No. 86-64 

IN THE SUPREYE COURT OF THE STATF OF MObTTANA 

1986 

IN RE THE MARRIAGE OF 

RAE MAFTF KUZARA, 

Petitioner and Respondent, 

and 

ZOSEPH KIM KUZARA, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Fourteenth Judicial District, 

In and for the County of Musselshell, 

The Honorable Zoseph B. Gary, Judge presiding. 

COT.JNSET_. OF RECORD : 

For Appellant: 

L?oseph K. Kuzara, pro se, Roundup, Montana 

For Respondent: 

Ralph I>. Herriott, Rillings, Montana 

Submitted on Briefs: August 28, 1986 

Decided: November 20, 1986 

Clerk 
Mr. Justice William E. Hunt, Sr., delivered the Opinion of 

the Court. 

Appellant Joseph Kim Kuzara appeals from a final award 

of joint custody and denial of costs on appeal from the 

Musselshell County District Court after a hearing on remand 

from this Court for sufficient findings of fact relating to 

the best interests of the Kuzara children. 

We affirm the District Court in part but remand the case 

with instructions to amend the decree to include reasons for 

not ordering child support and to include the other 

applicable portions of the original dissolution decree that 

had been omitted from the final decree. 

The issues on appeal are: 

1. Did the District Court err j.n denying appellant's 

motion for costs on the original appeal? 

2. Did the District Court err after ordering home 

investigations and reports by not making them available to 

the parties for review? 

3. Do the District Court's findings support an award of 

joint custody? 

4. Did the District Court err in failing to state 

reasons for not ordering child support and a joint cust.ody 

implementation plan? 

The parties were married on June 22, 1968, and two 

children were born: Joseph Ray Kuzara on November 10, 1970 

and David Michael Kuzara on October 14, 1974. The 

dissolution was jnitiated by the mother on February 17, 1983, 

and the matter was heard on July 72, 1983. A decree of 

dissolution signed on Auqust 8, 1983, provided for ioi-nt 
custody of the parties1 minor children with physical custody 

to remain in the father. 

In addition, the original decree provided that the minor 

children spend alternating weekends and Easter, Labor Day, 

Thanksgiving and Christmas with respondent. Thirty days each 

summer vacation were to be spent with the respondent mother 

as well. 

On September 7, 1983, the father filed a notice of 

appeal of the dissolution decree. On October 5, 1983, a show 

cause order was issued by the District Court, upon motion of 

the mother, seeking termination of the joint custody 

provisions of the decree and that the father be held i.r; 

contempt of court for failing to abide by the decree. A 

hearing on the order to show cause was held on November 4, 

1983, at which time the father was found to be in contempt. 

Because of his objections to the termination of joint 

custody, no consideration of the requested change of custody 

was made at that time. 

Thereafter the father applied for a writ of review 

before this Court and that action was then consolidated with 

the appeal of the decree of dissolution by this Court. The 

mother did not appear on the original appeals on these 

matters. In November, 1983, the parties1 children, through 

their attorney, moved this Court for permission to appear as 

amici curiae and a brief was then filed on their behalf. 

In our June 21, 1984 order, this Court denied the 

application for appellant's writ of review of his contempt 

proceeding. In Re Mar. of Kuzara (Mont. 1984), 682 P.2d 

1371, 41 St.Rep. 1201. We vacated the dissolution decree and 

remanded with directions for a hearing to determtne 
sufficient findings regarding the children's desires as to 

custody and best interests of the Kuzara children. 

In August, 1985, the District Court held a hearing 

pursuant to the above order. The Kuzara children were 

interviewed in chambers. Both children said they would 

"probably prefer" to stay with their father, the appellant, 

and work out visitation with their mother. They liked livina 

in Roundup since they grew up there and all their friends and 

sports activities were there. Thus they did not wish to move 

to Billings with their mother. 

On October 23, 1985, the District Court found it to be 

in the children's interest to grant joint custody once again. 

The findings stated that the home investigation reports for 

both parents were evaluated by the District Court. Appellant 

was awarded physical custody and a flexible visitat.ion 

schedule was delineated for the respondent. 

The court also found that based on 5 25-10-104, MCA and 

State ex rel. Nesbitt v. District Court (1946), 119 Mont. 

138, 173 P.2d 412, no significant legal issues were reversed 

in favor of either party and the parties were ordered to pay 

their own costs on the original appeal. Both parties were 

ordered to share the cost of counsel for the minor children. 

Appell.antls first contention is that the District Court 

abused its discretion when it denied his motion for costs on 

the original appeal because costs should automatically have 

been awarded to him under Rule 33, I4.R.App.Civ.P. 

Rule 33, M.R.App.Civ.P. reads in part as follows: 

(d) Costs in original proceedings . . . and if not 

otherwise provided by the court in its decision, 

will be awarded to the successful party against the 

ether party.. . . 
Appellant contends he was the successful party on the 

original appeal. The District Court disagreed with this 

contention and held that the slight modification in the 

previous decree did not make appellant the successful party 

on the appeal. 

The interpretation of the term "successful party" was 

discussed by this Court in State ex rel. Nesbitt v. District 

Court, supra. In that case, defendant appealed an award for 

the plaintiff and this Court decreased the amount that had 

originally been awarded to the plaintiff. This Court found 

that if appellant was successful, costs could be recovered 

from the other party pursuant to the statute. We held that 

while the award was slightly decreased this could not be 

considered a success for the appellant. No legal questions 

were reversed. 

In this case, there were minor changes made in the grant 

of custody and no legal questions were reversed. Nesbitt is 

persuasive here. We affirm the decision to hold each party 

responsible for its own costs on the original appeal and that 

the costs of the children's lawyer be equally divided between 

the parties. 

Appellant next contends that the District Court erred in 

not making the home investigation reports available to the 

parties or providing an opportunity for cross-examination on 

them. 

The hearing on remand was held in August, 1985. At the 

hearing, motions were made and granted for a home 

investigation and report on each party's home. The reports 

were received by the District Court at the end of September 

and early October. Neither party received a copy of the 

reports. 
The reports indicated that both homes appeared suitable 

for the children and that the children's custodial desires 

should be taken into account in reaching a decision. 

Section 40-4-215(3), MCA, says: 

(3) The court shall mail the investigator's report 

to counsel and to any party not represented by 

counsel at least 10 days prior to the hearing. The 

investigator shall make available to counsel and to 

any party not represented by counsel the 

investigator's file of underlying data and reports, 

complete texts of diagnostic reports made to the 

investigator pursuant to the provisions of 

subsection (2), and the names and addresses of all 

persons whom the investigator has consulted. Any 

party to the proceeding may call the investigator 

and any person whom he has consulted for 

cross-examination. A party may not waive his right 

of cross-examination prior to the hearing. 

The District Court did err in not forwarding copies of 

the reports to counsel upon their receipt. Copies should 

have been mailed for review by counsel pursuant to § 

40-4-215, MCA. However, a review of the record indicates 

that. the reports provided no additional information or 

insight for the District Court to rely on in making a custody 

determination. Therefore, in the specific limited. 

circumstances or' this case, we hold that such error was 

harmless. 

Appellant's third contention is that the Distrj ct 

Court's findings do not support an award of joint custody. 

In particular, he claims that the findings are not specifi-c 

with regard to the children's wishes, d.o not reflect the 

desires of the children, and do not contain any reasons why 

the desires of the children were not followed. 

We do not agree. 

The Kuzara children were interviewed in chambers by the 

trial judge at the remand hearing and their desires were 

ascertained. They indicated they wanted to reside in 
finding will not be disturbed and appellant must facilitate 

the decree as ordered. 

The next contention raised by appellant is that the 

District Court erred in not ordering a custody implementation 

plan. This is not supported by the evidence. Custody 

proposals were presented and the District Court chose an 

arrangement which was flexible enough to incorporate the 

concerns of the children and the parties. There was no error 

in this regard. 

Finally, appellant claims the District Court erred in 

failing to state reasons for not ordering respondent to pay 

child support. In October, 1983, S 40-4-2@4(2), MCA, was 

enacted. It states that: 

(2) If the court does not order a parent owing a 

duty of support to a child to pay any amount for 

the child's support, the court shall state the 

reasons for not ordering child support. 

Respondent argues that child support provisions were covered 

by the August 8, 1983 decree and these original provisions 

remained in effect. 

On June 21, 1984, this Court vacated the original decree 

and remanded the case. Thus the original decree was no 

longer in effect. Section 40-4-204(2), MCA, was effective 

law at the time this second decree was signed. The District 

Court did err by omitting the reasons for not ordering child 

support and by not including the rest of the applicable terms 

from the original decree in the final decree. This case is 

therefore remanded to the District Court with instructions to 

amend the October 23, 1985 decree to include reasons for not 

ordering child support and to include the other applicable 

port-ions of the dissolution decree that were included in the 
original decree but omitted in the final decree. The award 

of joint custody and costs on ap,&al are fully affirmed. 

We Concur: A' 

L Justices 
Roundup, Montana, with their father; to remain in school in 

Roundup; and to work out a suitable visitation arrangement 

with their mother. The youngest son indicated he had not 

liked the past joint custody arrangements but did want to 

continue seeing his mother. The boys expressed concern that 

they be able to continue in sports and that weekend 

visitation not interfere with those events. They also 

indicated some problems gettinq alonq with their new 

stepfather in Billings. 

Physical custody was granted to the father. The 

children were allowed to remain in the Roundup school system. 

A flexible visitation plan was provided so that visitation 

with their mother could occur six weekends each quarter. 

Those weekends were to be worked out between the children and 

their mother without interference from their father. 

Appellant's claim that the judge did not properly 

consider the children's desires is meritless. A judge need 

not go along with a child's simple statement that he does not 

like joint custody. A review of the findings of fact and 

conclusions of law reveals that the District Court considered 

the desires of the children as instructed by this Court. It 

incorporated those desires into the decree in a manner it 

deemed to be in the children's best interest. It appears 

that appellant would only be satisfied with an extremely 

limited grant of visitation to respondent. Whether that 

grant of custody was sole custody or joint custody, S 

40-4-223, MCA, does not allow appellant to deny respondent 

the opportunity for frequent and continuing contacts with her 

children. Here joint custody was found by the District Court 

to be in the best interests of the Kuzara children. That