No. 84-335 IN THE SUPREME COURT OF THE STATE OF MONTANA 1985

IN RE MARRIAGE OF PHILIP J. MILANOVICH, Petitioner and Appellant, and ROSEMARY MILANOVICH

## , Respondent and Respondent.

APPEAL FROM: District Court of the Second JudicialDistrict, In and for the County of Silver Bow, The Honorable Robert Boyd, Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: Hull & Sherlock; JeffreyM. Sherlock,Helena, Montana For Respondent: DeirdreCaughlan,Butte,Montana

Filed: Submitted on Briefs: Nov. 29, 1984 Decided: ~pril 8,1985Mr. Justice Fred J. Weber delivered the Opinion of the Court. Philip J. Milanovich (Philip)appeals from the order of the District Court of Silver Bow County dated June 21, 1984, fixing attorney's fees for Rosemary J. Milanovich (Rosemary) in the sum of $1,727.00 for services rendered prior to the entry of this Court's order of February 16, 1982 and for attorneys' fees of $750.50 for services required following that order. We affirm the awards. The issues presented for revieware: 1. Did the District Court err in its order of June 21, 1984, awarding $1,727.00 for attorneys' fees as originally fixedby the order ofMarch 10, 1982? 2. Did the District Court err in its order of June 21, 1984, fixing $757.50 as attorneys' fees pursuant to the specificord.erof the Supreme Court? The parties came before this Court in Milanovich v. Milanovich (Mont. 1982), 655 P.2d 959, 39 St.Rep. 1554

(MilanovichI)

# . Milanovich I sets out the continuing problems in this divorce proceeding, which was commenced in 1975 and involved the custody of four minor children. In Milanovich I, this Court concluded basically as follows: 1. It could not review the lower court's finding of contempton an appeal. 2. In rendering its decision on visitation rights, the District Court erred in failing to allow Philip to present psychiatric evidencepertaining to Rosemary. 3. The DistrictCourt erred in failing tomake specific findingsas to the children'swishes regarding custody. 4. The District Court erred in failing to appoint an attorney for the children. InMilanovich I,theCourtpointed out tha.tRosemarywas fit to have temporary custody of the children and thatimmediate visitation rights were to he given to her. This Court directed the District Court to fix and order attorneys' fees to be paid by Philip to Rosemary. Feeswere assessed in the amount of $757.50 by the District Court in its order of June 21, 1984. Milanovich v. Milanovich (Mont. 1982), 655 P.2d 963, 39 St.Rep. 2146 (Milanovich11)

## , addressed the petition for writ of review of the contempt order issued by the District Court on February 16, 1982. This Court affirmed that contempt order inMilanovich I1

# . AfterMilanovich Iand Milanovich 11,the District Court conducted ahearing onRosemary's request for a determination of fees. This resulted in the District Court's order dated June 21, 1984, awarding $1,727.00 as attorneys' fees, as originally fixed by a prior order of the District Court, and $757.50 as costs a.nd fees incurred in connection with Rosemary's motion to compel Philip's compliance with the District Court's visitation order. Philip appeals the order awarding fees. I Did the District Court err in its order of June 21, 1984, awarding $1,727 for attorneys' fees ba.sed upon the District Court's order ofMarch 10, 1982? As previously indicated, the award of $1,745was originally made by the DistrictCourt on March 10, 1982,prior to both Milanovich I and Milanovich 11. With a different judge presiding, the District Court issued an order on June 21, 1984, that awarded substantially the same amount for the services in question as had been awarded on March 10, 1982. Philip contends the award was improper because Milanovich I reversed the judgment of theDistrictCourt. The only exception from that reversal was the contempt holding, which isnot a part of Milanovich I. Philip argues that as a result ofMilanovich I,theMarch 10, 1982determinationof feeswas cancelled. That contention disregards Mil.an.ovich11, wherein this Court affirmed the contempt order of the District Court. As

we review the order, dated February 16, 1982, which was affirmed by Milanovich 11,we find the following finding and conclusion: "11. That the Court hereby finds that the Plaintiff's conduct towards the Defendant resulting in the a.ctionnowbefore the Court isvexacious [vexatious], harrassing and 

### unreasons-ble and.the Defendant is entitled to have her reasonable attorney's feespaid by the Plaintiff." That order of the District Court found Philip guilty of contempt, fined him $500, sentenced him to five days in jail with the sentence to be suspended for one year upon compliance with the court's order,and furtherordered a hearing to determine the amount of attorneys' fees towhich Rosemarywas entitled. The February 16, 1982 order primarily addresses the contempt on the part of Philip and the penalties attached as

a result 

### of that contempt. The essential elements of the February 16, 1982 contempt order were affirmed in Milanovich 11. As a result, the award of attorneys' fees by order dated March 10, 1982 was affirmed, even though the amountwas reduced from $1745.00 to $1727.00. We approve and affirm the award of $1,727.00 for attorneys' fees.

Did the District Court err in its order of June 21, 1984, fixing $757.50 as attorneys' fees pursuant to the specific 

### order of the Supreme Court?In substance, Philip contends that a portion of such award is proper, but argues that there was not a sufficient connection between other servicesperformed.and.the motion in question. Philip therefore requestsa reduction in the award

In Talmage v. Gruss (Mont. 19831, 658 P-2d 419, 40 St.Rep. 176,we set forth in detail the rules to be applied in the fixing of attorneys' fee. The following statement from that case is particularly pertinent: "The amount fixed as attorney fees is largely discretionary with the District Court, and wewill not disturb its judgment in the absence of an abuse of that discretion." 658 P.2d at 420, 40 St.Rep. at 177. The record contains substantial evidence to support the conclusions of the District Court. We find no abuse of discretion. The award of $757.50 is affirmed.

Defendant Rosemary requests costs be assessed for a frivol-ous appeal. In view of the confusing state of the record and the possibility of good faithmisunderstanding on thepart of counsel,wewill not assess such costs. However, we do point out to counsel that this is the third time in which this bitterly-fought matter has been before us. We will carefully consider the propriety of further proceedings before this Court. 

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Justice We concur: rn