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 to modify 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 the primary 

physical custodian. The record generated since the couple's 

separation is substantial. For example, a full evidentiary hearing 

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 children would like to spend equal time with both 

parents and Jamie would like to choose the parent with whom she 

wished to reside--namely Darrell. 

Barbara moved to dismiss Darrell's motion on the grounds that 

it failed to allege any material change in circumstances which 

would warrant a custody modification. She also sought attorney's 
fees . 

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 Darrell had not brought 

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 issue before this Court is whether the District Court 

erred by denying Darrell's motion to modify visitation and child 

support. 

In his motion of August 24, 1993, Darrell attempted to modify 

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. See Rule 14, M.R.App.P. ; see also Mydlarz v. 

Palmer/Duncan Const. Co. (1984), 209 Mont. 325, 334, 682 P.zd 695, 

700 (citations omitted). 

Af f inned. 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1988 Internal Operating Rules, this decision shall not be cited as 

precedent and shall be published by its filing as a public document 
with the Clerk of the Supreme Court and by a report of its result 

to Montana Law Week, State Reporter and West Publishing Company. 

We concur: /-