No. 86-64 INTHE SUPREYECOURT OF THE STATF OF MObTTANA 1986

INRE THEMARRIAGE OF RAEMAFTF KUZARA, Petitionerand Respondent, and ZOSEPHKIM KUZARA, Respondent and Appellant.

APPEAL FROM: District Court of the Fourteenth Judicial District, Inand for the County ofMusselshell, The Honorable Zoseph B. Gary,Judgepresiding.

COT.JNSET_. OF RECORD:

ForAppellant: L?osephK. Kuzara,pro se,Roundup,Montana

For Respondent: Ralph I>. Herriott,Rillings,Montana

Submitted on Briefs: August 28, 1986 Decided: November 20,1986

ClerkMr. Justice William E. Hunt, Sr., delivered the Opinion of theCourt.

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 thebest interestsof the Kuzara children. We affirm the DistrictCourt inpart 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 issueson 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 theparties for review? 3. Do the DistrictCourt'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 implementationplan? 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 dissolutionwas jnitiatedby themother 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-ntcustody of the parties1minor children with physical custody to remain in the father. In addition,the original decreeprovided 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

aswell. On September 7, 1983, the father filed a notice of appeal of thedissolutiondecree. 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 fatherwas found to be in contempt. Because of his objections to the termination of joint custody, no consideration of the requested change of custody

wasmade at that time. Thereafter the father applied for a writ of review before this Court and that actionwas then consolidated with the appeal of the decree of dissolutionby 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 thedissolution decree and remanded with directions for a hearing to determtnesufficient findings regarding the children's desires as to custody and best interestsof 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, andwork outvisitation with theirmother. They liked livina in Roundup since they grewup there and all their friendsand sports activitieswere there. Thus they did notwish tomove to Billings with theirmother. 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 evaluatedby theDistrictCourt. Appellant

was awarded physical custody and a flexible visitat.ion schedulewas delineated for the respondent. The court also found thatbased 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 issueswere reversed in favor of eitherparty and the partieswere 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.antlsfirst contention is that the DistrictCourt abused its discretionwhen it denied his motion for costs on the original appeal because costs should automatically have been awarded tohim 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, willbe awarded to the successfulparty against the etherparty.. 

# ..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 successfulparty

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,therewereminor changes made in thegrant of custody and no legal questionswere reversed. Nesbitt is persuasive here. We affirm the decision to hold each party responsible for itsown costson the original appeal and that the costsof the children's lawyer be equallydivided between theparties. Appellant next contends that theDistrictCourt 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 inAugust, 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 shouldbe taken into account in reaching a decision. Section 40-4-215(3),MCA, says:

(3) The court shallmail the investigator'sreport to counsel and to any party not represented by counsel at least 10 daysprior to thehearing. The investigator shall make available to counseland to any party not represented by counsel the investigator's file ofunderlying 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 partymay notwaivehis right of cross-examinationprior 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 DistrictCourt to rely on inmaking 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 Distrjct 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.onot reflect the desires of the children, and do not contain any reasonswhy thedesires of the childrenwere not followed. We do not agree. The Kuzara children were interviewed in chambersby the trial judge at the remand hearing and their desires were ascertained. They indicated they wanted to reside infinding will not be disturbed and appellant must facilitate thedecree asordered. The next contention raised by appellant is that the DistrictCourt erred innot 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 childrenand the parties. Therewas 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 fornot ordering child support. Respondent argues that child support provisionswere 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 decreewas signed. The District Court did errby omitting the reasons for not ordering child supportand 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 Courtwith instructionsto amend the October 23, 1985 decree to include reasons for not ordering child support and to include the other applicable port-ionsof the dissolution decree that were included in theoriginal decree but omitted in the final decree. The award of joint custody and costs on ap,&al are fully affirmed.

We Concur: A'

Justices 

# LRoundup, 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 inBillings. 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. Thoseweekendswere tobe worked outbetween 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 thathe does not like joint custody. A review of the findings of fact and conclusions of law reveals that theDistrict 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 frequentand continuing contacts with her children. Here joint custodywas foundby the District Court to be in the best interests of the Kuzara children. That