No. 86-239 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

IN RE THE MARRIAGE OF 

J. J. C., 

Petitioner and Appellant, 

and 

P. a. C. 

Respondent and Appellee. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

Honorable Thomas C. Honzel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Cotter & Cotter, Michael W. Cotter, Great Falls, Montana 

Richard Lynn Ducote, New Orleans, ~ouisiana. 

For Respondent : 

Ryan & McAllister, Robert W. Heilig, ~illings, Montana 

Crowley, Haughey, Hanson, Toole & Dietrich; Bruce R. 

Toole, Billings, Montana 

Moses Law Firm, Charles T. Moses, Billings, Montana. 

Paula Jampsa, Great Falls, Montana 

Filed: 

Submitted on Briefs: January 29, 1987 

Decided: June 25, 1987 

JUN 2 5 1987 

*, 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

This is an appeal brought by both parties from a marital 

dissolution order of the Eighth Judicial District, Cascade 

County, awarding wife custody of the parties' only child, 

child support and a $15,000 property settlement, while 

denying her request for attorneys' fees. We affirm. 

J.J.C. and P.R.C. were married in October, 1979. 

However, within a very short time, problems arose and by 

July, 1980, wife had moved out of the couple's house and had 

returned to her home in Great Falls. 

Wife was pregnant at the time of the separation and in 

August, 1980, gave birth to a son named J.C. This separation 

proved to be more or less final, and although the parties 

made many attempts at reconciliation and stayed at each 

other's houses frequently, they never resumed their marital 

relationship. Husband filed for dissolution in May, 1981. 

Their last cohabitation was in January, 1983. 

Wife was given temporary custody of J.C. until trial on 

the issues of child custody, child support and distribution 

of property could be had. However, in 1984, while the case 

was still pending, husband moved for temporary custody, 

claiming that J.C. had been sexually molested by a boyfriend 

of wife's. A hearing was held on July 9, 1984, after which 

custody was transferred to husband. The District Court 

granted wife visitation rights, providing that she 

discontinue her relationship with the boyfriend. She did. 

While the marriage was finally dissolved in the spring 

of 1985, the issues of child custody, child support and 

distribution of the marital property were not settled until 

after a trial held in October and November, 1985. In March, 
1986, the District Court issued its formal decree, granting 

custody of J.C. to wife, awarding wife $275 child support per 

month and $15,000 cash in lieu of the division of the marital 

estate. The court refused wife ' s request for attorney's 

fees. Both parties now appeal. 

The first issue raised by husband is whether the 

District Court erred in awarding custody of J.C. to wife. 

The second issue is raised by both husband and wife. Both 

claim the District Court erred in dividing the marital 

property. Additionally, wife claims the District Court erred 

in its determination regarding the amount of child support 

awarded, erred by failing to compel husband to make full 

financial disclosure, and erred by refusing to award P.R.C. 

attorney's fees. 

We will address the custody issue first. Husband 

asserts that the District Court abused its discretion by 

granting custody to wife in the face of evidence suggesting 

that J.C. was sexually abused while under wife's care and may 

be at risk of further abuse. He also asserts that the court 

ignored evidence in making its findings of fact under 5 

40-4-212, MCA. 

Section 40-4-212, states: 

The court shall determine custody in accordance 

with the best interest of the child. The court 

shall consider all relevant factors including: 

(1) the wishes of the child's parent or parents as 

to his custody; 

(2) the wishes of the child as to his custodian; 

(3) the interaction and interrelationship of the 

child with his parent or parents, his siblings, and 

any other person who may significantly affect the 

child's best interest; 

(4) the child's adjustment to his home, school and 

community; and 
(5) the mental and physical health of all 

individuals involved. 

Husband concedes that the District Court made sufficient 

findings on the elements contained in subsections 1, 2 and 4, 

but argues that it ignored evidence in making findings 

regarding subsections 3 and 5. Husband asserts that the 

trial court did not consider all the available evidence when 

it considered subsections 3 and 5. We disagree. 

In support of his argument that the trial court ignored 

evidence that weighed to his advantage regarding wife's 

mental health, husband points to the negative evidence 

available suggesting that she was hallucinatory and suffered 

from delusions. This Court notes that the trial court 

seriously considered this testimony, but that it weighed it 

against expert and character witnesses attesting to wife's 

overall good mental health and emotional improvement. This 

is the role of the trial court. "The responsibility of 

deciding custody is a delicate one which is lodged with the 

district court. The judge hearing oral testimony in such a 

controversy has a superior advantage in determining the same, 

and his decision ought not to be disturbed except on a clear 

showing of abuse of discretion." In Re Marriage of Obergfell 

(Mont. 1985), 708 P.2d 561, 563, 42 St.Rep. 1414, 1417, see 

also In Re the Marriage of Nalivka (Mont. 1986), 720 P.2d 

683, 43 St.Rep. 1079. 

In a parallel argument, husband asserts that the 

District Court ignored the evidence he presented that wife 

was ineffective in disciplining J.C. He maintains that this 

evidence is central to the court's findings pertaining to 

subsection 3, and that the District Court did not effectively 

address "the interaction and interrelationship of the child 

with his parent or parents . . ." 
It is clear to this Court that when the District Court 

weighed the evidence, it gave ample attention to the facts 

argued by husband. Nonetheless, custody was awarded to wife. 

The arguments presented to this Court do not suggest that the 

trial court erred. There is no clear showing that the trial 

court abused its discretion in concluding that custody go to 

wife. None of the factors of g 40-4-212 have been overlooked 

in reaching the conclusion. The trial court's findings were 

sufficiently explicit and supported by substantial evidence. 

We affirm its decision. 

Finally, husband points to evidence suggesting that 

wife's boyfriend sexually abused J.C. and argues that the 

District Court failed to fully consider the implications of 

awarding the custody to wife. We disagree. The ~istrict 

Court found: 

Although never confirmed, the alleged perpetrator 

of the molestation was an acquaintance of 

Respondent. Upon learning of the molestation, 

Respondent immediately severed contact with the 

alleged perpetrator. There is no evidence to 

indicate that Respondent was in any way involved in 

the sexual molestation. In this regard, Dr. 

Krajacich, the child's psychologist, testified that 

he did not think that Respondent knew of, was 

present during, or participated in the sexual abuse 

of the child. 

This Court will not substitute its judgment for that of 

the trier of fact. In this case, the trial court is in the 

best position to observe the witnesses and acquire a feel for 

their credibility and character. The evidence presented in 

husband's argument to this Court is the same as that 

presented to the trial court. Husband's evidence does not 

outweigh the substantial credible evidence justifying the 

award of custody to wife. 

The second issue, raised by both husband and wife, is 

whether the District Court erred in dividing the marital 
property. The District Court ordered husband to pay wife 

$15,000 over a two-year period. Husband had requested that 

wife be given nothing, arguing that she had contributed 

nothing to the marriage. Wife requested that she be given 

half of the net marital estate. The District Court explained 

its conclusion: 

Although the parties were married only a relatively 

short period of time before the Petition for 

Dissolution was filed and although [wife] did not 

contribute financially to the marriage, I do not 

conclude that [wife] is not entitled to anything as 

proposed by [husband]. The decision that [wife] 

quit her job was a joint one. It allowed the 

parties to be able to spend more time together and 

to travel. While it is true that the parties could 

have had children even if [wife] had not quit work, 

the fact is that [wife] did become pregnant shortly 

after the marriage, which was the intention of the 

parties. Because of this, I conclude that [wife] 

is entitled to something although certainly not 

half as requested by her. Because the parties did 

not acquire any property jointly and because of the 

nature of the property and the manner in which the 

issue was submitted, I conclude that the only 

equitable and reasonable way in which the property 

can be apportioned is for [husband! to make a cash 

payment to [wife] and I determine that under the 

circumstances of this case a reasonable amount 

would be $15,000 which could be paid over a period 

of 2 years. In addition [wife] should be entitled 

to keep the various items of personal property 

which were given to her during the marriage and 

which she now has in her possession. 

Wife contends that the trial court did not properly 

assess her contribution to the estate, arguing that her 

contribution as a wife and mother should be given equal 

weight against husband's monetary contribution for the 

purposes of dividing the marital property, even though 

husband provided the bulk of the marital estate. She cites 

Jacobson v. Jacobson (1979), 183 Mont. 517, 600 P.2d 1183, to 

support her proposition. We note that Jacobson concerns 
distribution of a family ranch after a 25 year marriage. The 

investment of the wife in that case is easily distinguished 

from the instant case, where the wife's nonmonetary 

contributions were minimal and the marriage was short in 

duration. 

