No. 80-23 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

IN RE THE MARRIAGE OF PEGGY 

JO SHERRARD BIER, 

(also a Respondent) 

Petitioner and Appellant, 

LESLIE D. SHERRARD, 

(also an Appellant) 

Respondent. 

Appeal from: District Court of the Eighth Judicial District, 

In and for the County of Cascade. 

Honorable R. D. McPhillips, Judge presiding. 

Counsel of Record: 

For Appellant: 

Robert J. Emrnons argued, Great Falls, Montana 

For Respondent: 

James, Gray and McCafferty, Great Falls, Montana 

Robert F. James argued, Great Falls, Montana 

Submitted: January 15, 1981 

Decided : FE B 5 1981 

Filed: yF i; jsgf7 

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Chief Justice Frank I. Haswell delivered the Opinion of the f?8;rt. 

Peggy Sherrard Bier appeals from an order of the 

District Court granting custody of their children to Leslie 

Sherrard . Leslie Sherrard cross-appeals from an order awarding 

attorney fees and costs for appeal to appellant. 

Peggy and Leslie Sherrard married in 1972, and two children were born of the marriage. On January 4, 1978, the District 

Court entered a decree of dissolution, awarding temporary custody 

of the children to Peggy, with a final custody determination to 

be made af ter a psychological evaluation of both parents and the 

oldest child. Thirteen months later, Leslie Sherrard sought permanent custody. A hearing was held in May 1979, and custody was 

awarded to Leslie. Peggy Sherrard Bier appealed. On motion of 

appellant, the district judge ordered respondent to pay $2,500 

for attorney fees and costs on appeal. 

There are three issues before this Court on appeal: 

(1) Did the district judge err in awarding custody of the 

children to the father? 

(2) Did the district judge err in awarding to appellant 

costs and attorney fees for the purpose of bringing this appeal? 

(3) Does the appeal of this custody order constitute a 

frivolous appeal under Rule 32, M.R.App.Civ. P.? 

In order to prevail, Peggy Sherrard Bier must show an 

abuse of discretion by the judge, must demonstrate that there is 

a clear preponderance of evidence against the findings, and must 

overcome the presumption that the judgment of the trial court is 

correct. In re The Marriage of Jensen (1979), Mont . , 597 

P.2d 733, 734, 36 St.Rep. 1259, 1261. In reviewing the District 

reviewing the District Court's custody order, this Court need 

only look to the record to see if the factors set forth in section 40-4-212, MCA, were considered, and then must determine 

whether the trial court made appropriate findings with respect to 

these criteria. Markegard v. Markegard (1980 ) , Mont . , 616 
Custody must be determined in accordance with the best 

interests of the child, with the court considering 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 

individuals involved. " Section 40-4-212, MCA. 

Both parents desired custody of the children, but there 

were problems inherent in either parent's having custody. The 

relevant evidence indicates that Peggy was a good wife and mother 

until the time of her separation from Leslie. A month before the 

separation, Richard Bier, Peggy's brother-in-law, negligently 

shot and killed Peggy's sister. Peggy became emotionally upset 

at that time and shortly thereafter, she and Leslie separated. 

Leslie moved out of their trailer house but moved back in when 

Peggy and the children moved in with Richard Bier and his three 

children. Apparently Leslie at least acquiesced to her living 

with Bier, even helping her move. After the first move, Peggy 

moved back and forth constantly, bringing the children with her; 

the record shows some ten trips between the two homes during an 

18-month period. 

The testimony indicates that Peggy's moves back in with 

Leslie resulted from her anger at Bier, or from her distress at 

caring for five children. Bier and Peggy fought frequently and 

he beat her up, causing her to go to the county attorney. Bier 

developed a drinking problem a£ ter his homicide conviction. The 

evidence also indicates that the Bier children and the Sherrard 
children did not get along very well. 

After the marriage, Peggy remained in the home with Bier 

and their relationship apparently stabilized. Testimony from 

witnesses who visited the home af ter Bier began serving his sentence at Deer Lodge (shortly after the marriage) indicates that 

the children were well-cared for and that the house was clean. 

Peggy and the five children were living on welfare. 

The testimony of the respondent shows that the children 

have a good relationship with their father and that he can provide a stable home for the children, despite the fact that he is 

a deaf mute. The children have spent a great deal of time with 

their paternal grandparents and apparently have a good relationship with them. Respondent earns a good income, is employed 

as a mechanic, and has a trailer in which he and the children can 

reside. The paternal grandparents testified to their willingness 

to assist respondent in raising the children. 

