No. 82-490 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

IN RE THE 1IARRIAGE OF 

DANIEL JOSEPH MURPHY, 

Petitioner and Respondent, 

VICKI LYN LWRIE MURPHY, 

Respondent and Appellant. 

Appeal from: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable John M. McCarvel, Judge presiding. 

Counsel of Record: 

For Appellant: 

Hartelius & Ferguson; Cameron Ferguson, Great Falls, 

Montana 

Alexander & Baucus; Ward Taleff, Great Falls, Montana 

(For Children) 

For Respondent : 

James, Gray & McCafferty; Robert F. James, Great Falls, 

Montana 

Submitted on Briefs: April 1, 1983 

Decided: July 19, 1983 

~iled: JUL 1 9 1983 

Clerk 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

Vicki Murphy, now Vicki Nannini, appeals from an order 

of the Eighth Judicial District Court, Cascade County, which 

awarded custody of the parties' minor children to Daniel 

Murphy and denied her attorney's fees. 

Vicki and Daniel Murphy married on March 19, 1977 in 

Philipsburg, Montana. They established residence in Cut 

Bank, Montana, which was Daniel's hometown. Sons, Sean and 

Ryan, were born February 1, 1978 and August 6, 1979, 

respectively. 

On April 14, 1981 Daniel petitioned the Ninth Judicial 

District Court, Glacier County, for dissolution of the 

parties1 marriage. Three months later the action was 

dismissed at the request of the Murphys; however, their 

reconciliation attempt was unsuccessful. On August 25, 1981 

the dismissal order was set aside and the cause transferred 

to the Eighth Judicial District Court for determination. 

Daniel Murphy petitioned the court for custody of the 

children; Vicki Murphy asked the court to grant the parties 

joint custody, with the provision that she would be the 

residential parent. 

After a second reconciliation effort failed, the 

marriage was dissolved on January 28, 1982. Contested 

matters, including child custody, were reserved for 

determination at a later hearing, which was held on July 7, 

1982. 

The court heard testimony from both parties, Vicki's 

current spouse, John Nannini, and various friends and 

relatives. The children's court-appointed attorney 

cross-examined the parties and several witnesses, and upon 

the basis of his previous investigation and the testimony 
presented, submitted his recommendation and report to the 

court. Thereafter the District Court entered it's findings of 

fact, conclusions of law and accompanying order, awarding 

Daniel Murphy custody of the boys. The order further 

provided that Vicki have "custody" of the boys during 

Daniel's workday, and that weekend, holiday and summer 

visitation be determined by reasonable agreement between 

the parties. 

Vicki's objections to the findings of fact were 

subsequently overruled as were her motions for new trial and 

amendment to the findings. This appeal followed. 

Vicki presents three issues for review. First, she 

contends the District Court abused its discretion in awarding 

custody of the children to Daniel. She argues that the 

District Court failed to afford any (or sufficient) weight to 

the preference of the parties' four-year old child and 

penalized her for her conduct during the course of the 

parties' marriage by denying her custody of her children. 

Additionally, Vicki argues the District Court erred in 

failing to explain why the recommendation of the children's 

attorney was rejected. Because this argument relates to the 

second issue, we will discuss it below in that context. 

Prior decisions from this Court have established that 

the District Court must consider the wishes of the children 

regarding custody and make findings as to their wishes or why 

they were not followed. Milanovich v. Milanovich (1982), 

Mont . , 655 P.2d 961, 39 St.Rep. 1554; Kaasa v. Kaasa 

(1979), 181 Mont. 18, 591 P.2d 1110; In re Marriage of Kramer 

(1978), 177 Mont. 61, 580 P.2d 439. 

Here, the District Court made no finding regarding the 

children's preference; Vicki does not contest this fact. 

Instead she protests the court's finding that the preferences 

of a four-year-old child have "little evidentiary value in 
determining custody." Vicki contends more weight should have 

been afforded to Sean's preference absent evidence of record 

that the child was too immature to adequately express his 

wishes. 

As an appellate court we cannot reassess the weight of a 

particular witness's testimony. Just as the trial judge is in 

a better position to determine child custody because he has 

heard the testimony and observed the demeanor of the 

witnesses, Malcolm v. Malcolm (1982), Mont . , 640 

P.2d 451, 39 St.Rep. 262, the trial judge is singularly 

equipped to assess the ability of a young child to formulate 

and articulate his/her custody wishes and weigh that preference 

in light of the other evidence and factors enumerated in 

section 40-4-212, MCA. The District Court committed no error 

by assigning "little" weight to the custody wishes of a 

four-year-old child. 

Vicki next argues that the custody award was predicated 

on the trial court's desire to penalize her for "marital 

misconduct." In support of her argument, Vicki refers to 

several findings of fact included in the district court's 

order, the particulars of which need not be recited, and this 

court ' s decision in Markegard v. Markeqard (1980) , I 

Mont . , 616 P.2d 323, 37 St.Rep. 1539. 

Markegard is inapposite to this cause. There, the 

district court misapplied the doctrine of parens patriae and 

concluded, without evidentiary basis, the child's interest 

would be better protected were he to remain in Montana. 

Here, there is no indication that the District Court based 

its decision on a misapplied legal doctrine. 

Although we may not agree with the trial court's custody 

decision or the necessity of implying that Vicki's conduct 

reflected upon "her fitness as a parent, her stability and 
her priorities," we cannot say the trial court abused its 

discretion or made findings against the clear preponderance 

of the evidence. Absent such determinations, a custody award 

will not be reversed. Jensen v. Jensen (1979), 182 Mont. 

472, 597 P.2d 733. 

The second issue raised is that the District Court erred 

in failing to set forth its reasoning in rejecting Vicki's 

request for joint custody. Since the children's attorney 

recommended that joint custody be awarded to the parties and 

that Vicki be designated as the residential parent, the 

district court's failure to address that recommendation in 

its findings was error. 

Section 40-4-224, MCA, expressly provides that " [ulpon 

application of either parent . . . for joint custody, the 

court shall consider whether or not joint custody is in the 

best interest of a minor child. If the court declines to 

enter an order awarding joint custody, the court shall state 

in its decision the reasons for denial of an award of joint 

custody. " (emphasis added) 

Sections 40-4-222, MCA, et seq., did not come into 

effect until October 1, 1981, approximately three months 

after this cause was reinstated. Nevertheless the District 

Court was bound to follow their mandate. The statutes 

regarding joint custody did not change the substantive rights 

of the parties but merely affected the procedure to be 

followed in custody proceedings. We have long recognized the 

applicability of new procedural statutes to pending cases. 

See, e.g., State ex rel. Johnson v. District Court (1966), 148 

Mont. 22, 417 P.2d 109; 82 C.J.S., Statutes, Section 416, et 

seq. 

Because the district court's findings do not comply with 

section 40-4-224, MCA, the custody award must be vacated and 
this cause remanded for further findings. A new trial is not 

required. 

Finally, Vicki contends that the ~istrict court erred in 

refusing to award her attorney's fees. 

Under section 40-4-110, MCA, the court has discretion to 

award attorney's fees and costs to either party. On appeal, 

the well established rule is that, where there is substantial 

evidence to support the findings of the ~istrict c~urt, 

neither the findings nor the court's discretion will be 

disturbed. In re Marriage of Brown (1978) ,179 Mont. 417, 587 

P.2d 361. 

The District Court was apprised of the relative 

financial status of the parties and knew that Vicki would 

receive $7,000.00 under the parties' approved property 

settlement. On that basis, the court found her to be capable 

of paying her attorney's fees. Upon review of the record, we 

find no reason to interfere with the court's finding or 

conclusion. 

The denial of attorney's fees is affirmed but the child 

custody order is hereby vacated and this cause remanded for 

further findings as required by this opinion. 

We concur: 

Chief Justice