This Court's function . . . is not to substitute 

its judgment in place of the trier of facts but 

rather it is "confined to determine whether there 

is substantial credible evidence to support" the 

findings of fact and conclusions of law. 

(Citations omitted.) Although conflicts may exist 

in the evidence presented, it is the duty and 

function of the trial judge to resolve such 

conflicts. His findings will not be disturbed on 

appeal where they are based on substantial though 

conflicting evidence. (Citations omitted.) 

In re the Marriage of Gallinger & Weissman (Mont. 1986), 719 

P.2d 777, 780-781, 43 St.Rep. 976, 981; Marriage of Wessel 

(Mont. 1986), 715 P.2d 45, 50, 43 St.Rep. 405, 411-412. 

Both wife and husband have failed to show that the 

court's evaluation of their contributions was arbitrary, 

without conscious judgment or beyond the bounds of reason. 

We find substantial evidence to support the District Court's 

finding that wife made no contribution toward the acquisition 

or preservation of husband's estate. We also hold that the 

District Court properly ordered the $15,000 payment to wife 

rather than force division of property in which she had only 

a brief interest. Further, we believe the District Court 

correctly refused husband's argument that wife receive 

nothing; for in fact wife did leave her job to care for their 

child and contributed as a homemaker in their relatively 

brief period of cohabitation. 

As part and parcel of her argument regarding 

distribution of the marital estate, wife argues that the 

District Court erred by failing to compel husband to make 

ful.1 financial disclosure. Wife presents insubstantial 
evidence detailing the specifics of her charge. Clearly, 

husband's representations and inconsistencies over the amount 

of his estate were presented in full to the District Court. 

As we have stated before, the District Court's judgment will 

not be altered without a showing of clear abuse of 

discretion. The test of discretion is whether the trial 

court acted arbitrarily, without employment of conscientious 

judgment, or exceeded the bounds of reason, resulting in 

substantial injustice. In re the Marriage of Gallinger & 

Weissman, supra. The District Court's findings were 

sufficient to support its property division in this matter. 

Wife further contends that the District Court acted 

arbitrarily in determining that J.C. had financial needs of 

approximately $450 per month, and that this justified a child 

support payment to her from husband of $275 per month. Wife 

argues that husband's schedule of J.C. ' s financial needs 

showed $1,044 per month while her assessment suggested the 

support of J.C. cost $630 per month. 

The District Court found that if the marriage had not 

been dissolved, the child would have enjoyed a very good 

standard of living and determined his support costs to be 

$450 per month. The District Court made this assessment 

based on substantial evidence placed in the record by the 

parties relating to J.C.'s physical, medical and emotional 

needs. Again, there is nothing to suggest that the District 

Court erred in reaching the support figures. 

Finally, wife argues that the trial court erred in 

failing to award her attorney's fees. She asserts that 

husband's conduct has been vexatious, harassing and 

unreasonable under the circumstances, directing this Court's 

attention to matters not within the record on this appeal. 

She argues that husband's activities have resulted in 
needless legal proceedings, again pointing in part to matters 

not within this record. 

The awarding of attorney's fees is governed by § 

40-4-110, MCA. The standard for reviewing a district court's 

decision not to award attorney's fees under $ 40-4-110 is 

whether the court abused its discretion in refusing to award 

such fees. In re Marriage of Nalivka (1986), 720 P.2d at 

688, 43 St.Rep. at 1085; In re Marriage of Gallinger & 

Weissman (Mont. 1986), 719 P.2d 777, 43 St.Rep. 976. Wife 

argues that the trial court abused its discretion because it 

failed to state reasons for the denial. In the past, this 

lack of specificity would have constituted remandable error. 

However, this Court, in In re the Marriage of Gallinger & 

Weissman, specifically overruled that requirement, adopting 

instead the "abuse of discretion" standard for reviewing the 

District Court's award of attorney's fees. 

In this case, we hold the trial court did not abuse its 

discretion in refusing to award the wife her attorney's fees. 

The record indicates the court was well aware of the 

financial resources of both parties, and, although the wife 

was clearly not in as strong a financial position as the 

husband, the record indicates she still has sufficient 

financial resources to be responsible for her own attorney's 

fees. 

Affirmed. 

We Concur: 

Chief Justice