No. 85-476 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

IN RE THE MARRIAGE OF 

JACQUELINE LEE NALIVKA, 

Petitioner and Appellant, 

and 

JOHN PETER NALIVKA, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Twelfth Judicial District, 

In and for the County of Hill, 

The Honorable Chan Ettien, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

James, Gray & McCafferty; Brian Bulger, Great Falls, 

Montana. 

For Respondent: 

Morrison, Barron & Young; Robert D. Morrison, Havre, 

Montana 

Submitted on Briefs: March 28, 1986 

Decided: June 12, 1986 

Filed: 

.JUN 12 7986 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal by the wife from an order of custody 

made by the District Court of the Twelfth Judicial District, 

Hill County, the Honorable Chan Ettien presiding. We affirm. 

Jacqueline Nalivka ("wife" ) and John Nalivka 

("husband") were married in 1978 in Havre, Montana. Two 

children were 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 has no standing concerning her custody. 

At the time of trial, wife was 26 years of age and had 

resided in Havre for ten years. She was a homemaker and was 

attending Northern Montana College on a full-time basis in 

pursuit of a degree in special education. Currently, wife is 

residing in Billings, Montana, in order to complete her work 

toward a degree in special education. 

At the time of trial, husband was 30 years of age and a 

partner in a family owned business named "Pizza and 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 division of their marital property and 

also neither party requested maintenance, so these issues 

were not in dispute during trial. Also husband agreed to pay 

wife her requested child support if she were awarded custody 

of the children. Therefore, the principal issue to be 
decided 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 

from August 24 to June 7 of each calendar year. 

2. Wife shall have extended visitation and physical 

custody of the children from June 7 to August 23 of each 

calendar year. 

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 

children up and returning them to the custodial parent. 

4. Nothing herein shall limit agreed visitation 

periods. 

5. Wife shall pay her own attorney's fees. 

In light of the above trial court order, wife now 

presents the following issues for review: 

1. Was the trial court's rejection without explanation 

of joint custody as requested by both parties error? 

2. Did the trial court err in refusing to make 

findings concerning the interrelationship of all the children 

as mandated by § 40-4-212(3), MCA? 

3. Was the grant of sole custody to husband in the 

children's best 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 to pay 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 application of either parent or 

both parents 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 custody was 

rejected. Wife points out this type of omission by 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 award must 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 based 
only 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 the parties. 

1. Wife is chronically dirty and slovenly in the care 

of her house and her children. She has not made even a 

pretense of maintaining a semblance of cleanliness and order 

in her home during the pendency of this action. 

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 

invitation to the children to adopt similar habits. 

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 not provide the children with a homelife which 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 

recognized both parents love their children and want the best 

for them, husband's actions show a far deeper concern for the 

good of the children than those of wife. 

6. It is not in the best interests of the children to 

be in joint custody of the parties, but in the custodial care 
of the husband subject to visitation privileges in the 

parents as set forth herein. 

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 accordance with 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 

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 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 findings which 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 findings need not 

be in any particular form if there is substantial credible 

evidence to support the trial judge's judgment on the merits. 

See, In ReMarriage of Baron (1978), 177 Mont. 161, 580 P.2d 
936. Although this Court would prefer a trial court to 

specifically address the factors listed in S 40-4-212 in its 

findings, failure to do so is not 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 

interrelationship of the children with others), Judge Ettien 

found that wife was more interested in satisfying her own 

personal needs, and this coupled with her lack of interest in 

housekeeping and child care, would not provide the children 

with a homelife which 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 did wife. 

We hold that although the trial court did not 

specifically discuss the guidelines contained in S 40-4-212, 

it did adequately consider these items in making its award of 

custody to husband. 

We further note 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 is not a question of the particular fitness of either 

parent, but rather what is in the best interests of the 

children. As this Court has 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. 1 
In Re Marriage of Obergfell (Mont. 1985), 708 P.2d 561, 563, 

42 St.Rep. 1414, 1417. 

We hold the trial court did not abuse its discretion in 

awarding husband custody of the children. 

Visitation 

Under the fourth issue, wife notes the trial court 

chose to limit the parties' weekend visitation rights to only 

those times when the parties might live within 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 its decision. 

In its findings and conclusions (as stated earlier), 

the trial court ordered 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 

children up and returning them to the custodial parent. 

2. Nothing herein shall limit agreed visitation 

periods. 

We find the above fifty-mile radius limitation imposed 

by the trial court to be both reasonable and also in the best 

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 hardship 
on the children (not to mention 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 is not unreasonable and also appears to be in the 

best interests of 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 any visitation arrangements they might agree upon 

between themselves. Such an opportunity takes away the 

apparent harshness of the fifty-mile radius limitation, and 

appears to give wife (and husband) ample opportunity to visit 

the children. Further, the parties gave every indication 

during trial that liberal visitation arrangements would not 

be a problem between them in the future. 

Therefore, the fifty-mile radius limitation imposed by 

the trial court is not an abuse of its discretion. 

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 is 
clearly permissive under this statute. Marriage - of 

Obergfell, 708 P.2d at 564. 

Wife further correctly points out this Court has 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, In Re 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 indicate any specific reasons for 

such a denial. In the past, this lack of specificity by the 

trial court would have constituted remandable error, but this 

is not always true today. This Court has very recently 

adopted a new standard for reviewing a trial court's decision 

not to award attorney's fees under 5 40-4-110. 

This Court has also stated in the past 

"that when 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 

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. 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 award wife her attorney's 

fees. The record indicates the court was 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. Although wife clearly is not in as strong a 

financial position as husband, the record indicates she still 

has sufficient financial means to be responsible for her own 

attorney's fees. 

The judgment of the District Court is affirmed in all 

respects. 

We concur: i I