No. 33-464 

IN THE SUPREME COURT OF THE STATE OF NONTANA 

1984 

IN RE THE blARRIAGE OF 

PATRICIA APJN PICKERING, f /k/a 

PATRICIA AIJN SCHELL , 

Petitioner and Appellant, 

and! 

JILWLIE ROGER SCHELL, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable William J. Speare, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant r 

Larry G. Grubbs, Billings, Montana 

For Respondent: 

Ralph Herriott, Billings, Montana 

Submitted on Briefs: January 25, 19S4 

Decided: April 5, 1384 

Filed: APR 5. {984 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

Appellant brings this appeal from an order dated 

August 5, 1983, made by the Thirteenth Judicial District 

Court, Yellowstone County, dismissing a petition for 

modification of decree and ordering the parties to bear 

their own costs. 

The parties dissolved their marriage by decree on 

August 16, 1979, in the state of Wyoming. That decree 

granted custody of the parties' two children to respondent. 

On August 7, 1981, the Thirteenth Judicial District court 

entered an order modifying said decree pursuant to a 

stipulation by the parties. That modification granted 

custody to appellant, provided no child support payments and 

set forth visitation rights of respondent. 

Appellant moved to Denver, Colorado with her new 

husband. Apparently problems arose between the parties 

regarding visitation and comments made to the children 

regarding the lack of virtues of the other party. In any 

event, a bitter dispute arose over the visitation rights of 

respondent. 

On April 25, 1983, appellant filed a petition for 

modification of decree. In late June, 1983, respondent 

attempted to enforce his visitation rights for the fourth of 

July holiday. The court held a hearing on June 29, 1983, 

regarding the enforcement of the visitation rights of 

respondent. Following the hearing the court ordered the 

enforcement of respondent's visitation rights and in essence 

ordered the parties to be reasonable and civil in the 

matter. The court also set a hearing date for the petition 
to modify the decree. 

The respondent countered appellant's petition by 

requesting custody of the children and requested an attorney 

and psychiatric evaluation for the children. Following a 

stipulation continuance for the hearing the court entered an 

opinion and order dated August 5, 1983. Said order 

dismissed all pending action before the court and provided 

that the parties bear their own costs. Appellant brings 

this appeal from that order. 

Appellant contends the court abused its discretion by 

dismissing the petition for modification of decree. Also 

that the court erred in ordering that the parties bear their 

own costs without making a specific finding to that effect. 

We stated in Overton v. Overton (Mont. 1983), 674 P.2d 

1089, 40 St.Rep. 2047 a long standing standard of review: 

"'We will not substitute our judgment for 

that of the trier of fact, but rather 

will only consider whe ther substantial 

credible evidence supports the findings 

and conclusions. These findings will not 

be overturned by this Court unless there 

is a clear preponderance of the evidence 

against them. We will view the evidence 

in a light most favorable to the 

prevailing party, recognizing that 

substantial evidence may be weak or 

conflicting with other evidence, yet 

still support the findings. Nicolai v. 

Nico1a.i (Mont. 1981), 631 P.2d 300, 303, 

38 St.Rep. 1100, 1103. Cameron v. 

Cameron (1978), 179 Mont. 219, 587 P.2d 

939. "' 

In the instant case the court set forth in its 

opinion and order the facts and circumstances that led up to 

the dismissal of the action. While the order is limited as 

to the reasoning of the court, we find the court did not 

abuse its discretion by denying appellant's petition. 

Appellant argues that the court erred by not 
explaining why it denied attorney fees. Appellant cites 

Kronovich v. Kronovich (1978), 179 Mont. 335, 588 P.2d 510. 

In both of these cases, this Court stated that the district 

court erred by not making a finding and conclusion to 

support its judgment denying attorney fees. In both of 

these cases, the court made either a modification or a 

judgment in a dissolution proceeding. In the instant case 

the court merely dismissed the petition and motions made by 

both appellant and respondent. Because all matters were 

dismissed it appears self evident that the parties should 

bear their own costs. We do express some displeasure in the 

trial court's insufficient findings in this area but fail to 

find this as reversible error. 

Appellant objects to the court's failure to provide 

her a hearing to present her evidence in favor of her 

petition. The record shows a hearing on a related matter 

approximately one month prior to the district court's 

action. That hearing focused on the enforcement of the 

visitation provision of the parties' modified decree. Only 

the respondent appeared at that hearing. The court then 

entered a judgment enforcing the visitation rights and 

ordering in essence that the parties "(1) refrain from 

making derogatory remarks about each other to the children; 

(2) that arrangements relative to the transfer of physical 

custody of the children be accomplished by the parties and 

not the children; and (3) cease forcing the children to make 

decisions relative to their physical custody." Such order 

addressed the concern of appellant and rendered a 

modification of the visitation. 
We hereby affirm the District Court. 

We concur: 

%&3,iii,&, 

Chief Justice