No. 83-89 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

IN THE MATTER OF THE CUSTODY OF 

R.L.S. and T.L.S., 

Petitioners and Respondents, 

VS . 

CARLA JEAN BARKHOFF, a/k/a ENGDAHL, 

Appellant and Respondent. 

Appeal from: District Court of the Tenth Judicial District, 

In and for the County of Fergus 

Honorable Nat Allen, Judge presiding. 

Counsel of Record: 

For Appellant: 

William E. 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 I 6 1983 

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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, Sayer v. Barkhoff (Mont. 1981), 632 P.2d 703, 38 

St.Rep. 1328, reversed the District Court ruling and 

remanded it for futher proceedings. 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 a Wyoming custody decree. 

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 a paternity suit brought by Father. 

The agreement established Father's paternity, but gave 

primary custody of the children to Mother and a reasonable 
right of visitation to Father. Specifically Mother was to 

have the children the first six months of each year and 

Father the last six months until each child reached school 

age. When each child started attending school, Mother would 

have custody during the school year and Father during the 

summer months. 

Sometime thereafter, Mother and the children left 

Sheridan and moved to Lewistown, 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 

subsequently changed to the Tenth Judicial District, Fergus 

County, where a non-jury trial was held. 

On December 1, 1980, the District Court entered its 

findings of fact and conclusions of law, granting the Mother 

sole custody of the children, and limiting the Father to one 

month's visitation during the summer. The evidence at this 

trial was limited to testimony about events occurring after 

the Wyoming decree was issued, and this Court held that was 

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 the motion was granted on January 

28, 1982. 

The second trial commenced on August 5, 1982. At this 

point the uncontroverted facts nearly disappear, and the 

parties tell almost diametrically opposed stories. At the 

second trial, Father attempted to show that Mother's 
housekeeping skills were nill, that she neglected the 

children and beat them, that she abused alcohol and drugs, 

that her living arrangements were very unstable and posed an 

unhealthy environment and she could not hold a job. Mother 

attempted to show that Father abused alcohol, had a violent 

temper and was brainwashing the children into believing she 

had abandoned them. Both sides presented numerous witnesses 

in support of their respective stories. On October 25, 

1982, the District Court entered its findings of fact, 

conclusions of law and order. 

The court found the environment in the Mother Is home 

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. This appeal followed. 

Four issues are raised by the parties: 

1. Did the District Court err by photocopying and 

adopting verbatim Father Is proposed 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 

decree pursuant to Section 40-4-219, MCA? 

3. Did Father show sufficient facts from which the 

District Court could limit Motherws visitation pursuant to 

Section 40-4-217, 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 the present 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 have been more careful to 

exercise its own judgment. Finally she points out certain 

facts found by the District Court which she claims are not 

supported by 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; In Re Marriage of Beck 

(Mont. 1981), 631 P.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. Speer v. 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 one party. 

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. Schiele v. 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 facts may 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. Cameron v. 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 findings of fact made 

were clearly not erroneous. Several witnesses testified to 

Mother's sloven housekeeping habits and lifestyle. She 

admits she has held several different jobs 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 

in the presence of the children since her move to Lewistown. 

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 the body of R.L.S., along with testimony 

that one of the persons with Mother had beat the child. 

Mother points out specific facts which 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 

court where the findings are based 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 its discretion as trier of fact. 

The second issue raised by Mother is whether there is 

a sufficient change in circumstances to warrant a 
modification 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 

basis of facts that have arisen since the 

prior decree or that were unknown to the 

court at the time of entry of the prior 

decree, that a change has occurred in the 

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 seriously his physical, mental, 

moral, or emotional health and the harm 

likely to be caused by a change of 

environment is outweighed by its 

advantages to him." 

The statute sets out a two part test. The first part 

of the test contains two subparts which bear a qualifying 

relation to each other. Gilmore v. Gilmore (1975), 166 

Mont. 47, 530 P.2d 480. There must be a change of 

circumstances, but that change is not measured in a vacuum. 

The change must be significant enough in relation to the 

best interests of the child that those interests are no 

longer served by the decree in force. The best interests of 

the child in a modification proceeding are judged by the 

criteria of Section 40-4-212, MCA. Schiele v. 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 

found by the trial court are supported by the record 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 of A.R.C. v. C.K.C. (Mont. 

1983), 661 P.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 steady means 

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 of 
environment to that of the natural father is most certainly 

outweighted by its advantages to the minor children;" and 

"modification is necessary to serve the best interests of 

the minor children. " 

Next, Mother contends that the District Court erred by 

limiting her visitation because there was no finding that 

visitation would endanger the children, nor would the record 

support such a finding. 

The Wyoming custody decree gave both parties 

reasonable visitation rights while the children were 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 sets out the applicable standard. A 

parents' visitation rights may not be restricted unless the 

court finds that the visitation would, "[elndanger seriously 

the child's physical, mental, moral or emotional health." 

We note that this is the same standard used to judge the 

modification of custody decrees in Section 40-4-219, MCA. 

Applying the facts found by the trial court, there is 

clearly no error here. The facts discussed in deciding the 

previous issue all support 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 

existed when the children visited Mother as well as when she 

had custody of them. The visitation rights were adjusted 
accordingly, and we find no error in that ruling. 

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 events must 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 attorney fees in her answer to Father's 

petition for modification, but none were granted by the 

District Court in its December 1, 1980, order. Father filed 

his notice of appeal on December 30, 1980. This Court 

reversed the District Court ruling on August 20, 1981, and 

remanded for further proceedings. 

On December 28, 1981, Mother moved the District Court 

to grant her attorney fees for the first trial and appeal, 

and for future costs of the second trial. Briefs were 

submitted and arguments made before the District Court, 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 attorney fees for the first trial 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 

trial concluded on August 30, 1982 and this appeal followed. 

Father contends the District Court was without 

jurisdiction to grant attorney fees for the first trial and 

appeal, and we agree. Mother's motion was made pursuant to 
Section 40-4-110, MCA, which allows attorney fees in certain 

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 to pay those 

fees. A motion to amend 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 the District Court was without jurisdiction to 

grant attorney fees for the first trial. 

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. City of Great Falls (1939), 107 Mont. 588, 87 P.2d 

187. On remand, the District Court has no power to modify 

the judgment of the Supreme Court. State Ex Rel. Vaughn v. 

District Court (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 

to pay Mother's attorney fees. 

Mother claims that the judgment in the second trial 

should have contained an award of the remaining amount of 

her attorney fees incurred for that trial. Her reasoning is 

that the January 28, 1982, order granted her future attorney 

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), 616 P.2d 1099, 37 St.Rep. 1696. 

Finally, Mother requests an award of attorney fees 

incurred for this appeal. 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 that both 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 is hereby 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 

obtain whatever cooperation and assistance is necessary 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 I would affirm the result, I emphasize again 

that the process of adopting verbatim the proposed 

findings and conclusions of the prevailing party is 

demeaning to the judicial process.