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.Judicia1 District, 

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 

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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 Cause No. 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 to modify 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' request to modify the existing visitation plans? 

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 on April 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 summer 
visitation, 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 Karleen primary physical custody, and allowed Stanley 

reasonable visitation. Pursuant to the District Court order, 

Stanley's visitation 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 

children and the Overman children began residing with their mothers 

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: one weekend the Overman children would 

go to the Boyer home, and the next weekend all four children would 

go back to the Overman home. 
On May 8, 1992, five years after the existing visitation plans 

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 

problems with the Overman 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 in both cases at a consolidated hearing on July 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 

purpose behind the proposed plan was to equalize the 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 summer visitation. At the hearing, 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's best interests to modify the existing visitation plans. 

They asserted that the current schedules, which had been in effect 

for five years, worked well because they were 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's motion to modify visitation. The court adopted 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 

demonstrate that modification of the existing visitation plans was 

in the children's best interests. The court found that adoption of 

the proposed visitation schedule would require Tom to relinquish 

time with his children, and that this would be detrimental to Tom's 

children. The court also found that Tom and Karleen had 

accommodated Gail and Stanley's requests to alter the visitation 

plans in the past and a new visitation schedule would not make the 

parties cooperate any more with one another than they have in the 

past. The court determined that the visitation 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 for modification. The 

court based its decision upon a clause in Tom and Gail's separation 

agreement. The court also indicated that it had the power 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 discretion when it denied their motion to 

modify and equalize the visitation 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' proposal would have forced Tom to give up time with his 

children. Second, it would have altered a plan for upcoming 

Christmas visitation that was previously agreed upon among the 

parties. Third, it was more confusing than the existing plan, and 

therefore, it would have been detrimental to the children. 
Finally, it was 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 is whether 

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. In rehiammageof 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. In re 

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), 211 Mont. 320, 

683 p.2d 1330. in tnis case, tne District court determined 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 their motion 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 time with his children 
would serve the Boyer children's best interests. Accordingly, we 

hold that the court did not abuse its discretion when it denied 

appellants1 request to modify the existing visitation plans. 

I I 

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's verbatim adoption ofthe prevailing party's proposed 

findings, conclusions, and judgment is not prohibited. Wolfe v. Webb 

(l992), 251 Mont. 217, 229, 824 P.2d 240, 247. It[W]e have 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 respondentst proposed findings, conclusions, and 

order. The findings and conclusions are supported by 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 any provisions contained herein, the Court, as 
a cost of suit, shall award a reasonable attorney 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 re Marnkzge of BoLftad (1983), 203 Mont. 

131, 660 P.2d 95. Pursuant to Tom and 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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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: 
October 21, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Mark Bauer 

Attorney at Law 

P.O. Box 1423 

Great Falls, MT 59401 

Daniel L. Falcon 

Matteucci, Falcon, Squires & Lester 

P.O. Box 149 

Great Falls, MT 59403-0149 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA