No. 85-476 INTHE SUPREME COURT OF THE STATE OF MONTANA 1986

INRE THE MARRIAGE OF JACQUELINE LEE NALIVKA, Petitionerand Appellant, and JOHN PETER NALIVKA, Respondentand Respondent.

APPEAL FROM: DistrictCourtof the TwelfthJudicialDistrict, Inand for the Countyof Hill, The Honorable ChanEttien, Judge presiding.

COUNSEL OF RECORD:

For Appellant: James, Gray & McCafferty; BrianBulger, GreatFalls, Montana.

ForRespondent: Morrison, Barron & Young; RobertD. Morrison, Havre, Montana

Submittedon Briefs: March 28, 1986 Decided: June 12, 1986

Filed: 

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## 127986Mr. Justice JohnConwayHarrisondelivered theOpinion of the Court.

This is an appealby the wife froman order of custody made by the District Court of the Twelfth Judicial District, HillCounty,the Honorable Chan Ettienpresiding. We affirm. Jacqueline Nalivka ("wife" ) and John Nalivka ("husband") were married in 1978 in Havre, Montana. Two childrenwere born of the marriage, namely Roman and Suzanne who were five years of age and three years of age, respectively, at the time of trial. Wife also had a minor child from a previous marriage named Jennifer. No attempt

was ever made by husband to adopt Jennifer and therefore husband hasno standing concerning her custody. At the time of trial,wife was 26 years of age and had resided in Havre for ten years. Shewas a homemaker and was attending Northern Montana College on a full-time basis in pursuit of a degree in specialeducation. Currently,wife is residing in Billings,Montana, in order to complete her work toward a degree in special education. At the time of trial,husbandwas 30yearsofageand a partner in a family owned business named "Pizzaand Catering Kitchen" in Havre. Husband has resided in Havre his entire life.After wife filed her petition for dissolution in January of 1984 and husband thereafter responded, trial of this matter was held in April of 1985. The parties had previously agreed to a divisionof theirmaritalproperty and also neither party requested maintenance, so these issues were not indisputeduring trial. Also husband agreed topay wife her requested child support if she were awarded custody of the children. Therefore, the principal issue to bedecided by the trial court was the matter of custody regarding Roman and Suzanne. In July of 1985,the trial court issued its findings of fact, conclusions of law, and decree which dissolved the marriage of the parties and ordered in part the following: 1. Husband shall have legal custody of the children (Roman and Suzanne) at all times,and their physical custody fromAugust 24 to June 7of each calendaryear. 2. Wife shall have extended visitation and physical custody of the children from June 7 to August 23 of each calendaryear. 3. While husband and wife are within a fifty-mile radius of each other, each non-custodial parent shall have the privilege of visitation on alternating weekends, with each non-custodial parent being responsible for picking the childrenup and returning them to the custodialparent. 

### 4. Nothing herein shall limit agreed visitation periods. 5. Wife shallpay her own attorney's fees. In light of the above trial court order, wife now presents the following issues forreview: 1. Was the trial court's rejection without explanation of jointcustody as requestedby both parties error? 2. Did the trial court err in refusing to make findings concerning the interrelationshipof all the children as mandated by § 40-4-212(3), MCA? 3. Was the grant of sole custody to husband in the children'sbest interests? 4. Is the fifty-mile radius limitation imposed by the trial court reasonable and in the best interests of the children?5. Did the trial court err in refusing to order husband topay wife's attorney's fees?

Custodv The first three issues presented by wife may be discussed together. Wife points out at the beginning of trial she put the court on notice that she would not object to an award of joint custody regarding Roman and Suzanne. Further, wife notes that both parties requested joint custody in their proposed findings of fact. Wife also asserts that the parties' request for joint custody triggered the provisions of S 40-4-224, MCA (1983),which states in pertinent part: (1) Upon applicationof eitherparent or bothparents for joint custody,the court shall consider whether or not joint custody is in the best interests of a minor child. If the court declines to enter an order awarding joint custody, the court shall state in its decision the reasons for denial of an award of joint custody. Wife now argues a close reading of the trial court's findings of fact and conclusions of law does not contain any indication of why the parties' request for joint custodywas rejected. Wife points out this type of omissionby the trial court has been held to constitute reversible error. See, Murphy v. Murphy (Mont. 1983), 666 P.2d 755, 40 St.Rep. 1188. Therefore, wife argues, because the trial court's findings and conclusions do not comply with S 40-4-224, MCA (1983)

