No. 80-23 INTHE SUPREME COURT OF THE STATE OF MONTANA 1981

IN RE THE MARRIAGE OF PEGGY JO SHERRARD BIER, (alsoa Respondent) Petitioner and Appellant,

LESLIE D. SHERRARD, (alsoan 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: 

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Filed: yFi; 

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# kChief 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 custodydetermination to be made af

### ter a psychological evaluation of both parents and the oldest child. Thirteenmonths later, Leslie Sherrard sought permanent custody. A hearing 

### was held inMay 1979, and custody

### was awarded toLeslie. Peggy Sherrard Bier appealed. On motion of appellant, the districtjudge ordered respondent 

### to pay $2,500 for attorney fees and 

### costs on appeal. There are three issues before thisCourt on appeal: (1)Did the districtjudge 

### err in awarding custodyof the children to the father? (2)Did the districtjudge 

### err in awarding to appellant costs and attorney fees for the purpose of bringing thisappeal? (3)Does the appeal of this custody order constitute a frivolous appeal under Rule 32, M.R.App.Civ. P.? Inorder toprevail, Peggy Sherrard Biermust 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 DistrictCourt's custody order, thisCourt need only look to the record to see if the factors set forth in section 40-4-212, MCA, 

### were considered, and thenmust determine whether the 

### trial court made appropriate findingswith respect to these criteria. Markegard v. Markegard (1980)

## , Mont

# . , 616Custodymust be determined in accordance with the best interestsof the child, with the court considering allrelevant 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 hisparent orparents, his siblings, and any otherperson 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 eitherparent's having custody. The relevant evidence indicates thatPeggy was a good wife and mother until the 

### timeof 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 atthat 

### time and shortly thereafter, she and Leslie separated. Leslie moved out of their trailerhouse but moved back inwhen Peggy and the children moved inwith Richard Bierand his three children. Apparently Leslie atleast acquiesced to her living with Bier, even helping her move. After the firstmove, Peggy moved back and forth constantly, bringing the childrenwith her; the record shows some ten tripsbetween the 

### twohomes during an 18-month period. The testimony indicates thatPeggy's moves back inwith Leslie resulted from her anger atBier, orfrom her distress at caring for fivechildren. Bierand Peggy fought frequently and he beat her up, causing her to go to the county attorney. Bier developed a drinking problem a£

### ter hishomicide conviction. The evidence also indicates that the Bier children and the Sherrardchildren 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 Bierbegan serving his sentence atDeer Lodge (shortlyafter 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 relationshipwith their father and thathe can provide a stable home for the children, despite the fact thathe is

a deaf mute. The children have spent a greatdeal of timewith theirpaternal grandparents and apparently have a good relationshipwith them. Respondent earns a good income, is employed

as a mechanic, and has a trailer inwhich he and the children can reside. The paternal grandparents testified to their willingness to assistrespondent in raising the children. The findingsof the District Court indicate that appellant is - not an unfitmother. However, the judge did find that the interestsof the children would be best served by placing the childrenwith their father. Hisfindings indicate that the childrenhad a better interactionwith their father, and that because the respondent appeared to be a 

### more stableperson, the environment athishome 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 thatbecause the judge found her to be

a fitmother, she is the proper custodian for the children. In making such an argument, appellant is asking thisCourt to ignore the dictates of the legislature inpassing section 40-4-212, MCA. That section demands that the District Court determine custody in accordance with the best interests of thechild. Fitness of 

### a parent 

### is onlyone 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 districtjudges in the past, the presumption 

### was never considered conclusive; each 

### case was considered on its own facts. See In 

### re Marriage of Tweeten (1977), 172Mont. 404, 409, 563 P.2d 1141, 1144. Additionally, thisCourt recently ruled inIn



### re the Marriage of Markegard, supra, Mont. at 

## , 616 P.2d at325, 37 St.Rep. at 1541, thatthe "tender years presumptiont1 should no longer be considered 

### at all in this state in lightof the enactment of the UniformMarriage and Divorce Act. 

### We overruled Tweeten in the Markegard 

### case in 

### so faras Tweeten supported the "tender years presumption." The districtjudge here



### was correct innot making 

### a finding as 

### to the preference for the mother.The older Sherrard child, Jason, aged 5, 

### was asked by the judge about hispreference incustody. He responded, "Iwant 

### to livewith my 

### mommie." The 2% year old child 

### was not interviewed. Appellant contends that this is another example showing that the judge abused hisdiscretion innot awarding custody 

