No. 81-323 IN THE SUPRElE COURT OF THE STATE OF MQNTANA 1982

IN RE THE MARRIAGE OF TERESA ANN BAER, Petitioner and Respondent,

CHARLES EGAN BAER, Respondent and Appellant.

Appeal from: District Court of the First Judicial District, In and for the County of Lewis & Clark, The Honorable Gordon R. Bennett, Judge presiding.

Counsel of Record: For Appellant: Robert J. Sewell, Helena, Montana

For Respondent: Joan Uda, Helena,Montana

Submitted on Briefs: March 5, 1982 Decided: July 6, 1982

Filed;

# JUL6-

## 1982Mr. Justice John C. Sheehy delivered the Opinion of the Court. Charles Egan Baer appeals from two orders of the District Court, First Judicial District, Lewis and Clark County. The first order required him to pay $125 in overdue child support, increased the future child support payments, ordered him to pay one-half of the necessary expenses of orthodontia for the parties' child, and found Teresa Baer entitled to her attorney's fees. The second order required Charles to pay Teresa's costs and attorney's fees in the amount of $2,200.64. The parties were married on May 9, 1968, and were divorced

onAugust 6, 1976. They had one child,

### ust tin Michael Baer,who was born on March 26, 1970. At the time of the modification hearing, he was ten years of age. The decree of dissolution and property settlement agreement awarded custody of the child to Teresa, required Charles to pay $125 per month in child support, and provided for Charles' reasonablevisitation with the child, including, but not limited to, every summer for a period commencing two weeks after school and terminating two weeks prior to the beginning of school and "during the Christmas holiday season." Child support was not to be paid during summer visitations. On May 1, 1980,Teresa filed a petition for modification of the divorce decree in which she sought $473.64 in allegedly overdue child supportpayments. The alleged arrearages consisted of three child supportpayments totaling $375 and a claimed entitlement to a daily proration of child support payments for days in June and August of past years when the child resided with Teresa prior to and after the time he spent summervisitation with Charles. She also sought: an increase in child support from $125 per month to $225 permonth with an automatic sevenpercent cost of living increase each year; an assignment of Charle's wages; an order requiring Charles to pay one-half of the cost of orthodontic work for the child;an order expanding Charles' visitation rights to include every otherweekend and requiring him to exercise his visitation rights in a regular and responsible manner; and, an order requiring Charles' to pay Teresa's reasonable attorney's fees and costs. Theparties subsequently stipulated thatvisitation should be expanded to include every other weekend. A hearingwas held on January 19, 1981. On May 19, 1981, the District Court ordered Charles to pay $125 in back child support, increased the monthly child support payments to $175with a five percent annual increase thereafter, ordered Charles to pay one-half of the expenses of the child's orthodontia necessary for health, rather than cosmetic reasons,and stated that if Charles is latewith any future child supportpayment his wages will be assigned. The Court also awarded Teresa her attorney's fees "ina reasonable amount to be determined upon proof thereof." In a separate order, filed February 2, 1981, the District Court dismissedwith prejudice Teresa's claim for a prorated

or daily amount of child support for those portions of June and August immediatelypreceeding and following Charles' summer visitationswith the child. The order also dismissed Charles' counterclaim for a prorated reduction in support payments for the days when the child was with him and support payments were being paid to Teresa. A hearingwas held on July 22, 1981, to determine the costs and attorney's fees to which Teresawas entitled. The District Court concluded that

### her necessary and reasonableattorney's fees and costs amounted to $2,200.64. Charles was ordered to pay her that amount. Mr. Baer presents three issues for review:

(1) Whether the evidencewas sufficient to support the District Court's order finding Charles responsible for delinquent child support, requiring him to pay increased child supportwith automatic costs of living adjustments, and requiring him to pay for orthodontic work for the child. (2) Whether Teresa is entitled to attorney's fees and, if so, in what amount. (3) Whether the District Court committed reversible

error by adopting in toto Teresa's proposed findings of fact, conclusions of law, and order. We affirm the District Court on all issues except that of delinquent child support. The facts argued in the parties' briefs with regard to the issue of delinquent child support are irreconcilable. Furthermore,Charles' inconsistentmethod of paying his monthly support obligations makes clarity difficult. The most straightforward account of his past payments appears in the transcript of the hearingwhere, after an explanation by Charles' attorney, the following exchange occurred: "THECOURT: Iwould conclude from that that wherever the burden was in the firstplace, they've made a prima facie case of paying. Have you got anything to rebut it? 

