No. 92-541 and 92-542 IN THE SUPREME COURT OF THE STATE OF MONTANA 1993

IN RE THE MARRIAGE OF GAIL L. BOYER, Petitioner and Appellant, and TIiOMAS N. BOYER, Respondent and Respondent. and IN RE THE MARRIAGE OF STANLEY SCOTT OVERMAN, Co-Petitioner and Appellant, and KARLEEN GRANER OVERMAN, Co-Petitioner and Respondent.

APPEAL FROM: District Court of the Eighth.Judicia1District, In and for the County of Cascade, The Honorable Joel G. Roth, Judge presiding.

COUNSEL OF RECORD: For Appellants: Mark Bauer, Attorney at Law, Great Falls, Montana For Respondents: Daniel L. Falcon, Matteucci, Falcon, Squires & Lester, Great Falls, Montana

1 4 b2* ff >.: Submitted on Briefs: April 30, 1993 Decided: October 21, 1993 Filed:Justice Terry N. Trieweiler delivered the opinion of the Court. Gail Boyer, petitioner in Cascade County CauseNo. CDR 87-264, and Stanley Overman, petitioner in Cascade County Cause NO, CDR 87-455,moved the District Court for the Eighth Judicial District in Cascade County tomodify visitation in their respective dissolution proceedings. The motions were first consolidated and then denied by the District Court. Petitioners appeal the denial of their motions. We affirm the District Court. There are three issues on appeal. 1. Did the District Court abuse its discretion when it denied appellants' requesttomodify the existing visitationplans? 2. Did the District Court err when it adopted respondents' proposed findings of fact, conclusions of law, and order? 3. Did the District Court err when it awarded attorney fees to respondents? Gail Boyer and Thomas Boyer were married on August 7, 1981. They had two children together during their marriage. Their marriage was dissolved onApril 20, 1988. In the final dissolution decree, the District Court granted joint custody of the Boyer children to Gail and Tom. Gail was awarded primary physical custody and Tom was allowed reasonable visitation at the times specified in the parties' separation agreement. According to the District Court order,Tom's visitation with his children included six weeks in the summer, alternating weekends, and alternating legal holidays. During Tom's summervisitation, Gail was allowed to visit with the children on two weekends. Karleen Overman and Stanley Overman were married on September 19, 1982. Karleen and Stanley also had two children during their marriage. Their marriage was dissolved on September 16, 1987. In the final dissolution decree, the District Court awarded joint custody of the Overman children to Karleen and Stanley,gave Karleenprimary physical custody,and allowed Stanley reasonable visitation. Pursuant to the District Court order, Stanley'svisitation included, but was not limited to, alternating weekends of each month, alternating Christmas and Thanksgiving holidays, and one month per summer (if both Karleen and Stanley reside within the same state) or the entire summer (if Stanley resides within a separate state or is stationed overseas). After entry of the final dissolution decrees in each case, Gail Boyer, now known as Gail Overman, married Stanley Overman. Karleen Overman, now known as Karleen Boyer, married Tom Boyer. Pursuant to the dissolution decrees in each case, the Boyer childrenand the Overman childrenbegan residingwith theirmothers during the week and visited with their fathers at the times specified in the respective District Court orders. Eventually, the parties worked out an arrangement whereby the four children would spend the weekends together: oneweekend theOverman childrenwould go to the Boyer home, and the next weekend all four childrenwould go back to the Overman home.OnMay 8, 1992, five yearsafter theexistingvisitationplans had been implemented, Stanley and Gail each filed a motion and a plan to modify visitation between the children of each family and their fathers to provide similar and equal visitation. In supporting affidavits, Stanley and Gail contended that the variations in the fathers* visitation schedules were causing problemswith theOverman children. Specifically,Stanley and Gail

were concerned about the different summer visitation schedules. They asserted that the Overman children could not understand why they were not allowed to see their father as much as the Boyer children were allowed to see theirs. The District Court heard arguments on the motions to modify visitation inboth cases at a consolidatedhearing onJuly 7, 1992. At the hearing, Stanley and Gail proposed a modified three-year visitation plan that differed from the plan that they suggested when they filed their motion. Stanley testified that the primary purposebehind theproposed planwas to equalizethe amount of time the children visited with their fathers, and to allow Stanley to have time with his children independent from the Boyer children. The proposed plan provided that each father would have four weeks of summervisitation. At thehearing, Stanley admitted that the proposed plan would reduce the six weeks of visitation time that Tom was entitled to under his existing visitation schedule. Tom and Karleen did not oppose equal visitation but objected to the proposed plan because it required Tom to relinquish visitation time.Tom and Karleen testified that it would not be in the children'sbest interests tomodify the existing visitationplans. They asserted that the current schedules, which had been in effect for fiveyears,worked well because theywere stable plans and they were understandable to the children. Tom and Karleen testified, and Stanley and Gail conceded, that the parties have accommodated in the past each other's requests to alter the existing summer visitation schedules to meet their respective needs. After the hearing, the District Court denied Stanley and Gail'smotion tomodify visitation. The courtadopted verbatim Tom and Karleen's proposed findings of fact, conclusions of law, and order, and made the findings and conclusions applicable to both

cases. In its order, the court found that Stanley and Gail failed to demonstratethatmodification of the existingvisitationplanswas in the children's best interests. The court found that adoption of the proposed visitation schedule would require Tom to relinquish timewithhis children,and that thiswouldbe detrimentaltoTom's children. The court also found that Tom and Karleen had accommodated Gail and Stanley's requests to alter the visitation plans in thepast and a new visitation schedule would not make the parties cooperate any more with one another than they have in the past. The courtdetermined that thevisitation plans in existence

were workable and reasonable, even though there were minor differences.Finally, the court awarded attorney fees to Tom and Karleen for successfully responding to the motions formodification. The courtbased itsdecisionupon a clause inTom and Gail's separation agreement. The court also indicatedthat it had thepower to award attorney fees pursuant to SS 40-4-110 and 37-61-421, MCA, 