### to Peggy. We disagree. Montana 

### lawdoes not require the districtjudge 

### 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), 177Mont. 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 hismother, and later findings express the judge's reasons fordisregarding thatpreference. The districtjudge clearly followed the dictatesof Montana 

### law inconsidering the wishes of the children. 

### Kramer, supra;

see 

### also Tweeten, supra, 172Mont. at408, 563 P.2d 

### at 1143.Appellant also asks thisCourt to find an abuse of discretion inthe judge's failure toorder psychological 

### tests for Peggy and Jason and requiring respondent 

### to pay for them. The decree entered inJanuary 1978, leftthe permanent custody decisionpending until Leslie, Jason, and Peggy received evaluations. Atthe hearing inMay 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 afford 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." InSchiele 

### v. Sager (1977), 174Mont. 533, 538-39, 571 P.2d 1142, 1146, 

### we discussed this statute, noting that it dic

### tates an exercise of discretion by the districtjudge indetermining whether findings of professional personnel arenecessary 

### to resolving custody disputes. Here, the judge's findings indi

### cate thathe did not find 

### it necessary to order the 

### tests inMay 1979, and appellanthas 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 inconsidering evidence concerning Peggy's threatened suicide attempts. Finding of factNo. 26 provides: "Evidence was introduced indicating that Petitioner threatened to commit suicide on 

### two separateoccasions.

### " Appellant argues that there

### was insufficient evidence to support that finding. The record shows con£licting evidence

on thispoint, fromwhich the judge 

### as the 

### trier of fact 

### isentitled 

### to draw his own conclusions. Jensen, supra, Mont. at 

## ,597 P.2d at735, 36 St.Rep. at 1262. Based on the foregoing, we find no abuse of discretionby the districtjudge. The judge in this 

### case made extensive findings, reflecting the relevant 

### criteria indetermining the best interestsof the children. Hisorder granting custody to Leslie Sherrard is affirmed. InOctober, 1979, appellant moved the District Court 

### to award attorney fees and costs 

### to appellant for the purpose of bringing this appeal. Atthat

### timeJudge McPhillips ordered respondent to pay $2,500 to appellant's attorney for costs and fees, pursuant 

### to section40-4-110, MCA: "Costs

## -- attorney's fees. The court from 

### time 

# - to time, after considering the financial resour

### ces of both parties, may order a party to pay 

### a reasonable amount forthe 

### cost to the other party of maintaining ordefending any proceeding under chapters 1and 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 afterentryof judgment

# . .." Respondent cross-appeals from thatorder, 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 thatunder normal circumstances, an order for attorney fees willbe permitted only aftercounsel for the benefitted party has completed his services. Bliss, supra, Mont. at 

## , 609 P.2d at 1212, 37 St.Rep. at711. Wenoted 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 fororal testimony, the introduction of exhibits, and anopportunity to cross-examine. Aanenson v. Aanenson, (1979), Mont

# . ,593 P.2d 446, 450, 36 St.Rep. 1525, 1529. Written findings 

### are required toestablish both the party's necessity forpayment 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. Atthe timeof 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, oreven how much timewould be required 

### to write the briefs. The trial judge ruled on the motion from the bench. Hemade 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 

### metbefore 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 feespaid 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 costsand 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 thiscause 

### to the District Court. If, on remand, the districtjudge 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 serviceswhich now have been rendered. Respondent next asks this Court to determine that appellant hasbrought 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 incustody 

### 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 fairresolution of custody



### cases. InBillings, supra, 

### we found a frivolous appeal, because it appeared thatLeona Billingsmoved for 

### a change of venue only 

### todelay 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 factspresented 

### to thisCourt allowed appellant littlehope of reversal of the custody order on appeal,



### we are mindful that 

### a parent who 

### loses 

### a custodydetermination 

### willpursue 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 inonly the 

### most limited circumstances. The custody order 

### is affirmed and the cause 

### is remanded fora determinationof attorney fees and costs, in accordance with thisopinion.

Chief Justice 

### We concur: n



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# . Mr. JueiceFred J. Weber, sitting on thepanel inplace of Mr. Justice John C. Harrison