### " [TERESA'S ATTORNEY] : Other than the fact thatwe don't have the check,no. "THECOURT: Okay. Very well. Then it is settled as a matter of fact that the respondent

[Charles]here is current? "[CHARLES'ATTORNEY]: Ibelieve it is,your Honor. 

### " [TERESA' SATTORNEY] : (Noddedhead.)

### "Teresa contends that therewas ccnfusicn at the hearing in regard to Charles' payment, or nonpayment, of his obligation for September 1978,and September 1979. The District Court apparently agreedwith her because after the hearing it ruled that Charles owed back child support for themonth of September 1978. The District Court does not explain its change of opinion on the issue of back child support,and Teresa's brief to this Court does not sufficiently explain the new finding. Therefore, on the basis of the record as it has come to us wemust reject as clearly erroneous the DistrictCourt's finding that Charles owes back child support for themonth of September 1978. Rule 52(a), M.E.Civ.P. The second element of issue number one is the increase inmonthly child support payments from $125per month to $175with an automatic fivepercent annual increase. Charles contends that the findings of the District Court are not sufficient to justify the increase in support,and are not supportedby substantial credible evidence. Section 40-4-208 (2)(b)

### ,MCA, provides: "Whenever the decreeproposed for modification contains provisions relating to maintenance or support, modification

# ...may only bemade:

(i) upon a sh~wing of changed circumstances so substantial and continuing as to make the terms unconscionable;. 

# .." The fact that the exact words of the statute do not appear in the DistrictCourt's findings and conclusions is of no consequence. We must determine: (1) in light of the evidence in the record, are the findings of the District Court clearly erroneous, Rule 52(a)

### ,M.R.Civ.P. and, (2)in light of the evidence and the findingsbased thereon did the DistrictCourtadhere to the standards outlined in section 40-4-208(2)(b), MCA, inmaking its judgment? We hold that there is sufficient evidence in the record to sustain the findings of the DistrictCourt--that is, theyare not clearly erroneous. Furthermore,we agreewith the DistrictCourt'sapplication of section 40-4-208(2)(L), MCA

# . Charles argues that certain specific findings are not supported by the record. The first of these is the District Court's finding that,due to the increased age of the child and the increased cost of living, the costs of supporting the child have increased by approximately 50 percent since the divorce in 1976. This finding is supportedby Teresa's testimony. For example, she testified that shortly after the divorceher monthly food budgetwas approximately $60, formother and son. Today,her monthly food budget is $190. She also testified that clothes for her son, who is now 11 years old, have increased in both size and price since the divorce. Finally, there is testimony concerning the other increasing costs of raising a child, including health care,hobbies, and the costs associatedwith providing a home for the child. This evidence provides sufficient support for the DistrictCourt's finding. Charles also disputes the DistrictCourt's finding that the costs of supporting the child now amount to a minimum of $350per month, of which Teresa is paying almost two-thirds. Charles claims that according to his calculations,which are based upon an expense statement submittedby Teresa, the monthly cost of supporting the child is $187.15. his figure, however, does not include certain expenseswhich are incurred jointlyby mother and son. There is no specific item of evidencewhich, considered in isolation, proves that the cost of supporting the child is exactly $350 amonth or that Teresa is currentlypaying two-thirds of that amount. There is,however, sufficient evidence in the record tosustain the finding of the DistrictCourt. Therefore,we cannot say that this particular finding is clearly erroneous. Rule 52(a)

## ,M.R.Civ.P. Charles contests the court's finding that he possesses capabilities to increase his incomewhich are not available to Teresa. This finding, he argues, is not supported by the evidence and amounts to speculation. We do not agree. The record contains evidence that Charles has in the past received rental income from friendswith whom he shared his home. There is also evidence that he operates a small construction business during the surmers. Thus, the record supports the finding. We do not intend to say that Charles is obligated to take in tenants or hold a second job. The record indicates, however, thathe has done so in thepast and we therefore cannot say that the court's finding is clearly erroneous. Finally,Charles contends that there is no evidence to support the District Court's finding that he had withdrawn his counterclaim for a prorated reduction in supportpayments. We find support for the findings in the transcript of the hearing held January 19, 1981. At the hearing, Charles' attorneywas informed by the District Court that a detailed accounting would be required for either party to prevail on its prorated support claim. Charles' attorney responded, understandably, thathe had no desire to undertake such an accounting. In response to a motion filed by Teresa,her claim and Charles' counterclaimwere dismissedwith prejudice

on February 2, 1981. Charles raised no objection to this order. The District Court concluded that Charles must pay onehalf of the child's anticipated orthodontic work necessary for health rather than cosmetic reasons. This ismerelya reiteration of his obligation under the original decree. Charles provided no support whatsoever for his allegation that he is not bound to fulfill this responsibility. The next issue iswhether Charles is obligated to pay Teresa'sattorney's fees, and if so, in what amount. The District Court's order of May 19, 1981,provided attorney's fees to Teresa "ina reasonable amount to be determined upon proof thereof." On June 26, 1981, a hearing to determine attorney's fees was scheduled for July 22, 1981. On July 16, 1981, Charles filed his notice of appeal from the order of May 19, 1981. The hearing on attorney's fees was held, as scheduled,on July 22, 1981. On October 6, 1981, the District Court filed findings, conclusions,and an order requiring Charles to pay attorney's fees in the amount of $2,200.64. On October 8, 1981,Charles filed his notice of appeal from the order of October 6, 1981. Charles contends, first, that the award of attorney's fees in the order of May 19 was improper because at that time the District Court had not yetmade findings regarding the relative abilities of each party to pay attorney's fees and regarding Teresa's necessity for reimbursement of her attorney's fees. The findings filed on October 6,do not remedy the absence of the required findings,Charles argues, because the order of May 19 (ordering the payment of attorney's fees in an amount to be determined upon proof thereof), had already been appealed to this Court. The first notice of appeal filed by Charles from the Nay 19, 1981 order was premature. In the order, the court indicated itwould award attorney's fees to be determined upon proof. The May 19, 1981 order was obviously not final,and appeal lies only from a final judgment or order, or

an order otherwiseprovided for in Rule 1,M.R.App.Civ.P. The findingswhich determined the amount of attorney's fees were the DistrictCourt's findings of October 6, 1981, from which Charlesproperly appealed. Section 40-4-110, MCA, provides that a District Court may, from time to time, "after considering the financial resources of both parties," order the payment of reasonable attorney's fees. The ~istrict Court followed the statutory procedure in this case,because it did not set the dollar amount of such fees until it had considered the applicable factors, including the financial

resources of the parties. The order of October 6, 1981,based upon the District Court's findings,was a final judgment or order fromwhich Charles could appeal. Thus,on this facet of the appeal, it is appropriate for us to consider the findings of October 6, 1981 in determining whether the award of $2,200.64 in attorney's fees isproper in the case. Charles next argues that if we conclude, as we have, that Teresa is entitled to attorney's fees, then the amount awarded in this case is unreasonable. He submits that the amount of money involved in the underlying dispute and the result eventually achieved do not justify attorney's fees in excess of $2,000. In support of this position he cites Crncevich v. Georgetown Recreation Corporation (1975), 168 Mont. 113, 541 P.2d 56,where we stated: "'Theauthorities are unanimous in holding that the plaintiffs are entitled to recover a reasonable attorney fee,and for the purpose of determining the amount of such fee the following rulehas been laid down: "Thecircumstances to be considered in determining the compensation to be recovered are the amount and character of the services rendered, the labor, time, and trouble involved, the character and importance of the litigation inwhich the serviceswere rendered, the amount of money or the value of property to be affected, the professional skill and experience called for, the character and standing in the professionof the attorneys 

