No. 81-323 

IN THE SUPRElE COURT OF THE STATE OF MQNTANA 

19 8 2 

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; JUL 6- 1982 
Mr. 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 

on August 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' reasonable visitation 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 support payments. The alleged arrearages 

consisted of three child support payments 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 summer visitation with Charles. She also sought: an 

increase in child support from $125 per month to $225 per 
month with an automatic seven percent 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 other weekend 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. 

The parties subsequently stipulated that visitation 

should be expanded to include every other weekend. 

A hearing was 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 $175 with 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 late with any future 

child support payment his wages will be assigned. The Court 

also awarded Teresa her attorney's fees "in a reasonable 

amount to be determined upon proof thereof." 

In a separate order, filed February 2, 1981, the District 

Court dismissed with prejudice Teresa's claim for a prorated 

or daily amount of child support for those portions of June 

and August immediately preceeding and following Charles' 

summer visitations with 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 hearing was held on July 22, 1981, to determine the 

costs and attorney's fees to which Teresa was entitled. The 

District Court concluded that her necessary and reasonable 
attorney'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 evidence was sufficient to support the 

District Court's order finding Charles responsible for 

delinquent child support, requiring him to pay increased 

child support with 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' inconsistent method of paying his 

monthly support obligations makes clarity difficult. The 

most straightforward account of his past payments appears 

in the transcript of the hearing where, after an explanation 

by Charles' attorney, the following exchange occurred: 

"THE COURT: I would conclude from that that 

wherever the burden was in the first place, 

they've made a prima facie case of paying. 

Have you got anything to rebut it? 

" [TERESA'S ATTORNEY] : Other than the fact 

that we don't have the check, no. 

"THE COURT: Okay. Very well. Then it is 

settled as a matter of fact that the respondent 

[Charles] here is current? 

"[CHARLES' ATTORNEY]: I believe it is, your 

Honor. 

" [TERESA' S ATTORNEY] : (Nodded head. ) " 
Teresa contends that there was ccnfusicn at the hearing in 

regard to Charles' payment, or nonpayment, of his obligation 

for September 1978, and September 1979. The District Court 

apparently agreed with her because after the hearing it 

ruled that Charles owed back child support for the month 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 we must reject as clearly erroneous the 

District Court's finding that Charles owes back child support 

for the month of September 1978. Rule 52(a), M.E.Civ.P. 

The second element of issue number one is the increase 

in monthly child support payments from $125 per month to 

$175 with an automatic five percent annual increase. Charles 

contends that the findings of the District Court are not 

sufficient to justify the increase in support, and are not 

supported by substantial credible evidence. 

Section 40-4-208 (2) (b) , MCA, provides: 

"Whenever the decree proposed for modification 

contains provisions relating to maintenance or 

support, modification . . . may only be made: 

(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 District Court'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 findings based thereon did the 

District Court adhere to the standards outlined in section 

40-4-208(2)(b), MCA, in making its judgment? 

We hold that there is sufficient evidence in the record 

to sustain the findings of the District Court--that is, they 
are not clearly erroneous. Furthermore, we agree with the 

District Court's application 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 supported by Teresa's 

testimony. For example, she testified that shortly after 

the divorce her monthly food budget was approximately $60, 

for mother 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 associated with providing a 

home for the child. This evidence provides sufficient 

support for the District Court's finding. 

Charles also disputes the District Court's finding that 

the costs of supporting the child now amount to a minimum of 

$350 per month, of which Teresa is paying almost two-thirds. 

Charles claims that according to his calculations, which are 

based upon an expense statement submitted by Teresa, the 

monthly cost of supporting the child is $187.15. his 

figure, however, does not include certain expenses which are 

incurred jointly by mother and son. There is no specific 

item of evidence which, considered in isolation, proves that 

the cost of supporting the child is exactly $350 a month or 

that Teresa is currently paying two-thirds of that amount. 

There is, however, sufficient evidence in the record to 
sustain the finding of the District Court. 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 income which 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 friends with 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, that he has done so in the past 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 support payments. 

We find support for the findings in the transcript of the 

hearing held January 19, 1981. At the hearing, Charles' 

attorney was 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, that he had no desire to undertake such an 

accounting. In response to a motion filed by Teresa, her 

claim and Charles' counterclaim were dismissed with 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 is merely 
a 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 is whether Charles is obligated to pay 

Teresa's attorney's fees, and if so, in what amount. 

The District Court's order of May 19, 1981, provided 

attorney's fees to Teresa "in a 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 yet made 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 it would 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 otherwise provided for in Rule 1, M.R.App.Civ.P. 

The findings which determined the amount of attorney's fees 

were the District Court's findings of October 6, 1981, from 

which Charles properly 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 from which 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 is proper 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: 

"'The authorities 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 rule has been laid down: "The circumstances 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 in which the 

services were 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 profession 
of the attorneys . . . The result secured by 

the services of the attorney may be considered 

as an important element in determining their 

value [citing Forrester & 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 

resources of both parties, may order a party 

to pay a reasonable amount for the cost to the 

other party of maintaining 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 commencement of 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 

can be 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 financial needs of the parties and the 

reasonableness of 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 findings are supported by the evidence from the two 

hearings. The relative financial positions of the two 

parties was thoroughly presented in the first hearing. 

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 Court was 

apprised of the financial resources of both parties and that 
these resources were 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. In determining fees, the District Court is not required 

to dissect the anatomy of the lawsuit to find a bone here, 

sortie fat there and solid meat elsewhere. Unless there is an 

abuse of discretion we 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's proposed findings of fact and conclusions 

of law. 

We have discussed this issue many 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. - , 631 P.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 District Court in the 

present case are not clearly erroneous. Furthermore, the 

District Court'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 support payments. 
Justice 

We Concur- 

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