### No. 83-89 INTHESUPREME COURTOF THE STATEOFMONTANA 1983

INTHEMATTER OF THE CUSTODY OF R.L.S. and T.L.S., Petitionersand Respondents, VS

# . CARLA JEAN BARKHOFF,a/k/a ENGDAHL, Appellant and Respondent.

Appeal from: District Courtof the Tenth JudicialDistrict, Inand for the County ofFergus HonorableNatAllen, Judgepresiding. Counsel of Record: ForAppellant: WilliamE. 

### Berger, Lewistown,Montana For Respondents: Berger Law Firm,Billings,Montana Torger Oaas, Lewistown,Montana

Submitted on Briefs: September 2, 1983 Decided: December 16, 1983 Filed: 

## DEC

## I6

## 1983 

# &&,

# *lLl&-,,, C 

### Clerk

### Mr. Justice John Conway Harrison delivered the Opinion of the Court.

This appeal is the second time the custody dispute

over these two children has reached this Court. The first decision, Sayerv. Barkhoff (Mont. 1981), 632 P.2d 703, 38 St.Rep. 1328, reversed the District Court ruling and remanded it for futherproceedings. On remand the Honorable Nat Allen assumed jurisdiction from the Honorable LeRoy McKinnon at the request of the parties, and a new trial was held. This appeal is taken from the District Court ruling granting attorney fees before the second trial,and from the ruling granting modification of aWyoming custodydecree. The second trial was a series of accusations and counter accusations as to the unfitness of the opposing party to raise the children. From the record the few uncontroverted facts appear as follows. Appellant, hereinafter Mother and respondent, hereinafter Father, are the natural parents of R.L.S., born October 

### 7, 1975, and T.L.S., born October 1,1976. When the children were born, the couple resided together in Sheridan, Wyoming, without the aid of marriage. They separated in the summer of 1979, and initially Father retained custody of the children. Following several extralegal attempts to gain custody, Mother petitioned a Wyoming District Court for, and was granted, a writ of habeas corpus giving her custody of the children. Finally the parties signed a custody agreement in settlement of apaternity suitbrought by Father. The agreement established Father's paternity, but gave primary custody of the children to Mother and a reasonableright of visitation to Father. SpecificallyMother was to have the children the first six months of each year and Father the last sixmonths until each child reached school age. When each child startedattending school, Mother would have custody during the school year and Father during the

summer months. Sometime thereafter, Mother and the children left Sheridanand moved toLewistown, Montana. Father petitioned the District Court of the Thirteenth Judicial District, Yellowstone County, for a modification of the custody decree, seeking primary custody. Mother answered and cross petitioned seeking sole custody herself. Venue was subsequentlychanged to the Tenth Judicial District, Fergus County, where a non-jury trialwas held. On December 1, 1980, the District Court entered 

### its findingsof factand conclusionsof law, granting theMother solecustodyof thechildren, and limiting theFather toone month's visitation during the summer. The evidence atthis trialwas limited totestimony about events occurring after theWyoming decreewas issued, and thisCourt held thatwas

error. On August 20, 1981, the case was reversed and remanded to the District Court for further proceedings. Mother moved the District Court on September 23, 1981, to grant her attorney fees for both the first trial and the appeal. After a hearing themotion was granted on January 28, 1982. The second trialcommenced onAugust 5, 1982. Atthis point the uncontroverted facts nearly disappear, and the parties tell almost diametrically opposed stories. At the second trial, Father attempted to show that Mother'shousekeeping skills were nill, that she neglected the children and beat them, that she abused alcohol and drugs, thather livingarrangementswere veryunstable and posed an unhealthy environment and shecould not hold a job. Mother attempted toshow thatFather abused alcohol, had a violent temper and was brainwashing the children intobelieving she had abandoned them. Both sidespresented numerous witnesses in support of their respective stories. On October 25, 1982, the District Court entered its findings of fact, conclusionsof law and order. The court found the environment in the MotherIshome endangered their physical, mental, moral and emotional health, that any harm likely to be caused to the minor children by a change to Father's custody, would be outweighed by the advantages and that it was in the best interest of the children to modify the decree. It was ordered that the custody of the children be changed to Father and that Mother have limited rights of reasonable visitation. Thisappealfollowed. Four issuesareraisedby theparties: 1. Did the District Court err by photocopying and adopting verbatim FatherIsproposed findings of fact and conclusions of law? 2. Did Father show sufficient facts from which the District Court could order a modification of the custody decreepursuant toSection40-4-219, MCA? 3. Did Father show sufficient facts from which the District Court could limitMotherwsvisitation pursuant to Section40-4-217, MCA? 4. Did the District Court err by awarding attorney

### fees and expenses to Mother for the first trial and appeal, and not the full amount of her attorney fees for the second trial?Mother also seeks an award of $1,000 for attorney fees of thepresent appeal. Mother asserts the trial court abused its discretion by photocopying Father's proposed findings of fact and conclusions of law, and argues that since the evidence was conflicting the trial court should havebeen more careful to exercise its own judgment. Finally she points out certain facts found by the District Court which she claims are not supportedby the record. This Court has consistently held that it is not good practice for the District Court to adopt verbatim one party's proposed finding of fact and conclusions of law because it may lead to error. Tomaskiev. Tomaskie (Mont. 1981), 625 P.2d 536, 38 St.Rep.416; InReMarriage of Beck (Mont. 1981), 631P.2d 282, 38 St.Rep. 1054. However, once the District Court adopts findings and conclusions they become the court's own, and may not be overturned on appeal unless they are clearly erroneous under Rule 52(a), M.R.Civ.P. Speerv. Speer (Mont. 1982), 654 P.2d 1001, 39 St.Rep. 2204. There is no more than a technical difference between photocopying one party's proposed findings and conclusions and adopting them verbatim, the legal effect is the same. As the cases cited above show, even if the District Court adopts one party's proposed findings and conclusions verbatim, the "clearly erroneous" standard applies on appeal. When the findings and conclusions are not clearly erroneous and are supported by the record, the

### judge has not abused his discretion by ratifying the proposals of oneparty. The record in the case at bar contains two stories, and it is difficult to imagine how they could be farther apart. We note that although Father requested the District Court to order an investigation of the "[Hlome, life style, living conditions and stability," of Mother by the Department of Social and Rehabilitation Services, no order

was issued. Section 40-4-215,MCA, gives the District Court the discretion to order such an investigation, and we have ruled that absent an abuse of this discretion, it is not

error to fail to make such an order. Schielev. Sager (1977), 174 Mont. 533, 571 P.2d 1142. However, where the respective tales are nearly irreconcilable as here, it is possible that the true factsmay not be ascertained by oral testimony alone, and an independent investigation may aid the court immensely. In the future though, District Courts would be well advised to make use of this tool to avoid having to rule simply by choosing between two incredible stories. Approximately five percent of the pertinent facts are agreed on by the parties, the remainder being stubbornly contested by both sides. When the testimony is conflicting and the credibility of the witnesses is the determinative factor, it is the function of the trier of fact to set forth the correct facts. Cameronv. Cameron (1978), 179 Mont. 219, 587 P.2d 939. On appeal this Court views the evidence in the light most favorable to the prevailing party, and if there is substantial evidence to support the lower court's findings they will not be overturned, Cameron, supra.Though the evidence conflicts with other evidence, it may still be substantial. Campeau v. Lewis (1965), 144 Mont. 543, 398 P.2d 960. If the District Court Judge in this case found Father's witnesses more credible, the findingsof factmade

were clearlynot erroneous. Several witnesses testified to Mother's sloven housekeeping habits and lifestyle. She admits she has held several differentjobs in the past few years and was fired from one for being habitually late. There was ample testimony of her abuse of alcohol and drugs inthepresence of the children sinceher move toLewistown. Mother admitted having changed residences at least five 

### times in the two years before trial, and is presently receiving no steady income. There was also physical evidence in the form of photographs introduced at trial, showing bruises on thebody of R.L.S., along with testimony thatone of thepersons withMother had beat thechild. Mother points out specificfactswhich she claims are not supported by the record. We have examined the record and find her assertions incorrect. At best there is contradictory evidence concerning each claimed error and as stated above we must defer to the judgment of the trial courtwhere the findingsarebased on conflicting evidence. The record contains substantial credible evidence to support the District Court's findings of fact and conclusions of law. Viewing the record in the light most favorable to the prevailing party, the court clearly acted within itsdiscretion astrierof fact. The second issue raised by Mother 

### is whether there is

a sufficient change in circumstances to warrant amodification of the custody decree pursuant to Section 

## 0) 40-4-219(c), MCA, which provides that: 

## h "The court shall not modify a prior custody decree unless it finds, upon the basisof facts thathave arisen sincethe prior decree or thatwere unknown tothe court atthe time of entry of the prior decree, thata changehasoccurred inthe circumstances of the child or his custodian and that the modification 

### is necessary to serve the best interest of the child. In applying these standards the court shall retain the custodian appointed pursuant to the prior decree unless:

"(c) the child's present environment endangers seriouslyhisphysical, mental, moral, or emotional health and the harm likely to be caused by a change of environment 

### is outweighed by its advantages tohim." The statute setsouta two part 

### test. The firstpart of the 

### test contains two subparts which bear a qualifying relation to each other. Gilmorev. Gilmore (1975), 166 Mont. 47, 530 P.2d 480. There must be a change of circumstances, but thatchange 

### is notmeasured in a vacuum. The change must be significant enough in relation to the best interests of the child that those interests are no longer servedby thedecreeinforce. The best interestsof the child in a modification proceeding are judged by the criteriaof Section40-4-212, 

### MCA. Schielev. Sager (1977), 174 Mont. 533, 571 P.2d 1142. The second part of the test also involves two subparts which bear 

### less of a relation than those above, but are intertwined nonetheless. The primary custodian may not be changed unless the court finds the enumerated dangers exist, and the advantages of change outweigh the disadvantages. As mentioned above, the facts foundby thetrialcourtaresupportedby therecord and are

### thus applied to the test set out in the statute. The District Court did not enumerate the facts which met each part of the test. However, this court will look through the form to the substance of the trial court's findings. In Re the Marriage ofA.R.C. v. C.K.C. (Mont. 1983), 661P.2d 459, 40 St.Rep. 499. The facts, as found by the court, clearly show a change in circumstances of Mother and the children. Mother has removed the children from the Sheridan, Wyoming, area to Lewistown, Montana, several hundred miles from Father. When Mother was granted custody, she held 

### a steady job in Sheridan,but since that time she has bounced from job to job and at the time of trial had no steadymeans of support. Mother has also developed a habit of changing residences every few months and maintained what could be termed "communal" living arrangements because of the large number of different persons residing with her on both temporary and permanent bases. The children have been left with a variety of young babysitters or with none at all. Mother was incarcerated and fined for conducting herself in

a disorderly manner at a Lewistown bar during the time she had custody of the children. There was also evidence that both Mother and members of her household had struck and physically abused the children. This is by no means an exhaustive list of the changed circumstances; suffice it to say that the evidence clearly supports the District Court's conclusions of law numbers 2, 

### 3 and 

### 4. The children's environment with Mother, "endangers seriously their physical, mental, moral and emotional health." "[Tlhe harm likely to be caused to the minor children by a change ofenvironment tothatof thenatural father is most certainly outweighted by its advantages to the minor children;" and "modification 

### is necessary to serve the best interests of theminor children.

### " Next, Mother contendsthattheDistrict Courterredby limiting her visitation because there was no finding that visitationwould endanger the children, nor would therecord supportsuch a finding. The Wyoming custody decree gave both parties reasonable visitation rights while the childrenwere in the

care of the other parent. Thus, the District Court's restriction of Mother's visitation 

### is governed by Section 40-4-217(3), MCA, which setsout theapplicable standard. A parents' visitationrightsmay notbe restricted unlessthe courtfindsthatthevisitationwould, "[elndanger seriously the child's physical, mental, moral or emotional health." We note that this is the same standard used to judge the modificationof custodydecrees inSection40-4-219, MCA. Applying the factsfound by the trialcourt, there is clearly no error here. The factsdiscussed indeciding the previous issue allsupport the District Court's decision to limit Mother's visitation. Specifically in conclusion of law number 2, the court found, "That the minor childrens' environment with the natural mother endangers seriously their physical, mental, moral and emotional health." This Court will look through the form to the substance of the District Court's ruling, A.R.C., supra, and the District Court apparently felt that this unhealthy environment existedwhen thechildrenvisitedMother aswellaswhen she had custody of them. The visitation rights were adjustedaccordingly, and 

### we findno error in thatruling. The fourth issue 

### is raised by both Father, who contends that the District Court erred by granting Mother attorney fees for the first trial and appeal, and Mother, who contends the District Court erred by not granting her the full amount of attorney fees requested for the second trial. The chronology of eventsmust be elaborated here to provide a context for discussion of this issue. The District Court entered its findings of fact and conclusions of law and order for the first trial on December 1, 1980. Mother had requested attorneyfeesinher answer toFather's petition for modification, but none 

### were granted by the DistrictCourt in

### itsDecember 1, 1980, order. Father filed his notice of appeal on December 30, 1980. This Court reversed theDistrictCourt ruling on August 20, 1981, and remanded for furtherproceedings. On December 28, 1981, Mother moved the District Court to grant her attorney fees for the firsttrial and appeal, and for future costs of the second trial. Briefs 

### were submitted and arguments made before theDistrictCourt, and the motion was granted on January 28, 1982. Father was ordered to pay over to the clerk of court $1,500 representing Mother's attorneyfees for the firsttrial and appeal, and $700 for future attorney fees. The money was deposited with the clerk of court and Mother's attorney received the entire amount by August 23, 1982. The second trialconcluded onAugust 30, 1982and thisappealfollowed. Father contends the District Court was without jurisdiction togrant attorney fees for the firsttrial and appeal, and we agree. Mother's motion was made pursuant toSection40-4-110, MCA, which allows attorneyfeesincertain domestic relations cases. However, since the judgment did not provide for attorney fees, the judgment must have been amended before either party could be ordered topay those fees. A motion toamend a judgment must be made within ten days of 

### its entry, Rule 59(g)M.R.Civ.P. This rule applies to requests for attorney fees, and is not overridden by Section 40-4-110, MCA. McDonald v. McDonald (1979), 183 Mont. 312, 599 P.2d 356. Since Mother's motion was made

more than a year after the judgment 

### was entered, it was untimely and theDistrict Court was without jurisdiction to grant attorneyfeesfor the firsttrial. The District Court was also without jurisdiction to grant Mother attorney fees on appeal when the matter first appeared before this Court. The first opinion did not address the request, thus it is deemed denied. That tacit denial is as effective as if set out explicitly in the opinion, and it is part of the judgment of this Court. Lloyd v. Cityof GreatFalls (1939), 107Mont. 588, 87 P.2d 187. On remand, the District Court has no power tomodify thejudgment of the Supreme Court. StateEx Rel. Vaughn 

### v. DistrictCourt (1941), 111 Mont. 552, 111 P.2d 810. Since this Court essentially ordered each party to bear its own attorney fees, the District Court erred by ordering Father topayMother's attorney fees. Mother 

### claims that the judgment in the second trial should have contained an award of the remaining amount of her attorneyfeesincurred forthat trial. Her reasoning is that theJanuary 28, 1982, order granted her futureattorney fees, which she interprets to mean all attorney fees.

### However, the order granted a specific amount and did not make a blanket award. Section 40-4-110, MCA, gives the District Court discretion in awarding attorney fees, and absent an abuse of discretion its ruling will stand. Harris

v. Harris (Mont. 1980), 616P.2d 1099, 37 St.Rep. 1696. Finally, Mother requests an award of attorney fees incurred for thisappeal. The record contains affidavits of both parties with respect to their financial affairs, which disclose that neither party is receiving an inordinate amount of income over their necessary expenses. In light of the foregoing opinion affirming the District Court, it is ordered thatboth parties bear their own attorney fees. From the record of this case, it is apparent that neither parent has provided an ideal environment for raising the children. Given that the District Court has continued jurisdiction over child custody matters, see Erhardt v. 

### Erhardt (1976), 171 Mont. 49, 554 P.2d 758, the District Court ishereby ordered to direct the Department of Social and Rehabilitation Services or other appropriate public body, to conduct periodic investigations and make reports of the living conditions and environment of both parents as it may relate to the welfare of the children. This order is made pursuant to Section 41-3-201, MCA, 

### et seq., and is to remain in effect for one year from the date of its entry by the District Court, unless that court deems

an extension necessary. Since the children will spend the majority of their time with their Father and thus may be in Wyoming, the District Court shall empower the Department to obtainwhatever cooperation and assistance isnecessary from the agencies of 

### that state to carry out the order.Affirmed in part, reversing award of attorney fees.

We concur: 

# %Add. *z 

# WQa?
Chief Justice

Justices

Mr. Justice Daniel J. Shea, specially concurring: Although Iwould affirm theresult, I emphasize again that theprocess of adoptingverbatim theproposed findings and conclusions

### of theprevailing party is demeaning tothe judicialprocess.