# . . . The result secured by the servicesof the attorneymay be considered as an important element in determining their value [citingForrester & MacGinniss v. B. & M. Co. (1914),29 Mont. 397, 409, 74 P. 1088, 10931

### "

### '" 168 Mont. at 119-120, 541 P.2d at 59. Section 40-4-110,MCA, provides statutory authority for the award of attorney fees in the present case: "Costs-attorney's fees. The court from time to time, after considering the financial resourcesof both parties,may order a party to pay a reasonable amount for the cost to the other party ofmaintaining 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 commencementof the proceeding or after entry of judgment

# .

# .." The standards for determining the reasonableness of attorney's fees are set forth in Crncevich, supra, and a multitude of marriage cases, representative lists of which

canbe found in In Re Marriage of Grace (1982),-Mont. - I 643 P.2d 1188, 1190, 39 St.Rep. 791, 793, and Duffey v. Duffey (1981), Mont

# . -" 

### , 631 P.2d 697, 699, 38 St.Rep. 1105,

Duffey, supra, states that written findings are required to establish the financialneeds of the parties and the reasonablenessof the award of attorney's fees. 631 P.2d at 699, 38 St-Rep.at 1107. In the present case the District Court made written findings regarding need and reasonableness. These findingsare supported by the evidence from the two hearings. The relative financial positions of the two parties was thoroughlypresented in the firsthearing. With specific regard to the reasonableness of the fee, the evidence indicates that the circumstances outlined in Crncevich, supra,were considered by the District Court. Furthermore, it is clear from the record that the District Courtwas apprised of the financial resources of both parties and thatthese resourceswere considered in reaching the judgment as required by section 40-4-110,MCA. Charles contends that the attorney's fees should be prorated on the basis of Teresa's rate of success on the various claims she raised against him. The discretion of the District Court to award attorney's fees in marital cases is to be based upon the District Court's discernment of the case as a whole. Indetermining fees, the District Court is not required to dissect the anatomy of the lawsuit to find a bone here, sortie fat there and solidmeat elsewhere. Unless there is an abuse of discretionwe will not disturb the court's award of attorney's fees. We find no abuse in this case. The third issue addresses the District Court's verbatim adoption of Teresa'sproposed findings of fact and conclusions of law. We have discussed this issuemany times. See, City of Billings v. Public Service Com'n. (1981), -Mont

# . - 

### , 631 P.2d 1295, 38 St.Rep. 1162; In Re Marriage of Jensen (1981), Mont. 631 P.2d 700, 38 St.Rep. 1109; In Re Marriage - 

### - of Beck (1981),

### -Mont. 

### - 

### , 631P.2d 282; 38 St.Rep. 1054; Tomaskie

### v. Tomaskie (1981),

### -Mont. 

### - 

### , 625 P.2d 536, 38 St.Rep. 416. We have stated repeatedly that we disapprove of the wholesale adoption of proposed findings and conclusions. We have also stated,however, that in reviewing a District Court's findings, regardless of their source,we are governed by Rule 52(a), M.R.Civ.P.; Jensen, 631 P.2d at 703-704, 38 St-Rep.at 1113. The findings of the DistrictCourt in the present case are not clearly erroneous. Furthermore, the DistrictCourt's conclusi~nsof law properly reflect the laws of Montana. The judgment of the District Court is affirmed in all respects except the award of delinquent supportpayments.Justice

We Concur- /

# i