### ail and Stanley filed a motion to reconsider the visitation issue. When the District Court failed to rule on their motion, Stanley and Gail filed a notice of appeal in both cases. I Did the District Court abuse its discretion when it denied appellants' request to modify the existing visitation plans? On appeal, Stanley and Gail (appellants) assert that the District Court abused its discretionwhen itdenied theirmotion to modify and equalize thevisitation schedules. They contend that it is in the best interests of all four children involved to provide

a similar and equal visitation schedule between the fathers and their children. Appellants assert that Tom and Karleen (respondents) do not object to equalized visitation. Respondents assert that the appellants' proposed visitation plan is unacceptable for several reasons. First, they contend that appellants' proposalwould have forcedTom to giveup timewith his children. Second, it would have altered a plan for upcoming Christmas visitation that was previously agreed upon among the parties. Third, itwas more confusing than the existing plan, and therefore, it would have been detrimental to the children.Finally, itwas not in the best interests of the children to alter

a stable plan that has worked well for five years. The standard of review for custody and visitation iswhether substantial credible evidence supports the district court's judgment. InreMarnmageojNaslz (1992), 254 Mont, 231, 234, 836 P.2d 598, 600. The findings will be sustained unless they are clearly

erroneous. Inrehiammageof Susetz (1990j, 242 Mont. 10, 13-14, 788 P.2d 332, 334. We will overturn a trial court's custody decision only when there is a clear showing of an abuse of discretion. 

### Inre hfarrkgeofRolfe (1985), 216 Mont. 39, 44, 699 P.2d 79, 82. Section 40-4-217(3), MCA, provides that a court may modify a visitation order "whenever modification would serve the best interest of the child 

# . .. ." Strongv.pveaver (l984), 211Mont. 320,

683p.2d 1330. in tnis case, tneDistrict courtdetermined that it

was not in the best interests of the children to modify the existing visitation plans between the fathers and their children. Our review of the record reveals that there is substantial credible evidence to support the District Court's findings and conclusions. The District Court established the visitation schedules in the original decrees based on the children's best interests. Appellants admitted at the hearing on theirmotion to modify that their proposed plan to equalize visitation would require Tom to relinquish summer visitation time that he has had with his children for five years. The record reveals that appellants failed to show how reducing Tom's timewithhis childrenwould serve the Boyer children's best interests. Accordingly, we hold that the court did not abuse its discretion when it denied appellants1request to modify the existing visitation plans. II Did the District Court err when it adopted respondents1 proposed findings of fact, conclusions of law, and order? Appellants assert that the District Court erred when it adopted respondentst proposed findings, conclusions, and order verbatim. They assert that the adopted findings and conclusions are unsupported by the evidence. A court'sverbatim adoptionoftheprevailingparty's proposed findings, conclusions,and judgment is not prohibited. Wolfev. Webb (l992), 251Mont. 217, 229, 824 P.2d 240, 247. It[W]ehave approved the verbatim adoption of findings and conclusions where they are comprehensive and detailed and supported by the evidence." Wove, 824 P.2d at 247. Upon review of the record in this case, and the trial court's findings and conclusions,we hold that the District Court did not

err in adopting respondentstproposed findings, conclusions, and order. The findingsand conclusionsare supportedby the evidence. I11 Did the District Court err when it awarded attorney fees to respondents? The separation agreement between Tom and Gail provided: Should any action be commenced to enforce, modify or interpret anyprovisions contained herein, the Court, asa cost of suit, shall award a reasonableattorney fee to the successful party. We conclude that the attorney fee provision in Tom and Gail's separation agreement is binding. The provision is clear that, should any action be commenced to modify any provision in the separation agreement, the prevailing party shall receive attorney fees. Respondents are the successful parties in this case, and therefore, they are entitled to attorney fees. Both parties request attorney fees on appeal. This Court has awarded attorney fees on appeal when the parties' separation agreement provides for such. 

### In

### reMarnkzgeofBoLftad (1983), 203 Mont. 131, 660 P.2d 95. Pursuant to Tomand Gail's separation agreement, the prevailing party is entitled to reasonable attorney fees. Accordingly, since respondents are the successful parties in this



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## --- -,-- ..-L:L,-J L.. 1_1- ..LL =--- 1 2 a, Lury air arnu rsl~r LA~U LU Lra>uuaurr aLCuLury ~rra IIICIULLWU to respond to this appeal. We remand this case to the District Court to determine reasonable costs and attorney fees incurred by respondents on appeal. The judgment of the District Court is affirmed.We concur:October21, 1993 CERTIFICATEOFSERVICE Iherebycertifythatthefollowingorderwas sentby United Statesmail,prepaid, to thefollowing named:

MarkBauer Attorney atLaw P.O. Box 1423 Great Falls,MT 59401 DanielL. Falcon Matteucci, Falcon, Squires&Lester P.O. Box 149 Great Falls,MT 59403-0149

EDSMITH CLERKOFTHE SUPREMECOURT STATEOFMONTANA