements for the minor
children. The husband contends the District Court's judgment
should be vacated because he did not receive a copy of the
report. He contends this denied him an opportunity to
cross-examine persons preparing the report and to offer
testimony rebutting the report.
We recognize the provisions of section 48-335, R.C.M.
1947, as they pertain to the disclosure of an investigator's
report concerning custodial arrangements. Subparagraph (3)
of section 48-335 provides:
" (3) The court shall mail the investigator's report
to counsel and to any party not represented by
counsel at least ten (10) days prior to the hear-
ing. The investigator shall make available to
counsel and to any party not represented by counsel
the investigator's file of underlying data, and
reports, complete texts of diagnostic reports
made to the investigator pursuant to the provisions
of subsection ( 2 ) , and the names and addresses of
all persons whom the investigator has consulted.
Any party to the proceeding may call the investi-
gator and any person whom he has consulted for
cross-examination. A party may not waive his
right of cross-examination prior to the hearing."
The critical distinction in the present case is that
the husband failed to request any investigation and report
until his concluding testimony at the trial. Testimony
concerning custody of the minor children had already been
given. However, the District Court ordered the county
welfare department to perform an investigation and submit
its report to the court. The welfare investigation was
performed and a report on the custodial arrangements of wife
and husband were submitted and filed with the District Court
prior to the District Court's entry of findings of fact,
conclusions of law, and decree.
In light of the husband's untimely request for a custodial
investigation and report and his failure to submit a timely
motion for a continuance in this matter, the husband's
contentions must fail.
The final substantive issue is the wife's contention
the District Court erred in failing to award attorney fees
to her. The matter of attorney fees in an action for dis-
solution of marriage is governed by section 48-327, R.C.M.
1947, which provides:
"Costs--Attorney fees. 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 main-
taining or defending any proceeding under this
act and for attorney's fees, including sums for
legal services rendered and costs incurred prior
to the commencement of the proceeding or after
entry of judgment. The court may order that
the amount be paid directly to the attorney, who
may enforce the order in his name."
This Court has held a showing of necessity is a condition
precedent to an award of attorney fees. Whitman v. Whitman
(19741, 164 Mont. 124, 519 P.2d 966; State ex rel. Sower~rine,
v. District Court (19651, 145 Mont. 375, 401 P.2d 568.
Here, the record discloses the wife presented evidence of
her tenuous financial situation. However, when the wife's
financial condition is compared to the husband's, we cannot
conclude the District Court erred when it ordered both
parties to pay their respective attorney fees at the trial
court level. Where there is substantial evidence to support
the findings of the District Court, such findings will not
be disturbed on appeal. Kartes v. Kartes (19771, Mont .
, 573 P.2d 191, 34 St.Rep. 1576; Luppold v. Lewis (19771,
Mont. , 563 P.2d 538, 34 St.Rep. 227.
Our final consideration is the wife's cross-appeal for
reasonable attorney fees incurred for this appeal. Section
93-8606, R.C.M. 1947, and Rule 33, M.R.App.Civ.P., provide
the successful party shall recover from the other party his
costs on appeal. However, attorney fees are not included as
costs. State ex rel. Sowerwine v. District Court (1965),
145 Mont. 375, 401 P.2d 568. We find the wife here is not
entitled to attorney fees on appeal on the record before us.
The judgment of the District Court is affirmed.
z-4
Justice$ 0 - &-
@&
We Concur:
Mr. Acting Chief Justice John Conway Harrison concurring:
I concur except for the failure of the majority to award
attorney fees. I would award attorney fees to the respondent
wife.