## , the custody awardmust be vacated and this cause remanded for further proceedings. We disagree. The trial court made it clear at the outset of trial that although joint custody had been requested by both parties, it would make its determination of custody basedonly upon what was in the best interests of the children: "Of course, you understand that the court must award in the best interests of the children even if there is an agreement." Judge Ettien went on in his decision to make numerous and specific findings which clearly reflected why it would not be in the best interests of the children to be placed in the joint custody of theparties. 1. Wife is chronicallydirty and slovenly in the care of her house and her children. She has not made even a pretense ofmaintaining a semblance of cleanliness and order inher home during thependency of thisaction. 2. The complete lack of sanitation in her housekeeping and child care, and her indifference in serving nourishing food to the children are a threat to their health, and an invitationto the children to adopt similarhabits. 3. The above is in contrast to her own meticulous dress and grooming when she is pursuing her outside interests. 4. Wife, for now and the foreseeable future, is more interested in obtaining her personal ends. This, coupled with her lack of interest in housekeeping and child care, will notprovide the childrenwith ahomelifewhich they need

now and in the foreseeable future. 5. Husband appears significantly more interested and dedicated to the welfare of the children. While it is recognizedboth parents love their childrenandwant thebest for them,husband's actions showa far deeper concern for the good of the childrenthan thoseofwife. 6. It is not in the best interests of the children to be in joint custodyof the parties, but in the custodial careof the husband subject to visitation privileges in the parents as set forthherein. In light of these findings, we hold the trial court adequately followed the requirements of S 40-4-224, MCA

(f983),"in'stating why it rejected the parties' request for

an award of joint custody. We further hold the trial court correctly followed the applicable law in making its award of legal custody to husband. As wife correctly points out, an award of custody is to be determined in accordancewith the best interests of the children. In determining custody in accordance with these interests, the trial court is statutorily required to consider a number of factors pursuant to S 40-4-212, MCA. The court shall determine the custody in accordancewith 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 interrelation 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. Wife now argues the trial court erred in not making specific findingswhich addressed the requirements listed in S 40-4-212, especially with regard to subsection (3). We note that although the trial court did not specifically discuss the factors set out in S 40-4-212, it did make

numerous findings which generally satisfied the statute. This Court has stated that a trial court's findingsneed not be in any particular form if there is substantial credible evidence to support the trial judge's judgment on themerits. See, In ReMarriage of Baron (1978), 177Mont. 161, 580 P.2d936. Although this Court would prefer a trial court to specifically address the factors listed in S 40-4-212 in its findings, failure todo so isnot always fatal. In the present case, Judge Ettien made numerous findings which basically addressed the factors set out in S 40-4-212. These findings were also supported by substantial credible evidence in the record. Specifically, with regard to subsection (3) (the interaction and interrelationshipof the children with others), Judge Ettien found that wife was more interested in satisfying her own personal needs,and this coupledwith her lack of interest in housekeeping and child care,would not provide the children with a homelifewhich they needed now and in the foreseeable future. Also, Judge Ettien noted that husband had a deeper

concern for the good of the children than didwife. We hold that although the trial court did not specifically discuss the guidelines contained in S 40-4-212, itdid adequately consider these items inmaking its award of custody to husband. We furthernote that after reviewing the record in this case, there are several factors that point favorably toward wife in determining custody of the children. However, we note it isnot a questionof theparticular fitnessof either parent, but rather what is in the best interests of the children. As this Courthas stated: 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. [Citing cases.1In Re Marriage of Obergfell (Mont. 1985), 708 P.2d 561, 563, 42 St.Rep. 1414,1417. We hold the trial courtdid not abuse its discretion in awarding husband custodyof the children.

