No. 80-393
I N THE SUPREME COURT O THE STATE OF M N A A
F O T N
1981
I N RE THE MARRIAGE OF
LINDA MARIE THOMPSON,
P e t i t i o n e r and Respondent,
-vs-
KENNETH NEAL THOMPSON,
Respondent and A p p e l l a n t .
Appeal from: D i s t r i c t Court of t h e Eighth J u d i c i a l D i s t r i c t ,
I n a n d f o r t h e County o f C a s c a d e , The I I o n o r a b l e ,
J o e l G. R o t h , J u d g e p r e s i d i n g .
Counsel o f Record:
For Appellant:
S m i t h & H a r p e r , ~ e l e n a , 'Montana
For Respondent :
A r t T a d e w a l d t , Montana L e g a l S e r v i c e s , G r e a t F a l l s ,
Montana
-
- -
Submitted on B r i e f s : A p r i l 1 5 , 1981
Decided: July 2, 1981
Filed : JUL 2 - 1981
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Kenneth Neal Thompson appeals from the order of the
District Court of the Eighth Judicial District, in and for
the County of Cascade, awarding child custody, setting child
support payments and disposing of personal property. We
affirm.
Kenneth Neal Thompson and Linda Marie Thompson were
married on Nay 31, 1974. They lived for a time on Kenneth's
parents' ranch near Wolf Creek, Montana. A son, Kenneth
Edward Thompson, was born on August 5, 1976. The family
moved to Oklahoma shortly after the child was born. The
father returned to Montana in May 1978. Linda and the child
did not return until May 1979. Dissolution proceedings were
initiated by Linda in July 1979. The marriage was dissolved
on August 5, 1980. On August 26, 1988, the District Court
made its findings of fact, conclusions of law and decree
concerning child custody, child support and disposition of
property. Linda was awarded custody of the son, subject to
the father's reasonable rights of visitation. Kenneth was
ordered to pay child support in the amount of $200 per
month. Linda was awarded the following property: a washer
and dryer, an antique table, a 1971 Dodge Charger or its
value, the clothing and personal effects belonging to her
and the child, and the baby furniture.
On appeal, Kenneth argues that the ~istrictCourt
abused its discretion in awarding custody of the child to
Linda, in setting child support at $200 per month and in
disposing of the property as noted above. In essence, all
of the issues raised attack the sufficiency of the evidence
to support the District Court's findings and conclusions.
We will not now set out the evidence presented below. We
have reviewed the record, and hold that the evidence supports
the conclusion that the award of custody of the son to Linda
is in the best interests of the child. Kenneth has failed
to show that there was a clear abuse of discretion by the
District Court, has not overcome the presumption that the
judgment of the District Court was correct, and has not
demonstrated that there is a clear preponderance of evidence
against the findings. Jensen v. Jensen (1979), - .-
Mont 1
597 P.2d 733, 734, 36 St.Rep. 1259, 1261. We also hold that
the District Court did not abuse its discretion in the award
of support or in the disposition of property. The record
does not disclose an arbitrary exercise of discretion
without the employment of conscientious judgment. Jerome
v Jerome (1978), 175 Mont. 429, 574 P.2d 997.
.
Although Linda did not cross-appeal, she raises one
issue under Rule 14, M.R.App.Civ.P. Did the District Court
err in refusing to order Kenneth to pay Linda's attorney's
fees, pursuant to section 40-4-110, MCA, because Linda was
represented by Montana Legal Services Association?
Linda relies primarily on federal civil rights cases to
support her assertion that representation by Legal Services
should not bar an award of fees. However, in the cases
cited in her brief, the awards were based either on the
Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. 5
1988, or on a private attorney general theory. The only
dissolution case cited, Ferrigno v. Ferrigno (1971), 115
N.J. Super. 283, 279 A.2d 141, is from a jurisdiction which
has not adopted the Uniform Marriage and Divorce Act. A
showing of necessity is a condition precedent to the exercise
of the court's discretion to grant attorney's fees under the
Uniform Marriage and Divorce Act, section 40-4-110, MCA.
In re Marriage of Brown (1978), - , .
Mont - 587 P.2d 361,
367, 35 St.Rep. 1733, 1740. A party who has applied for and
received the assistance of Legal Services in a dissolution
action has thereby removed any personal necessity to seek
the payment of fees from the former spouse. It has been
held in Colorado, a state which has adopted the Uniform
Act, that the statutory provision for assessment of attorney's
fees was intended to equalize the status of the parties to
the dissolution proceeding. In re Marriage of Franks (1975),
189 Colo. 499, 542 P.2d 845, 851. In interpreting the
attorney's fees provision of the Uniform Marriage and Divorce
Act as adopted in Kentucky, the Supreme Court of that state
said that "[ilt is readily apparent that the authority of
the court to order the payment of an attorney's fee in a
divorce action does not exist for the protection of the
attorney, but is strictly for the benefit of the client.'
Sullivan v. Levin (Ky. 1977), 555 S.W.2d 261, 263. Linda
could show no necessity for an award of attorney's fees.
The District Court did not err in refusing to grant fees to
her.
The order of the District Court is affirmed.
We Concur: