NO. 93-595 IN THE SUPREME COURT OF THE STATE OF MONTANA 1994



### IN RE THE MARRIAGE OF BARBARA 

### L. BERGER, Petitioner and Respondent, and DARRELL 

### L. BERGER, Respondent and Appellant.

APPEAL FROM: District Court of the Eighteenth Judicial District, In and for the County of Gallatin, The Honorable Frank M. Davis, Judge presiding.

COUNSEL OF RECORD: For Appellant: Darrell L. Berger, Pro Se, Bozeman, Montana
For Respondent: Kent M. Kasting; Kommers, Kasting & Roth, Bozeman, Montana

Submitted on Briefs: February 10, 1994 Decided: March 22, 1994 Filed:

### Justice John Conway Harrison delivered the Opinion of the Court.

This is an appeal from an order of the Eighteenth Judicial District Court, Gallatin County, denying appellant Darrell 

### L. Berger's (Darrell) motion tomodify visitation and child support. Barbara L. 

### Bergerrs (Barbara)request for attorney's fees was also denied. Darrell appeals. We affirm. Darrell and Barbara divorced in April 1987. 

### They have three children: Matthew, 9; 

### Jennifer; 12; and Jamie, 15. The court awarded joint custody of the children,with Barbara as theprimary physical custodian. The record generated since the couple's separation issubstantial. Forexample, a full evidentiaryhearing
was held on December 17, 1991, to address custody, visitation, child support arrearage and contempt. On August 24, 

### 1993, Darrell filed a "Motion to Modify Visitation and Child Support," which was essentially an effort to modify custody. Darrell requested joint custody with equally shared time and complete elimination of his child support obligation. However, these issues had been settled in prior litigation. In the motion, unaccompanied by affidavits, Darrell claimed that the childrenwould like to spend equal timewith both parents and Jamie would like to choose the parent with whom she wished to reside--namely Darrell. Barbara moved todismiss Darrell's motion on thegrounds that it failed to allege any material change in circumstances which would warrant a custody modification. She also sought attorney'sfees

# . On October 5, 1993, the District Court denied Darrell's motion, finding that it was insufficient under the modification criteria set forth in 

### 5 40-4-219,MCA. The court denied Barbara's request for attorney's fees,noting that if Darrellhad notbrought the motion pro se and in good faith, then an award of attorney's fees to Barbara might have been justified. Darrell appeals. We affirm. The sole issuebefore thisCourt iswhether the DistrictCourt erred by denying Darrell's motion to modify visitation and child support. Inhismotion of August 24, 1993, Darrell attempted tomodify primary physical custody of Jamie. Because Darrell failed to present any affidavits setting forth facts in support of his request, as required by 9 40-4-220, MCA, his motion was correctly denied. We need not address the District Court's denial of Barbara's request for attorney's fees because Barbara did not file a crossappeal. Accordingly, we are without jurisdiction to rule on the merits of this issue. SeeRule 14,M.R.App.P. ;seealsoMydlarz

### v. Palmer/Duncan Const. Co. (1984), 209 Mont. 325, 334, 682P.zd 695, 700 (citationsomitted). Affinned. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1988 Internal Operating Rules, this decision shall not be cited as precedent and shallbe published by its filingas

### apublic documentwith the Clerk of the Supreme Court and by a report of its result toMontana Law Week, StateReporter and WestPublishing Company.

We concur: 

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