Visitation Under the fourth issue, wife notes the trial court chose to limit theparties' weekend visitation rights to only those times when the parties might livewithin a fifty-mile radius of each other. Wife now argues neither parties' visitation rights (especially her's) should be so limited without a compelling reason being stated by the trial court in itsdecision. In its findings and conclusions (as stated earlier), the trial courtordered the following: 1. While husband and wife are within a fifty-mile radius of each other, each non-custodial parent shall have the privilege of visitation on alternating weekends, with each non-custodial parent being responsible for picking the childrenup and returning them to the custodialparent. 2. Nothing herein shall limit agreed visitation periods. We find the above fifty-mile radius limitation imposed by the trial court tobe both reasonableand also in thebest interests of the children. Although the trial court did not specifically state the reasons why it imposed such a limitation, its purpose seems clear. As indicated in the facts section,of this opinion, wife is currently living in Billings while completing her degree in special education. The trial court realized that allowing alternating weekend visitation with the non-custodial parent would be a hardshipon the children (not tomention the parents) if the children had to travel continuously between Billings and Havre. The trial court appears to have balanced the benefit of having the children visit their non-custodial parent every other weekend with the risk and inconvenience of having the children travel frequently between Billings and Havre. We agree with the trial court that a fifty-mile visitation restriction isnot unreasonable and also appears tobe in the best interestsof the children. It is also important to note that the trial court concluded and ordered that nothing in its decision should be construed so as to limit agreed visitation periods between the parties. By this statement the trial court left open to the parties anyvisitation arrangements they might agreeupon between themselves. Such an opportunity takes away the apparent harshness of the fifty-mile radius limitation, and appears to givewife (andhusband) ample opportunity tovisit the children. Further, the parties gave every indication during trial that liberal visitation arrangements would not be aproblem between them in the future. Therefore, the fifty-mile radius limitation imposed by the trial court isnot an abuse of itsdiscretion.

Attorney's Fees Under the last issue, wife contends the trial court erred in refusing to order husband to pay her attorney's fees. We disagree. As both parties are well aware, the awarding of attorney's fees are governed by § 40-4-110,MCA. This Court has repeatedly said that the awarding of attorney's fees isclearly permissive under this statute. Marriage 

### - of Obergfell, 708 P.2d at 564. Wife further correctly points out this Courthas stated in the past that when a trial court refuses to award attorney's fees under $i 40-4-110, it must indicate its reasons for refusing to grant such fees. See, InRe Marriage of Gauthier (1982), 201 Mont. 320, 654 P.2d 517. In the instant case, the trial court refused to award wife her attorney's fees and did not indicateany specificreasons for such a denial. In the past, this lack of specificityby the trial courtwould have constituted remandable error,but this is not always true today. This Court has very recently adopted a new standard for reviewinga trial court's decision not to award attorney's feesunder 5 40-4-110. This Court has also stated in the past "thatwhen the District Court refuses to award attorney's fees, it must indicate in the findings of fact, conclusions of law, or order why such fees were not awarded." See, Lewis v. Lewis (1982), 198 Mont. 51, 55, 643 P.2d 604, 606,and cases cited therein. Failure to set forth the specific reasons for denial of attorney's fees, we stated in these earlier cases, constituted remandable error. We now hold the rule expressed in the Lewis opinion, and earlier opinions, to be revised. Such a rule is much too harsh to be applied on a general basis. We hold a more appropriate standard for reviewinga District Court'sdecisionnot to award attorney's feesunder § 40-4-110 is whether the court abused its discretion in refusing to award such fees. Such a standard is more in line with this Court's other standards of review regarding dissolution actions,and also is more in line with 5 40-4-110. In Re the Marriage of Gallinger and Weissman (Mont. 1986)

## , P.2d -1 -1 

## -St.Rep. -1 

## - , (No. 85-465; decided June 5,1986)

# .In the instant case, we hold the trial court did not abuse its discretion in refusing to awardwife her attorney's fees. The record indicates the courtwas well aware of the financial resources of both parties as required by 

### 5 40-4-110. After considering this information, the court concluded that neither party was entitled to be awarded attorney's fees. Althoughwife clearly is not inas strong a financial position as husband, the record indicates she still has sufficient financialmeans to be responsible forher own attorney's fees. The judgment of the District Court is affirmed in all respects.

We concur: 

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