The findings of the District Court indicate that appellant 

is - not an unfit mother. However, the judge did find that the 

interests of the children would be best served by placing the 

children with their father. His findings indicate that the 

children had a better interaction with their father, and that 

because the respondent appeared to be a more stable person, the 

environment at his home would be more suitable for the children. 

He found that despite Peggy's adequate care of the children and 

their obvious love for her, that the addition of Richard Bier 

into the environment caused an intolerable unsettling of the 

situation. 

Appellant contends that because the judge found her to be 

a fit mother, she is the proper custodian for the children. 

In making such an argument, appellant is asking this Court to 

ignore the dictates of the legislature in passing section 

40-4-212, MCA. That section demands that the District Court 

determine custody in accordance with the best interests of the 
child. Fitness of a parent is only one factor to be considered. 

See section 40-4-212, MCA. 

Appellant also claims error in the failure of the judge to 

make a finding that the mother is the preferred parent of a minor 

child. Although this "tender years presumption" has been considered by district judges in the past, the presumption was never 

considered conclusive; each case was considered on its own facts. 

See In re Marriage of Tweeten (1977), 172 Mont. 404, 409, 563 

P.2d 1141, 1144. Additionally, this Court recently ruled in In 

re the Marriage of Markegard, supra, Mont. at , 616 P.2d 

at 325, 37 St.Rep. at 1541, that the "tender years presumptiont1 

should no longer be considered at all in this state in light of 

the enactment of the Uniform Marriage and Divorce Act. We 

overruled Tweeten in the Markegard case in so far as Tweeten supported the "tender years presumption." The district judge here 

was correct in not making a finding as to the preference for the 

mother. 

The older Sherrard child, Jason, aged 5, was asked by the 

judge about his preference in custody. He responded, "I want 

to live with my mommie." The 2% year old child was not 

interviewed. Appellant contends that this is another example 

showing that the judge abused his discretion in not awarding 

custody to Peggy. We disagree. 

Montana law does not require the district judge to award 

custody based on a child's preference. Again, this is merely one 

factor to be considered. Section 40-4-212, MCA. See also In re 

Marriage of Kramer (1978), 177 Mont. 61, 580 P.2d 439, 444, 35 

St.Rep. 700, 706. The amended findings of fact No. 6 sets out 

Jason's preference to be with his mother, and later findings 

express the judge's reasons for disregarding that preference. 

The district judge clearly followed the dictates of Montana law 

in considering the wishes of the children. Kramer, supra; 

see also Tweeten, supra, 172 Mont. at 408, 563 P.2d at 1143. 
Appellant also asks this Court to find an abuse of discretion in the judge's failure to order psychological tests for 

Peggy and Jason and requiring respondent to pay for them. The 

decree entered in January 1978, left the permanent custody decision pending until Leslie, Jason, and Peggy received evaluations. 

At the hearing in May 1979, results of Leslie's tests were 

admitted into evidence, but Peggy and Jason had not had tests 

done because Peggy said that she could not af ford it. The judge 

made his custody decision without ordering the tests to be done. 

Section 40-4-214 (2), MCA, provides : 

"(2) The court may seek the advice of professional personnel, whether or not employed by 

the court on a regular basis. The advice given 

shal e in wri in and made ava'lable bx the courh & counsef u3on request. Eounsel ay examine as a witness any professional personnel 

consulted by the court." 

In Schiele v. Sager (1977), 174 Mont. 533, 538-39, 571 

P.2d 1142, 1146, we discussed this statute, noting that it dictates an exercise of discretion by the district judge in determining whether findings of professional personnel are necessary 

to resolving custody disputes. Here, the judge's findings indicate that he did not find it necessary to order the tests in May 

1979, and appellant has not demonstrated that such a determination constituted an abuse of discretion. In addition, a 

review of the transcript indicates an abundance of sufficient 

credible evidence on which the judge could base his custody 

decision without relying on professional testimony. 

Finally, appellant argues that the judge abused his 

discretion in considering evidence concerning Peggy's threatened 

suicide attempts. Finding of fact No. 26 provides: 

"Evidence was introduced indicating that 

Petitioner threatened to commit suicide on two 

separate occasions. " 

Appellant argues that there was insufficient evidence to 

support that finding. The record shows con£ licting evidence 

on this point, from which the judge as the trier of fact is 
entitled to draw his own conclusions. Jensen, supra, Mont. 

at , 597 P.2d at 735, 36 St.Rep. at 1262. 

Based on the foregoing, we find no abuse of discretion by 

the district judge. The judge in this case made extensive 

findings, reflecting the relevant criteria in determining the 

best interests of the children. His order granting custody to 

Leslie Sherrard is af f irmed. 

In October, 1979, appellant moved the District Court to 

award attorney fees and costs to appellant for the purpose of 

bringing this appeal. At that time Judge McPhillips ordered 

respondent to pay $2,500 to appellant's attorney for costs and 

fees, pursuant to section 40-4-110, MCA: 

"Costs -- attorney's - 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 maintaining or defending any proceeding 

under chapters 1 and 4 of this title 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 . . ." 

Respondent cross-appeals from that order, citing In re the 

Marriage of Bliss, (1980), Mont . , 609 P.2d 1209, 37 

St.Rep. 708. In that case we stated that "[section 40-4-110, 

MCA] contemplates that under normal circumstances, an order for 

attorney fees will be permitted only after counsel for the benefitted party has completed his services. Bliss, supra, 

Mont. at , 609 P.2d at 1212, 37 St.Rep. at 711. We noted in 

Bliss that an award of attorney fees prior to appeal was normally 

too speculative. An award of attorney fees, like any other 

award, must be based on competent evidence. Phennicie v. 

Phennicie, (1979), Mont . , 604 P.2d 787, 791, 36 St.Rep. 

2378, 2383. A showing of reasonableness of attorney fees must be 

made by means of a hearing allowing for oral testimony, the 

introduction of exhibits, and an opportunity to cross-examine. 

Aanenson v. Aanenson, (1979), Mont . , 593 P.2d 446, 

450, 36 St.Rep. 1525, 1529. Written findings are required to 
establish both the party's necessity for payment from the 

opposing party and to establish the reasonableness of the fees. 

Gohner v. Gohner, (1980), Mont. , 609 P.2d 288, 289-290, 

37 St.Rep. 613, 615. The hearing in the case now before us 

lacked the definiteness that our law requires. 

At the time of the hearing on the motion for fees and 

costs, appellant's attorney had not yet rendered services in 

bringing this appeal. There was nothing before the trial court 

to indicate what the attorney's specific costs and charges would 

be, or even how much time would be required to write the briefs. 

The trial judge ruled on the motion from the bench. He made no 

written findings as to the reasonableness of the attorney fees 

and transcript costs sought by appellant. Appellant made no 

showing (and the judge entered no finding) of circumstances 

necessitating a prospective award of fees and costs. 

Certain criteria must be met before appeal costs and 

attorney fees in a dissolution case are awarded during the pendency of the appeal. The party seeking to have its costs and 

fees paid by the opposing party must show the financial necessity 

for such a payment, and evidence must be presented to prove the 

reasonableness of the costs and fees. There must also be a 

showing of circumstances which warrant the assessment of costs 

and attorney fees on appeal before they are actually incurred or 

rendered. Finally, the judge must prepare written findings to 

support his or her ruling on the motion for costs and fees. 

Because the proper procedure was not followed in this 

case, and no showing was made to warrant a prior award of fees and 

costs, we vacate that award and remand this cause to the District 

Court. If, on remand, the district judge determines that 

appellant is entitled to fees and costs pursuant to section 

40-4-110, MCA, he can make an award based on the reasonable value 

of the services which now have been rendered. 

Respondent next asks this Court to determine that appellant has 
brought a frivolous appeal, pursuant to Rule 32, M.R.App.Civ.P., 

and to assess damages. We decline to do this. We recently 

discussed the problem of frivolous appeals in custody cases in 

Billings v. Billings (1980 ), Mont. , 616 P.2d 1104, 1106, 

37 St.Rep. 1704, 1706, noting there that adversary proceedings 

are not conducive to the speedy and fair resolution of custody 

cases. In Billings, supra, we found a frivolous appeal, because 

it appeared that Leona Billings moved for a change of venue only 

to delay an ultimate hearing on the merits of the case. Such a 

situation is not presented here. Appellant does not appear to be 

motivated by a desire to needlessly tie up the litigation 

process. Although the facts presented to this Court allowed 

appellant little hope of reversal of the custody order on appeal, 

we are mindful that a parent who loses a custody determination 

will pursue any possible means of regaining his or her children. 

In an area of the law so emotionally-charged as this, we will 

find a frivolous appeal in only the most limited circumstances. 

The custody order is affirmed and the cause is remanded 

for a determination of attorney fees and costs, in accordance 

with this opinion. 

Chief Justice 

We concur: n 

' ,I . Mr. Jueice Fred J. Weber, sitting 

on the panel in place of Mr. Justice 

John C. Harrison